Ordinance 13-2003ORDINANCE NO.13-2003
AN ORDINANCE OF THE CITY OF LONGWOOD, FLORIDA,
APPROVING AND AUTHORIZING THE EXECUTION AND
DELIVERY OF EQUIPMENT SCHEDULE NO. 5 TO FIRST
AMENDED MASTER LEASE AGREEMENT WITH SUNTRUST
EQUIPMENT FINANCE & LEASING CORP., AN ESCROW
AGREEMENT, AND RELATED INSTRUMENTS, AND
DETERMINING OTHER MATTERS IN CONNECTION
THEREWITH; PROVIDING FOR CONFLICTS, SEVERABILITY
AND AN EFFECTIVE DATE.
WHEREAS, the governing body of the City of Longwood, Florida ("Lessee" or "City")
desires to obtain certain equipment (the "Equipment") described in the Equipment Schedule No.
05 to the First Amended Master Lease Agreement (collectively, the "Lease") with SUNTRUST
EQUIPMENT FINANCE & LEASING CORP. dated December 15, 2010, the form of which has
been available for review by the governing body of Lessee prior to adoption of this Ordinance;
and
WHEREAS, the Equipment is essential for the Lessee to perform its governmental
functions; and
WHEREAS, the funds made available under the Lease will be deposited with
SUNTRUST BANK (the "Escrow Agent") pursuant to an Escrow Agreement between Lessee
and the Escrow Agent (the Escrow Agreement") and will be applied to the acquisition of the
Equipment in accordance with said Escrow Agreement; and
WHEREAS, Lessee has taken the necessary steps, including those relating to any
applicable legal bidding requirements, to arrange for the acquisition of the Equipment; and
WHEREAS, Lessee proposes to enter into the Lease with SUNTRUST EQUIPMENT
FINANCE & LEASING CORP. and the Escrow Agreement with the Escrow Agent substantially
in the forms attached to this Ordinance; and
WHEREAS, the City Commission finds that entering into and approving the Lease, the
Escrow Agreement and other related instruments generally in the forms attached to this
Ordinance (collectively, the "Financing Documents") are in the best interests of the Lessee for
the acquisition of the Equipment.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF LONGWOOD, FLORIDA AS FOLLOWS:
Page 1 of 3
Section 1. Recitals. The above recitals are true and correct and constitute the City
Commission's findings.
Section 2. Approval. The Financing Documents and the acquisition and financing of
the Equipment under the terms and conditions as described in the Financing Documents attached
to this Ordinance are hereby approved. The Mayor and any other officer of the City of
Longwood who shall have the power to execute contracts on behalf of the City be, and each of
them hereby is, authorized to execute, acknowledge and deliver the Financing Documents with
any reasonable changes, insertions and omissions therein as may be approved by the officers
who execute the Financing Documents. The City Clerk of the City of Longwood and any other
officer of the City who shall have the power to do so be, and each of them hereby is, authorized
to affix the official seal of the City of Longwood to the Financing Documents and attest the
same. The proper officers of Lessee be, and each of them is, authorized and directed to execute
and deliver any and all papers, instruments, opinions, certificates, affidavits and other documents
and to do or caused to be done any and all other acts and things necessary or proper for carrying
out this Ordinance and the Financing Documents.
Section 3. Qualified Tax -Exempt. Pursuant to Section 265(b) of the Internal Revenue
Code of 1986, as amended (the "Code"), Lessee hereby specifically designates the Lease as a
"qualified tax-exempt obligation" for purposes of Section 265(b)(3) of the Code.
Section 4. Conflicts. If any Ordinances or parts of thereof are in conflict herewith, this
Ordinance shall control to the extent of the conflict.
Section 5. Severability. If any portion of this Ordinance is determined to void,
unconstitutional, or invalid by a court of competent jurisdiction, the remainder of this Ordinance
shall remain in full force and effect.
Section 6. Effective Date. This Ordinance shall take effect upon its second reading and
final adoption by City Commission.
FIRST READING this `��day of r arm A.D. 2013.
SECOND READING AND ADOPTION this JAA day of �.6r a(' y, A.D. 2013.
CITY COMMISSION
WOFGWOOD, FLORWA
Brian D. Sackett, MOr
Page 2 of
ATTEST:
Sarah M. Mirus, City Clerk
Approved as to�orW and legality for the use and reliance of the City of Longwood, Florida only.
W.
Page 3 of 3
00 Svnfhevsr
If a change is implemented to your setup for a service on an incremental
basis, that change supplements (as an addition, deletion or modification), but
does not replace, the information in your setup for that service. For example, if
an incremental service profile indicates that it adds a new authorized user for a
service, all existing authorized users for that service continue to be authorized
users unless you specifically request that we delete one or more of them and
that deletion is reflected in a separate service profile that you confirm (in a
manner acceptable to us).
If a change is implemented to your setup for a service on a complete
replacement basis, the information identified in that service profile completely
replaces the information in your setup for that service, to the extent indicated in
that service profile. In that regard, information can be completely replaced
(a) only for the account(s) identified on the service profile, (b) only for the
combination of the account(s) and linked feature(s) of the service identified on
the service profile or (c) for all accounts using the service.
For example, I a service profile indicates that it completely replaces all of
your previous service profiles for a service with respect to the account(s)
Identified in that service profile, then only the authorized users identified in that
service profile are authorized to use the service with respect to the identified
account(s). However, none of your service profiles for other accounts using
that service are affected and all authorized users listed on them continue to be
authorized users with respect to those other accounts.
Alternatively, if a service profile indicates that it completely replaces all of
your previous service profiles for the combination of an account and lockbox
Identified in that service profile, then only the image delivery option(s) selected
In that service profile will be provided with respect to the combination of the
identified account and loc kbox. However, none of your service profiles for other
combinations of accounts and loclkboxes for that service are affected and all
image delivery options selected in them will continue to be provided with
respect to those other combinations of accounts and loc kboxes
Finally, if a service profile indicates that it completely replaces all of your
previous service profiles for a service, then only the options Identified in that
service profile will apply with respect to any of your accounts using that service.
None of your previous service profiles for that service are effective and none of
the options identified on them will apply with respect to any of your accounts
using the service.
We may refuse to accept letters, a -mails or other forms of communication
that instruct us to change your setup for a service if those instructions are of the
type reflected on a service profile. However, you agree that we may (at our
option) accept an e-mail that purports to be from one of your authorized signers
and that instructs us to delete one or more accounts from your setup for a
service without requiring you to confirm a service profile reflecting that
instruction.
6. Electronic Records and Signatures. You consent to the use of electronic
records and signatures with respect to your use of the services. Without limiting
the types of electronic signatures we may accept, you agree that, If we elect (at
our option) to send a service profile to you as an attachment to an e-mail
message, you (a) will be deemed to have confirmed that service profile is
Rev. 11/25/08
Longwood (ivg 12.18.12)
TREASURY MANAGEMENT
MASTER AGREEMENT
correct if we receive an e-mail message to that effect that purports to be from
one of your authorized signers, (b) adopt that e-mail message as your
electronic signature with the intent to sign that service profile and (c) will be
bound by that service profile to the same extent as if one of your authorized
signers had printed, signed and given it to us.
7. Acknowledgement of Recelpt and Agreement to be Bound. By signing
below (and each time you confirm a service profile), you acknowledge that you
have received (or have been given electronic access, including the necessary
password, to) a complete copy of, and that you have read, understand and
agree to be bound by all provisions of our treasury management terms and
conditions (including, without limitation, those that (a) limit our liability to you,
(b) obligate you to indemnify us, (c) authorize us to rely on authorizatlon
codes, (d) waive the right to a Jury trial and (a) require binding arbitration)
in the form and with the content then posted on the identified website (as we
may update them from time to time) with respect to your use of all services. Any
obligations for you to indemnify, defend, and hold us harmless are limited to the
extent provided under Section 768.28, Florida Statutes. This provision shall not
be construed as waiving any defense, immunity from or limitation of liability
which you might be entitled to, including but not limited to sovereign immunity.
Signature. This master agreement has been signed and delivered (which
you agree may be by facsimile or e-mail attachment) on your behalf by the
person whose name is printed below. That person represents and warrants to
us that he or she is one of your authorized signers and that you have taken all
action required by your organizational documents to authorize him or her to sign
and deliver this master agreement (and any other documents we may require
with respect to the services) on your behalf. The agreement completely
replaces any other ones you have given us in the past with respect to the
services, except that any instructions you have given us under any such past
agreements continue to be effective until replaced or deleted in accordance with
the agreement (including, without limitation, through a service profile or an
implementation/setup form).
Client Name:
City of Logo d
Authorized Signer:
Print Name:
1',
Print Title:
Pf a Yo r-
Address:
155 W arren Ave
Longwood, FL 327504107
E-Mail:
bsa 0 e'er "Vod F j •
Phone:
Fax:
p ;vao,r.
Date:
d
F�bruy�f 18i Z �13
Page 2 of 2
00 sINTRUST
1. Introduction. SunTrust Bank offers a full range of treasury management
services to our clients. Throughout this master agreement, (a) SunTrust Bank
Is referred to as 'we," "us" or 'our; (b) the treasury management services
described in our treasury management terms and conditions referred to below
are referred to as the 'services,' (c) this master agreement and the other
documents described below are together referred to as the "agreement," (d) the
person or entity using one or more of the services is referred to as "you' or
'your" and (a) the individuals identified In any resolution, certificate, delegation
of authority or other document that you have given us as having authority to
enter into or amend the agreement on your behalf are referred to as your
"authorized signers'
When you sign this master agreement you are agreeing to be bound by
the terms and conditions of the agreement. The agreement is a legally binding
contract that can only be changed as provided in this master agreement.
2. Organization of Agreement. As indicated above, the agreement is made
up of several documents, each of which serves a special purpose. The relevant
documents and their purposes are as follows:
(a) Treasury Management Terms and Conditions. Our treasury
management terms and conditions fall into two categories (1) the general terms
and conditions that govern the use of all services and (ii) the specific terms and
conditions that govern the use of each individual service. The most recent
version of our treasury management terms and conditions is always posted on
the following website: www.suntrust.comhreasuryterms. You may access it at
any time by visiting the site and opening the document with the password we
have given you. We will also give you a printed copy of the current version of
those terms and conditions upon request.
(b) Master Agreement. This master agreement describes the structure
of the agreement and sets forth certain of the basic contractual provisions
relating to your use of the services.
(c) Reference Materials. The reference materials for a service provide
details regarding the functionality of that service, as well as certain formatting
and other technical requirements that you must follow when using that service.
Reference-materlals may include, without limitation, a user manual, a quick
reference guide, a service demo and/or file formats and specifications. Not
every service has inference materials.
(d) Delegation of Authority. ' A. delegation of authority is optional. By
using one, you are giving other people within your company authority with
respect to the agreement and/or the services.
(a) Service Profiles. A service profile reflects certain instructions you
give us rbgarding your setup for a particular service, such as the account(s)
linked to that seiviae, the authorized dsei for•thd service and the options you
select for that service.
(f) Imole� ion/Setup Forms An implementation/setup form is an
internal document .that We use to recgrd' additional information and/or
instructions you give us with respect to a particular service.
(g) Onlirw.Services and Software Materials. We may grant to you a
nonexclusive, nohtranderabre; lirrilfddllearisd V sublicense to use one or more
software programs in connection with certain services. There may be a
separate license agreement (which may be a 'shrink wrap" or 'click wrap"
agreement and may be with us or a third -party vendor) and/or user manual for
Rev. 11/25/08
Longwood (1vg 12.18.12)
TREASURY MANAGEMENT
MASTER AGREEMENT
some of those software programs. Those software programs and those other
Items are all part of the software materials. There may also be additional online
or'dick wrap' terms for the use of the online services. The agreement, online
terns and any applicable separate license agreement and user manual set forth
the terms and conditions relating to your right to use those online services and
software programs as well as important instructions and requirements for their
use.
(h) Rules and Regulations. The rules and regulations for deposit
accounts that you maintain with us set forth certain general provisions relating
to the establishment, maintenance and operation of your deposit accounts.
If there is any inconsistency on a particular issue among the documents
that make up the agreement, the documents will control that particular issue in
the order set forth from top to bottom above.
3. Amendments. We may change or add to the provisions of this master
agreement and any of the general terms and conditions by giving you 30
calendar days' prior notice. We may change or add to the terms and conditions
for any individual service by giving you 30 calendar days' prior notice. We may
change the information in the implementation/setup forms without giving you
notice. If you continue to use a service after any of these changes or additions
become effective (or you earlier confirm a service profile for an affected
service), you are bound by those changes or additions. If a change or addition
is required by applicable law, clearing house rules or funds transfer system
rules, or if we believe that the change or addition is necessary for the security or
Integrity of the systems that we use in providing any services for you, we may
give you notice of the change or addition promptly after we make it. In that
case, you are bound by the change or addition unless you terminate your use of
the relevant service(s) immediately after you receive our notice. We may
change or add to the terms of the software materials or the rules and
regulations by following the procedures set forth in those documents.
4. New Services. If we agree to provide a new service for you, we will create
one or more service profiles reflecting certain instructions you Ova us regarding
your setup for that new service and send or otherwise make them available to
you. You may not use that service until you have confirmed (in a manner
acceptable to us) that those service profiles are correct, you have successfully
completed any required testing or training for that service and we have
completed our implementation of your setup for that service. If you attempt to
use a new service without satisfying one or more of these conditions, we may
refuse to provide that service but, if we do provide it, you are bound by the
terms of the agreement relating to that service (including, without limitation, the
general terms and conditions and the terms and conditions for that new
service).
5. Changes to Your Setup. If we agree to change your setup for a service in
response to your instructions and those instructions are of the type reflected on
a service profile, we will send or otherwise make one or more service profiles
reflecting those Instructions available to you. That change will not take effect
until you have confirmed (in a manner acceptable to us) that those service
profiles are correct, you have successfully completed any required testing or
training for the change and we have completed our implementation of the
change. In that regard, changes to your setup for a service reflected on a
service profile will be implemented either on an 'incremental" basis or a
"complete repiacemenY basis, as reflected and to the extent indicated in the
service profile.
Page 1 of 2
4 sUNTRuST
Treasury Management Terms and Conditions
Table of Contents
Click on an item to jump to the top of the page for that section
Treasury Management Terms and Conditions........................................................................................................ 1
General Terms and Conditions for All Services....................................................................................................... 2
Account Reconciliation Service.............................................................................................................................. 9
Accounts Receivable Conversion Service............................................................................................................... 9
ACHFraud Control Service...................................................................................................................................10
ACHOrigination Service.......................................................................................................................................13
Cash Concentration Service..................................................................................................................................23
CashVault Service................................................................................................................................................24
Controlled Disbursement Service..........................................................................................................................26
Controlled Payment Service..................................................................................................................................27
ElectronicData Interchange..................................................................................................................................28
Enterprise Payment Processing Service................................................................................................................28
ImageCash Letter Service....................................................................................................................................:31
Image Cash Letter Service — Financial Institutions ............. :...................................................................................
:33
ImageDelivery Services........................................................................................................................................35
Online Bill Consolidator Service............................................................................................................................36
Online Bill Presentment and Payment Service.......................................................................................................38
OnlineCheck Deposit Service...............................................................................................................................41
OnlineCourier Service..........................................................................................................................................46
OnlineFile Transfer Service..................................................................................................................................46
Online Treasury Manager Service.........................................................................................................................47
Positive Pay and Reverse Positive Pay Service.....................................................................................................49
Pre -Encoded Deposit Service................................................................................................................................51
Return Items Transmission (°RIT") Service............................................................................................................52
ScannableLockbox Service..................................................................................................................................52
Smart Safe Daily Deposit Posting Service.............................................................................................................54
TaxPayment Service............................................................................................................................................56
Universal Payment Identification Code Service......................................................................................................57
WholesaleLockbox Service........................................:.........................................................................................57
WireTransfer Service...........................................................................................................................................59
ZeroBalance Account Service..............................................................................................................................59
FundsTransfer Agreement....................................................................................................................................60
Version 1.12 Longwood (ivg 12.18.12) Page 1 of 63
S[mfIY2UST
General Terms and Conditions for All Services
1. Introduction. SunTrust Bank offers a full range of treasury
management services to our clients. Throughout these terms and
conditions, (a) SunTrust Bank is referred to as "we," "us" or "our,"(b) the
treasury management services described in these terms and conditions
are referred to as the "services," (c) these terms and conditions and the
other documents described below are together referred to as the
"agreement," (d) the person or entity using one or more of the services
is referred to as "you" or "your" and (e) the individuals identified in any
resolution, certificate, delegation of authority or other document that you
have given us as having authority to enter into or amend the agreement
on your behalf are referred to as your "authorized signers."
2. Organization of Agreement. As indicated above, the
agreement is made up of several documents, each of which serves a
special purpose. The relevant documents and their purposes are as
follows:
(a) Treasury Management Terms and Conditions. Our
treasury management terms and conditions fall into two categories
(i) the general terms and conditions that govern the use of all services
and (ii) the specific terms and conditions that govem the use of each
individual service. The most recent version of our treasury management
terms and conditions is always posted on the following website:
www.suntrust.comltreasuryterms. You may access it at any time by
visiting the site and opening the document with the password we have
given you. We will also give you a printed copy of the current version of
those terms and conditions upon request.
(b) Master Agreement. The master agreement describes the
structure of the agreement and sets forth certain of the basic contractual
provisions relating to your use of the services.
(c) Reference Materials. The reference materials for a
service provide details regarding the functionality of that service, as well
as certain formatting and other technical requirements that you must
follow when using that service. Reference materials may include,
without limitation, a user manual, a quick reference guide, a service
demo and/or file formats and specifications. Not every service has
reference materials.
(d) Delegation of Authority. A delegation of authority is
optional. By using one, you are giving other people within your
company authority with respect to the agreement and/or the services.
(e) Service Profiles. A service profile reflects certain
instructions you give us regarding your setup for a particular service,
such as the account(s) linked to that service, the authorized users for
that service and the options you select for that service.
(f) Imolementation/Setup Forms. An implementation/setup
form is an internal document that we use to record additional information
and/or instructions you give us with respect to a particular service.
(g) Online Services and Software Materials. We may grant
to you a nonexclusive, nontransferable, limited license or sublicense to
TREASURY MANAGEMENT
TERMS AND CONDITIONS
use one or more software programs in connection with certain services.
There may be a separate license agreement (which may be a "shrink
wrap" or "dick wrap" agreement and may be with us or a thins -party
vendor) and/or user manual for some of those software programs.
Those software programs and those other items are all part of the
software materials. There may also be additional online or "click wrap"
terms for the use of the online services. The agreement, online terms
and any applicable separate license agreement and user manual set
forth the terms and conditions relating to your right to use those online
services and software programs as well as important instructions and
requirements for their use.
(h) Rules and Regulations. The rules and regulations for
deposit accounts that you maintain with us set forth certain general
provisions relating to the establishment, maintenance and operation of
your deposit accounts.
If there is any inconsistency on a particular issue among the documents
that make up the agreement, the documents will control that particular
issue in the order set forth from top to bottom above.
3. Amendments. We may change or add to the provisions of the
master agreement and any of these general terms and conditions by
giving you 30 calendar days' prior notice. We may change or add to the
terms and conditions for any individual service by giving you 30
calendar days' prior notice. We may change the information in the
implementation/setup forms without giving you notice. If you continue to
use a service after any of these changes or additions become effective
(or you earlier confirm a service profile for an affected service), you are
bound by those changes or additions. If a change or addition is required
by applicable law, clearing house rules or funds transfer system rules, or
if we believe that the change or addition is necessary for the security or
integrity of the systems that we use in providing any services for you, we
may give you notice of the change or addition promptly after we make it.
In that case, you are bound by the change or addition unless you
terminate your use of the relevant service(s) immediately after you
receive our notice. We may change or add to the terms of the software
materials or the rules and regulations by following the procedures set
forth in those documents.
4. New Services. If we agree to provide a new service for you,
we will create one or more service profiles reflecting certain instructions
you give us regarding your setup for that new service and send or
otherwise make them available to you. You may not use that service
until you have confirmed (in a manner acceptable to us) that those
service profiles are correct, you have successfully completed any
required testing or training for that service and we have completed our
implementation of your setup for that service. If you attempt to use a
new service without satisfying one or more of these conditions, we may
refuse to provide that service but, if we do provide it, you are bound by
the terms of the agreement relating to that service (including, without
limitation, these general terms and conditions and the terms and
conditions for that new service).
5. Changes to Your Setup. If we agree to change your setup for
Page 2 of 63
00 SvNThvsr
a service in response to your instructions and those instructions are of
the type reflected on a service profile, we will send or otherwise make
one or more service profiles reflecting those instructions available to
you. That change will not take effect until you have confirmed (in a
manner acceptable to us) that those service profiles are correct, you
have successfully completed any required testing or training for the
grange and we have completed our implementation of the change. In
that regard, changes to your setup for a service reflected on a service
profile will be implemented either on an "incremental" basis or a
"complete replacement" basis, as reflected and to the extent indicated in
the service profile.
If a change is implemented to your setup for a service on an incremental
basis, that change supplements (as an addition, deletion or
modification), but does not replace, the information in your setup for that
service. For example, if an incremental service profile indicates that it
adds a new authorized user for a service, all existing authorized users
for that service continue to be authorized users unless you specifically
request that we delete one or more of them and that deletion is reflected
in a separate service profile that you confirm (in a manner acceptable to
us).
If a change is implemented to your setup for a service on a complete
replacement basis, the information identified in that service profile
completely replaces the information in your setup for that service, to the
extent indicated in that service profile. In that regard, information can be
completely replaced (a) only for the account(s) identified on the service
profile, (b) only for the combination of the accounts) and linked
feature(s) of the service identified on the service profile or (c) for all
accounts using the service.
For example, if a service profile indicates that it completely replaces all
of your previous service profiles for a service with respect to the
account(s) identified in that service profile, then only the authorized
users identified in that service profile are authorized to use the service
with respect to the identified account(s). However, none of your service
profiles for other accounts using that service are affected and all
authorized users listed on them continue to be authorized users with
respect to those other accounts.
Altematively, if a service profile indicates that it completely replaces all
of your previous service profiles for the combination of an account and
lockbox identified in that service profile, then only the image delivery
option(s) selected in that service profile will be provided with respect to
the combination of the identified account and lockbox. However, none
of your service profiles for other combinations of accounts and
lockboxes for that service are affected and all image delivery options
selected in them will continue to be provided with respect to those other
combinations of accounts and lockboxes
Finally, if a service profile indicates that it completely replaces all of your
previous service profiles for a service, then only the options identified in
that service profile will apply with respect to any of your accounts using
that service. None of your previous service profiles for that service are
effective and none of the options identified on them will apply with
respect to any of your accounts using the service.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
We may refuse to accept letters, a -mails or other forms of
communication that instruct us to change your setup for a service if
those instructions are of the type reflected on a service profile.
However, you agree that we may (at our option) accept an e-mail that
purports to be from one of your authorized signers and that instructs us
to delete one or more accounts from your setup for a service without
requiring you to confirm a service profile reflecting that instruction.
6. Electronic Records and Signatures. You consent to the use of
electronic records and signatures with respect to your use of the
services. Without limiting the types of electronic signatures we may
accept, you agree that, if we elect (at our option) to send a service
profile to you as an attachment to an e-mail message, you (a) will be
deemed to have confirmed that service profile is correct if we receive an
e-mail message to that effect that purports to be from one of your
authorized signers, (b) adopt that e-mail message as your electronic
signature with the intent to sign that service profile and (c) will be bound
by that service profile to the same extent as if one of your authorized
signers had printed, signed and given it to us.
7. Receipt and Agreement to be Bound by Goveming
Documents. Your use of a service is governed by the master
agreement, these treasury management terms and conditions and the
other documents described in either of them. Each time you confirm a
service profile for a service you (a) acknowledge that you have received
(or have been given electronic access, including the necessary
password, to) a complete copy of, and (b) agree that, except to the
extent your use of a particular service is governed by a prior agreement,
you have read, understand and, agree to be bound by, all provisions of
these treasury management terms and conditions in the form and with
the content then posted on the identified website (as we may update
them from time to time) with respect all services you are then using.
8. Our Right to Delay or Refuse to Process Transactions. We
may delay, refuse to process and/or impose a specific fee with respect
to any item, transaction or instruction with respect to a service which
(a) does not comply with the provisions of the agreement relating to that
particular service, (b) Is not complete, correct and current, (c) is greater
in frequency or number than is permitted for the relevant account or
service, (d) is for an amount that is less than the minimum amount
permitted for the relevant account or service, (a) relates to an account
that has been dosed or exceeds the amount of available funds in the
relevant account (or would reduce the balance of the available funds in
the relevant account below any required minimum balance), (f) we
believe in good faith is not genuine, conflicts with another instruction or
relates to funds or an account over which there is a dispute or restriction
on withdrawal, (g) we suspect results from a breach in the confidentiality
of a security procedure or authorization code or relates to an account or
service that we suspect is being used for, or is the target of, fraudulent
or illegal activity, or (h) might cause us to violate applicable law or
otherwise expose us to liability. We may also suspend your ability to
use a service if any of the circumstances described In clause (g) or (h)
in the prior sentence occurs.
9. Overdrafts. As noted above, we may delay and/or refuse to
process any item, transaction or instruction that exceeds the amount of
available funds in the relevant account (or would reduce the balance of
Page 3 of 63
00 SUNTRUST
the available funds in the relevant account below any required minimum
balance). If we decide in our discretion to process an item, transaction
or instruction that exceeds the amount of available funds in the relevant
account (or would reduce the balance of the available funds in the
relevant account below any required minimum balance), you agree to
reimburse us on demand for (a) the full amount of any overdraft or other
shortfall created by that item, transaction or instruction, (b) all overdraft
fees and charges we may impose from time to time, (c) interest on the
amount of the overdraft or other shortfall at the rate we may impose
from time to time for the day the overdraft or other shortfall was created
and for each following day until the overdraft or other shortfall has been
paid, and (d) all costs and expenses (including, without limitation,
attorneys fees) we incur in collecting the overdraft or other shortfall, or
any fees, charges or interest relating to it, from you.
10. Security Procedures and Authorization Codes. Some of the
services require you to implement appropriate security procedures that
are outlined in the terms and conditions for those services. The security
procedures are designed to verify the authenticity of instructions that we
receive (including, at our option, confirmation of service profiles by your
authorized signers) and to control access to information and services.
They are not designed to detect errors in the content or transmission of
instructions or information. We may rely on the security procedures to
control access to information and services and to determine whether
any instructions we receive are authentic. You will be bound by all
instructions issued in your name and accepted by us in compliance with
the applicable security procedures, whether or not you or one of your
authorized users actually gave us those instructions. The security
procedures may require the use of PINS, user ID numbers, passwords,
test keys, algorithms or other codes, all of which are referred to as
"authorization codes." In some cases, we will provide all of the
authorization codes (which, for some services, may be the same for
multiple users). In these cases, we will either give the authorization
codes directly to your users (or, if we have elected to permit your
authorized signers to confirm service profiles by using authorization
codes, then in that case directly to your authorized signers) or we will
give them to the person within your company that you have designated
as your "contact" or security administrator (as defined below). If we
elect to give the authorization codes to your contact, that person is then
responsible for distributing the authorization codes to your users. In
other cases, you will be required to appoint a person within your
company who has the authority to determine who is permitted to use
certain services on your behalf. That individual is referred to as your
"security administrator." Some services give you the option of
designating more than one contact and/or security administrator. In
these cases, we may give all of the authorization codes to a single
contact or security administrator or (at our option) we may give a portion
of the authorization codes to a particular contact or security
administrator with the rest of the authorization codes going to another
contact or security administrator. If we do not give all of the
authorization codes to a single security administrator, your security
administrator must obtain the other portions of the authorization codes
from the other contact or security administrator who received them.
After obtaining the other portions of the authorization codes, your
security administrator is responsible for creating and providing
authorization codes for and establishing limits on each user's authority
to initiate transactions, access information and use services on your
TREASURY MANAGEMENT
TERMS AND CONDITIONS
behalf. You are completely responsible for controlling access to and
maintaining the confidentiality of the security procedures and
authorization codes and you must promptly report any breach of that
confidentiality to us. You are also completely responsible for the actions
of your contacts, your security administrators, any users to whom we or
your contacts or security administrators have provided authorization
codes and any other person who has obtained access to your
authorization codes. In some cases, a third party vendor may provide
the authorization codes on our behalf. We may send the reference
materials and any notices regarding a service to your contact(s) for that
service as reflected in your service profiles for that service as they are in
effect at the relevant time.
11. Authorized Signers. As indicated above, your authorized
signers are those individuals identified in any resolution, certificate,
delegation of authority or other document that you have given us as
having authority to enter into or amend the agreement on your behalf.
We may act upon any oral or written instructions we receive that we
believe in good faith to have been given by one of your authorized
signers (including instructions sent by facsimile, e-mail or other
electronic method). In addition, if we have elected to permit your
authorized signers to confirm service profiles by using authorization
codes, any person giving us an appropriate authorization code will be
deemed to have authority to confirm service profiles, even if he or she is
not otherwise one of your authorized signers.
12. Authorized Persons. The individuals who have authority to
give us instructions, access information and use services on your behalf
are those that are reflected in your delegation of authority, if you have
executed one, or any other separate written resolution or other
document relating to the services that you have given us. These
individuals may be referred to as "authorized representatives,'
"authorized users," "authorized persons" or similar terms in these
general terms and conditions and/or the terms and conditions for
particular services. In addition, if you use a service that involves
authorization codes, any person giving us an appropriate authorization
code will be deemed to have authority to give us instructions, access
information and use services on your behalf, even if he or she is not
otherwise designated as having authority to do so. You may also
authorize third party processors and other agents to give us instructions,
access information and use services on your behalf. We may act upon
any oral or written instructions we receive that we believe in good faith
to have been given by an authorized person (including instructions sent
by facsimile or other electronic method). We are authorized to follow
the instructions of your contact, your security administrator or any
person designated as having authority to act on your behalf (or that
gives us or uses an appropriate authorization code) until we receive
written notice that his or her authority (or authorization code) has been
terminated and we have had a reasonable time to act upon that notice.
At our option, we may require written confirmation of instructions that
are given orally or by facsimile.
13. Our Online Services and Software Materials.
(a) Use of Online Services. We offer several online services
(including data transmission services) that allow you to electronically
access information concerning your accounts, give us instructions
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regarding certain transactions with respect to your accounts and use of
the services, and transmit and receive data files to or from us. We can
also use online services to electronically provide you reports,
confirmations, statements and other information regarding your
accounts and use of the services. The instructions that you can give us
through online services vary by service. These online services may
require you to comply with various security procedures, including that
you use authorization codes. You agree to provide us with all
Information we request to enable us to activate your ability to use online
services. Some of the online services have specific formatting and
other technical requirements, as we may specify from time to time. You
agree to comply with these requirements when using the online services
and to allow us to test and approve your setup for an online service or
data transmission service before you begin using it. Certain of the
online services may also require you to comply with certain online terms
and/or use software that we license or sublicense to you. Your use of
the online services and any software materials is subject to the online
terms, any accompanying license agreement and the other terms of the
agreement.
(b) Nonexclusive License. Your rights in the online services
and software materials are limited to a nonexclusive license to use them
solely in connection with your use of the services for your internal
business purposes. You may not transfer or assign any of your rights
with respect to the license, and the license will be automatically revoked
If the agreement is terminated generally or with respect to the particular
service to which the online services or software materials relate. If your
license is revoked, you must return the software materials and any
copies or extracts that you have made to us immediately. You may not
(I) sublicense, sell, lease, distribute or (except with respect to your
employees or agents) provide access to any of the online services or
software materials to any third party, (ii) use the online services or
software materials in a service bureau, time-sharing, outsourcing or
similar arrangement, (ill) use the online services or software materials in
any manner that is not expressly permitted by the agreement,
(iv) modify, decompile, reverse engineer, disassemble or create
derivative works from the online services or software materials or
(v) copy all or part of the online services or software materials, except
as necessary for reasonable back up purposes or (vi) take any actions
or engage in any conduct that violates our rights (or those of our vendor)
with respect to the online services or software materials.
(c) Proprietary Rights. Except as otherwise set forth in the
online terns, the software materials or the terms and conditions for the
relevant service, we or our vendor retain all ownership and other rights
in the online services and software materials and in any related trade
secrets, copyrights and other intellectual property rights. In addition,
you acknowledge that the online services and software materials
contain valuable, confidential, trade secret information that belongs to
us or to our vendor. You will not disclose or otherwise make that
information available to any person other than your employees or
agents that need to use the online services or software materials in
order for you to use the services, and as to agents, have agreed in
writing to comply with the restrictions on use in the agreement. You will
instruct those employees or agents to keep the online services and
software materials confidential by using the same care and discretion
that you use with respect to your own confidential property and trade
TREASURY MANAGEMENT
TERMS AND CONDITIONS
secrets. Your obligations of confidentiality regarding the online services
and software materials will continue after termination of the agreement
and your use of the services for so long as that information remains a
trade secret or is otherwise subject to the protection of applicable law.
(d) Accounts at other Institutions. Some of our online
services have the ability to access information concerning accounts at
other financial institutions. In order for you to take advantage of this
functionality, you must give written instructions to the other financial
institution(s) to make information regarding those accounts available to
us and the other financial institutions) must give us written instructions
to make that information available to you through one of our online
services. We are not responsible for any inaccuracies in any
information provided by the other financial institution(s) or for any errors
or delays in any service caused by the other financial institution(s).
(e) No Guarantees or Responsibility. We make no
guarantees and have no responsibility with respect to (I) the operation of
any online service or software materials being uninterrupted, error free
or free from program limitations, (ii) defects in the online services or
software materials or any information provided through them, (ill) the
online services, the servers that make them available or the software
materials being free of viruses, disabling devices or other harmful
components, (iv) any information or reports that are transmitted over the
Internet, a wireless network, or sent by e-mail or other electronic method
remaining confidential or being accurate, or (v) any person gaining
unauthorized access to the online services, unless we failed to meet our
standard of care in giving that person an authorization code. If an online
service is not available or you are unable to access an online service,
you agree to use another method (such as written instructions) to
access your accounts or use the services.
14. Your Eouipment. Communications Capabilities and Software.
Several of the services require you to have certain equipment,
communications capabilities or software. You are responsible for
providing and maintaining (at your cost and expense) any equipment,
communications capabilities or software (other than software we provide
in connection with certain of our services) necessary for any of the
services that you use. It is your responsibility to insure that the
equipment, communications capabilities and software you select are
compatible with those that we use from time to time to provide the
services. We have no responsibility if any equipment, communications
capabilities or software that you use is defective or is not compatible
with ours, even if you have told us what equipment, communications
capabilities and software you intend to use or we have previously
approved its use.
15. Fraud Detection/Deterrence. Payment system fraud has
increased dramatically in recent years due to a number of factors. From
time to time we may make certain products and services that are
designed to detect and/or deter payment system fraud available to you.
While no product or service will be completely effective, we believe that
the products and services we offer will reduce the likelihood of certain
types of fraudulent transactions occurring in your accounts. As a result,
you agree that if you fail to implement any of these products or services
that we specifically offer to you with written notice, (a) you will be
precluded from asserting any claims against us with respect to any
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unauthorized, altered, counterfeit or other fraudulent transactions
occurring in your accounts that the product or service was designed to
detect or deter, (b) we will not be required to recredit your accounts or
otherwise have any liability for such transactions, and (c) you will
indemnify us for any loss or expense (including, without limitation,
reasonable attorneys' fees to the extent permitted by law) relating in any
way to such transactions, so long as we otherwise satisfied our duty of
care with respect to the other aspects of such transactions.
16. Fees and Expenses. You will pay us all fees that we disclose
to you for any of the services that you use. We may change or add new
fees for services from time to time upon prior written notice. If you
continue to use the service after the change becomes effective, you
agree to pay the new fees. In addition, you agree to pay any
reasonable out-of-pocket expenses we incur in performing the services
for you, including any communication, access, transmission and data
processing charges. Your accounts are also subject to the fees set forth
in the schedule of fees described in the rules and regulations. We may
change those fees by following the procedures set forth in the rules and
regulations. We may collect any fees or expenses by debiting your
accounts with us, offsetting those amounts against any earnings credits
relating to any analysis of your deposit accounts, or other applicable
method. We reserve the right to charge interest on any amounts that
are not paid within 30 calendar days of the due date. We will apply all
debits, credits and payments first to unpaid interest and then to fees and
expenses in the order in which they were due. If you fail to pay any
amount that you owe us under this agreement, we have the option of
canceling or suspending the performance of any further services for
you.
17. Term and Termination. Unless a shorter period of notice is
provided in the terms and conditions for the relevant service or we
mutually agree to a shorter period of notice, the agreement will continue
in effect until either you or we give 30 calendar days' prior written notice
of termination to the other party. Any such termination may be for the
entire agreement or for a particular service. In addition, we may
terminate this agreement or any service immediately and without giving
you prior written notice if (a) you violate this agreement, (b) any
representation or warranty you make to us fails to be true and correct in
any material respect, (c) we believe in good faith that there has been a
material adverse change in your financial or business condition, (d) you
make a general assignment for the benefit of creditors or become a
debtor in any bankruptcy or other insolvency or liquidation proceeding,
(e) we determine that changes in applicable laws, regulations, clearing
house rules or funds transfer system rules have made it impracticable
for us to perform under the agreement generally or with respect to a
particular service or (f) any of the circumstances described in clause (g)
or (h) of Section 8 of these general terms and conditions occurs. Even
though the agreement may be terminated entirely or with respect to a
particular service, all provisions relating to your indemnification
obligations, your obligations concerning confidential information and
limitations on our liability will continue to apply and will survive
termination. You also continue to be liable for any obligations that you
incurred prior to the termination of the agreement or any service, those
that you incur in the process of terminating the agreement or a particular
service and for any outstanding transactions.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
18. Your Representations and Warranties. Each time you use a
service you represent and warrant to us that (a) you are duly organized,
validly existing and in good standing under the laws of your state of
organization, (b) you have full power and authority to cant' on your
business and to enter into and perform your obligations under the
agreement, (c) you have taken all actions necessary to enter into and
perform your obligations under the agreement, (d) all resolutions or
other authorizations you have given to us are true, accurate and
complete in all material respects, (e) all assumed or fictitious names that
you use have been duly registered or filed with the applicable
governmental authorities, (f) you have obtained all necessary consents
or authorizations for you to enter into the agreement, (g) this agreement
is legally binding on you, (h) each person whose name is written or
printed on your delegation of authority, if you have executed one, or any
resolution or other separate written authorization concerning the
agreement or any service has complete authority to bind you in all
transactions relating to the agreement or any service, (1) you are neither
bankrupt nor insolvent nor have you made an assignment for the benefit
of creditors or sought the protection of any bankruptcy, insolvency or
liquidation proceeding, nor do you have the present intention to do so,
Q) you have not commenced any dissolution proceedings and no
governmental authority having jurisdiction over you has served a notice
of its intent to suspend or revoke your operations, and (k) the agreement
does not violate any law, regulation or agreement to which you are a
party. You also make the representations and warranties that are set
forth in the terms and conditions for a service each time you use that
service. You agree to immediately notify us if any representation or
warranty you make to us is no longer true.
19. Liability and Indemnification.
(a) Your Duty of Care. You must exercise good faith and
ordinary care in performing your obligations under the agreement. In
addition, you must promptly examine each written or electronic
confirmation, report, periodic statement, notice or other document
related to any services and notify us of any error, omission or other
discrepancy reflected in such confirmation, report, periodic statement,
notice or document within 30 days (or such shorter period of time
specified in the terms and conditions for the relevant service) after we
send or make it available to you.
(b) Our Duty of Care. In performing the services for you, you
agree that we are not acting as a fiduciary for you or for your benefit and
that our responsibility is limited to acting in good faith and exercising
ordinary care. In that regard, the services have several unique
characteristics that relate to our duty of care. For example, most of the
services involve large volumes of items or transactions that are processed
in a highly automated environment. The procedures set forth in the terms
and conditions and/or the reference materials for each service have been
designed in light of those characteristics to maximize your ability to use
that service in an efficient manner while minimizing your cost and
inconvenience. You agree that the procedures for each service are
commercially reasonable and that we will be deemed to have exercised
ordinary care if we substantially comply with the procedures. You also
agree that clerical errors, mistakes in judgment, and occasional or
unintentional deviations by us from the procedures will not be deemed to
constitute a failure on our part to exercise ordinary care. You also agree
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sUARUST
that we will not be deemed to have failed to exercise ordinary care with
respect to any error, delay or failure to perform that is caused by (I) fire,
natural disaster, strike, civil unrest, terrorism, failure of computer or
communications facilities, (ii) the acts or omissions of any third party
(including any Federal Reserve Bank, clearing house or funds transfer
system) or (iii) any circumstance beyond our reasonable control or for
which we do not have responsibility under the agreement.
(c) Conditions on Our Liability. We will have no liability to
you unless we fail to satisfy our duty of care as described above. If we
fail to satisfy our duty of care, you agree to the maximum extent
permitted by law that we will have no liability for any losses or damages
resulting from that failure unless (I) you have complied with the terms of
the agreement and satisfied your duty of care as described above
(including your duty to discover and report any error, omission or other
discrepancy reflected in any confirmation, report, periodic statement,
notice or document to us within the applicable period), (Ii) you take all
reasonable actions to limit your losses or damage, (M) promptly give us
written proof of your losses or damages and cooperate with us in
investigating the error, omission or other discrepancy and your tosses or
damages, and (iv) you bring any claim, action or proceeding against us
with respect to any error, omission or discrepancy within one year after
it occurred (in that regard, if the error, omission or discrepancy is a
repetitive one, all such errors, omissions or discrepancies will be
deemed to have occurred on the date of the first such error, omission or
discrepancy).
(d) Limits on Our Liability. If we fail to satisfy our duty of
care and you have satisfied the conditions to our liability, both as
described above, then you agree to the maximum extent permitted by
law that our liability to you will be limited to your monetary losses or
damages that are a direct result of that failure, up to the lesser of () the
amount of the transaction to which the error, omission or other
discrepancy relates or (ii) the amount of the fees that you have paid us
for the service in question for the six months preceding the month in
which the failure occurred. You also agree to the maximum extent
permitted by law that we will never be liable to you for any indirect,
consequential, special, punitive or exemplary losses or damages
(including, without limitation, lost profits, loss of data, business
interruption or delay, time, savings, property or goodwill), without regard
to the form of your claim or action or whether your claim is in contract,
tort or otherwise, and even if we knew such losses or damages were
possible or likely. To the extent we are required by applicable law to
pay you interest on any amount for which we are liable under this
section, that interest will be determined by using the 'federal funds rate"
we paid at the close of business on each day during the period
beginning on the day such failure occurred until we have paid you the
full amount of our liability. If we reimburse you for any losses or
damages, you agree to transfer all of your rights relating to the
transactions in question to us and to assist us in any efforts or legal
actions that we may take to recover those amounts from any third party.
(e) Disclaimer of Warranties. To the maximum extent
permitted by law, we disclaim all representations and warranties of
any I Ind, whether express, implied or statutory, with respect to the
services, the software materials, the online services, and any
equipment or software that you use in connection with the services,
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Including the Implied warranties of merchantability, fitness for a
particular purpose, title and non -Infringement.
(Q Your Indemnification Obligations. To the extent
permitted by law and unless finally determined by a court or arbitrator
having proper jurisdiction to have been caused primarily by our
negligence or intentional misconduct, you agree to defend, indemnify,
protect and hold us, our affiliates and our respective officers, directors,
employees, attorneys, agents and representatives harmless from and
against any and all liabilities, claims, damages, losses, demands, fines
(such as fines imposed by any Federal Reserve Bank, clearing house or
funds transfer system), judgments, disputes, costs, charges and
expenses (including litigation expenses, other costs of investigation or
defense and reasonable attomeys' fees) which relate in any way to the
services, the software materials or the agreement (such as those
caused by: (i) your failure to comply in a significant manner with any of
the provisions of the agreement, (ii) the failure of any of the
representations or warranties that you make to us to be true and correct
in any material respects at any time or (III) any instructions you give us).
Any obligations for you to indemnify, defend, and hold us harmless in
these terms and conditions are limited to the extent provided under
Section 768.28, Florida Statutes. This provision shall not be construed
as waiving any defense, immunity from or limitation of liability which you
might be entitled to, including but not limited to sovereign immunity.
20. Arbitration. Either you or we have the right to require that
any dispute, controversy or claim arising out of or relating to the
agreement or any breach, termination or invalidity thereof,
including any dispute conceming the scope of this arbitration
clause, be settled by binding arbitration in accordance with Title 9
of the United States Code and the Commercial Arbitration Rules of
the American Arbitration Association (the `Rules"). Any
arbitration proceeding will be conducted before a panel of three
neutral arbitrators, or one neutral arbitrator If the amount in
dispute does not exceed $500,000, all of whom must be attorneys
engaged in the practice of banking law for ten years or more. You
and we will each select one arbitrator, or if the arbitration Is
conducted by only one arbitrator you and we will jointly select the
arbitrator. The arbitrator that you select and the arbitrator that we
select will, within 10 days of their appointment, select a third,
neutral arbitrator. In the event that they are unable to do so, you,
we or either of our attorneys may request the American Arbitration
Association to appoint the third neutral arbitrator. Prior to the
commencement of hearings, each of the arbitrators appointed
must take an oath of impardality. Judgment upon any award
rendered by the arbitrators may be entered and enforced by any
court of competent jurisdiction. The place of the arbitration will be
In Florida. In rendering any award the arbitrators Will determine
the rights and obligations of the parties In accordance with the
laws of the state governing this agreement. The arbitrators are not
empowered to award damages in excess of the amounts expressly
provided for by the agreement. All statutes of limitation that would
otherwise apply to a judicial action will apply to any arbitration or
reference proceeding under the agreement. The arbitrators must
award to the prevailing party, if any, as determined by the
arbitrators, all of Its costs and fees. "Costs and fees" means all
reasonable pre -award expenses of the arbitration, Including the
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arbitrator's fee, travel expenses, out-of-pocket expenses such as
copying and telephone, court costs, witness fees and attorneys'
fees. Neither you nor we may disclose the existence, content or
result of any arbitration under the agreement without the prior
written consent of the other.
21. Jury Trial Waiver. You and we both knowingly,
voluntarily, intentionally and irrevocably waive any right to a trial
by jury with respect to any litigation based on, arising out of or
relating to the agreement, the services, or any other document,
Instrument, transaction, course of conduct, course of dealing,
statements (whether verbal or written) or your or our actions. This
provision is a material Inducement for us to enter Into the
agreement. You also acknowledge that none of our
representatives or agents has represented that we would not seek
to enforce this jury trial waiver in the event of any litigation.
22. Miscellaneous.
(a) Notices. Any notices under the agreement may be given
by mail, personal delivery, fax, e-mail or other electronic means. We
may use any address (including e-mail or other electronic addresses) for
you shown in our records that we believe in good faith is valid. Any
notice we send you will be effective when sent or we otherwise make
the notice available to you through an online service. You must send
any notices to us to your treasury management services sales officer.
Any notice you send us is effective when we actually receive it.
(b) Severabili . Any provision of the agreement that is
invalid or unenforceable in any jurisdiction will, as to such jurisdiction
and to the extent of such invalidity or unenforceability, be deemed
replaced with a valid and enforceable provision as similar as possible to
the one replaced and all of the remaining provisions of the agreement
will remain in full force and effect.
(c) Binding AgreementlBenefit. The agreement binds and
benefits both you and us and our respective legal representatives,
successors and assigns. The agreement is not for the benefit of any
third party, and no third party has any right against either you or us
under the agreement.
(d) Confidentiality of the Agreement. You acknowledge that
the agreement contains valuable, confidential, trade secret information
that belongs to us. You will not disclose or otherwise make that
information available to any person other than your employees or
agents that need it in order for you to use the services and, as to
agents, have agreed in writing to comply with the restrictions on use in
the agreement. You will instruct those employees or agents to keep the
agreement confidential by using the same care and discretion that you
use with respect to your own confidential property and trade secrets.
Your obligations of confidentiality regarding the agreement will continue
after termination of the agreement and your use of the services for so
long as that information remains a trade secret or is otherwise subject to
the protection of applicable law.
(e) Entire Agreement. The agreement is the complete and
exclusive statement of the agreement between you and us with respect
to the services. The agreement completely replaces any other ones you
TREASURY MANAGEMENT
TERMS AND CONDITIONS
have given us in the past with respect to the services, except that any
instructions you have given us under any such past agreements
continue to be effective until replaced or deleted in accordance with the
agreement (including, without limitation, through a service profile or an
implementationtsetup form).
(f) Headings and Certain References. The headings used in
the agreement are for reference purposes only and should not be
considered when interpreting the agreement. Whenever the term
"including" is used in the agreement, it means "induding, without
limitation". Whenever the term "days" is used in the agreement, it is a
reference to calendar days unless that reference specifies it is business
days or banking days.
(g) Assignment. You may not assign the agreement or any
of your rights or duties under it to any thins party without our prior written
consent. We may assign the agreement to any of our affiliates or
successors or to any other person or entity in connection with a sale of
assets without obtaining your consent. In addition, we may delegate our
duties under the agreement to third party vendors without giving you
notice of, or obtaining your consent to, such delegation.
(h) Applicable Law and Jurisdiction. The agreement is
governed by and should be interpreted in accordance with the
applicable federal laws and the internal laws of the state of Florida. You
consent to the exclusive jurisdiction and venue of any court located in
that state.
(i) Attomeys Fees. The prevailing party in any proceeding
arising out of or relating to the agreement is entitled to recover its
attorney's fees and costs, in addition to any other remedy it may be
entitled to under applicable law.
0) Telephonic Communications. You consent to the
recording of telephone conversations of your personnel in connection
with the agreement and assume responsibility for obtaining the consent
of, and giving notice to, such personnel. The decision to record any
telephone conversation is solely at our discretion and we will not have
any liability for failing to do so in any particular circumstance.
(k) Remedies. The rights, powers, remedies and privileges
provided for you in the agreement are your sole and exclusive rights,
powers, remedies and privileges with respect to the services and any
failure by us to perform the services in accordance with the terms of the
agreement. The rights, powers, remedies and privileges provided for us
in the agreement are in addition to any rights, powers, remedies and
privileges with respect to the services or any failure by you to comply
with the terms of the agreement that we have under applicable law or
otherwise, and we may exercise any or all of those rights, powers,
remedies and privileges in any order.
(1) No Waiver of Rights. A failure or delay by us in
exercising any right, power or privilege in respect of the agreement will
not be presumed to operate as a waiver of that or any other right, power
or privilege, and a single or partial exercise by us of any right, power or
privilege will not be presumed to preclude any subsequent or further
exercise by us of that or any other right, power or privilege.
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(m) No Strict Construction. In the event an ambiguity or
question of intent or interpretation of the agreement arises, the agreement
should be construed as if you and we both drafted the agreement, and no
presumption or burden of proof favoring or disfavoring any party by virtue
of the authorship of any provisions of the agreement will apply.
(n) Financial Accommodation. You acknowledge that the
agreement is an agreement to provide a "financial accommodation" as
that term is defined in the federal bankruptcy laws and, as a result, that
neither you nor any bankruptcy trustee (including you when acting as a
debtor -in -possession) have the ability to assume or reject the
agreement as an executory contract.
(o) Financial Statements. You agree to provide us with
financial statements and other financial information that we may
reasonably request from time to time.
(p) Our RcoWs. You agree that our records regarding the
features and accounts that you have asked us to include in our
implementation of your setup for any service (including the
implementation/setup forms for that service) will be deemed correct and,
absent manifest error, will control in the event of any dispute regarding
your setup for that service. This provision applies even if we have not
given you a copy of those records or you have not signed any
documents included in those records.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
of your setup for the services, then (a) you represent and warrant to us
that the other person or entity has given you authority to access its
accounts through use of any service to the same extent as if you owned
them, (b) each reference to "you" or "your" in the agreement will be
deemed to be a collective reference to you and each other person or
entity whose accounts are included in our implementation of your setup
for the services, (c) all of the provisions set forth in the agreement will
apply to the accounts as if you owned them, (d) you are deemed to be
using a service with respect to any of the accounts included in our
implementation of your setup for that service, (e) each person who is
authorized to act on your behalf with respect to a service is also
authorized to act on your behalf to the same extent with respect to the
accounts of each other person or entity whose accounts are included in
our implementation of your setup for that service, and (f) you and each
other person or entity whose accounts are Included in our
implementation of your setup for the services are jointly and severally
liable for all indemnification, confidentiality and other obligations to us
under the agreement. We may require written confirmation from the
other person or entity that it has authorized you to include its accounts
in our implementation of your setup for the services and you agree to
notify us immediately if that authority is revoked or changed. For
purposes of this provision, if an account that belongs to another person
or entity is included in our implementation of your setup of a service, you
will be deemed to have asked us to include that account in our
implementation of your setup of that service even though an exhibit,
(q) Authority for Other Entities. If you ask us to include service profile, or other form or document (whether now or hereafter in
accounts that belong to another person or entity in our implementation effect) reflects that other person or entity as the client or customer.
Account Reconciliation Service
1. Description of the ARP Service. The SunTrust Account
Reconciliation or "ARP" service allows you to facilitate the reconciliation
of your accounts by exchanging information with us regarding checks
that you have issued against your accounts and/or checks deposited
into your accounts. Details regarding the functionality of the ARP
service and certain formatting and other technical requirements that you
must follow when using the ARP service are provided in the ARP
reference materials as we update them from time to time.
in connection with the ARP service will be transmitted electronically in
the format we specify. Check, deposit and other information you send
us must be received by us no later than the cutoff time for such
information reflected in the ARP reference materials. You may select a
daily, monthly, weekly or bi-weekly statement cycle for each account
included in your setup for the ARP service. If you fail to designate a
statement cutoff on our ARP calendar, the statement cycle will be
monthly with a cutoff at the end of the calendar month.
2. Operation of the Service. You must tell us (in a form that 3. Suspension of Service. You agree that you vn11 be in
is acceptable to us) which ARP service you desire for each account that material breach of these ARP terms and conditions if you repeatedly fail
is included in your setup for the ARP service. Except as otherwise to meet any of the deadlines described above. In addition to any other
provided in these ARP terms and conditions or the ARP reference rights we may have under the agreement or applicable law, we may
materials, all check, deposit or other information exchanged between us immediately suspend your use of the ARP service.
Accounts Receivable Conversion Service
1. Description of the Accounts Receivable Conversion Service.
Accounts Receivable Conversion or "ARC" is a standard National
Automated Clearing House Association or "NACHA" entry class that
provides clients using our Scannable Lockbox, or "SLB," and ACH
origination services the ability to convert eligible checks deposited
through their lockbox service into automated clearing house entries.
The ARC service allows eligible checks received via the U.S. mail (or
equivalent service, such as an overnight delivery service) for the
payment of goods and services to be converted to single-entry debits
using the ARC entry class code. We will act as your agent or for
purposes of the NACHA rules as your service provider to evaluate
lockbox items for conversion to ARC entries or to process the item
through lockbox check processing. Each lockbox item selected for
conversion will be the source document for the related ARC entry.
Details regarding the ARC service functionality and certain other
technical requirements that you must follow when using the ARC service
are provided in our SLB service reference materials and our ACH
origination service reference materials, as we update either of them
from time to time.
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2. Function of ARC Service. We will allow you to use the ARC
service only once you have been set up for our SLB service and have
been qualified and set up for our ACH origination service. You may use
the ARC service with respect to the account(s) and lockbox(es) that are
identified on your ARC service profiles, as they are in effect the relevant
time, if those account(s) are designated account(s) for the ACH
origination service and we have agreed to include those account(s) and
lockbox(es) in your set up for the ARC service. In that regard, if a
service profile for SLB service includes information indicating your
election to use ARC service, that service profile constitutes an ARC
service profile as well. We will act as the originating depository financial
institution or "ODFI" with respect to the ARC entries created as part of
this service. You will be the "originator" for each of those ARC entries.
By confirming an ARC service profile, you agree to be bound by and
comply with the NACHA Operating Rules and Operating Guidelines.
3. Our Obligations. We, acting as your agent, will originate ARC
entries, and the amount, the routing number, the account number, and
the check serial number for each such ARC entry will be in accordance
with the source document. We will retain a reproducible, legible image
of the front and back each source document for two years from the
Settlement Date of the ARC entry and we will provide commercially
reasonable secure storage of the source document image and all
related banking information. The original source document will be
destroyed by us after it has been converted to an ARC entry. The
source document (or any equivalent document) for the ARC entry will
not be presented by us for payment unless the ARC entry is returned by
the receiving depository financial institution or "RDFI". We will provide
any necessary file totals to authorize release of your ARC entries in lieu
of PAL Totals as described in the ACH origination service terms and
conditions.
4. Your Representations and Warranties. You will provide a dear
and conspicuous notice to the receiver of ARC entries, prior to the
receipt of each source document that will be used as the basis for the
origination of an ARC entry, that receipt of the receiver's check will be
deemed to be the receiver's authorization for a debit entry to the
receiver's account in accordance with the terms of the source
document. The notice you provide will incorporate the Federal Reserve
System Regulation E safe harbor language or substantially similar
language such as:
"When you provide a check as payment, you authorize us either to use
information from your check to make a one-time electronic fund transfer
from your account or to process the payment as a check transaction."
ACH Fraud Control Service
1. Description of the AFC Service. The SunTrust ACH Fraud
Control or "AFC" service allows you to block the posting of incoming
automated clearing house, or "ACH," debit and/or credit entries against
your accounts. It also allows you to create exceptions to a block that
will allow selected incoming entries to post.
2. Selection of AFC Service Options. For each account included
in your AFC service setup you may select various service options. Your
selection(s) for each account are reflected in your AFC service profiles
TREASURY MANAGEMENT
TERMS AND CONDITIONS
You acknowledge that utilization of the ARC service will result in
different obligations and liabilities for you with regard to electronic funds
transfer legal and regulatory environment as compared to the legal and
regulatory environment for accounts receivable paid by check.
5. ARC Return Items. Any ARC entry returned for insufficient
funds will automatically be represented one additional time. Any ARC
entry returned for any other reason will be prepared as a source
document or its equivalent and processed as an item through lckbox
check processing. If the item is returned, then the item will be sent back
to the client in their daily remittance package and their account will be
debited for the funds.
6. Data Transmission. All required data transmissions between
you and us will utilize the appropriate online service made available by
US.
7. Termination. The ARC service may be terminated by prior
written notice by either you or us or by termination of the SLB service or
the ACH origination service.
8. ACH Origination Service and Scannable Lockbox Service.
These ARC service terms and conditions are expressly made a part of
the terms and conditions of the ACH origination service terms and
conditions and SLB service terms and conditions. Terms defined in the
terms and conditions for the ACH origination service have the same
meanings when used in these ARC service terms and conditions, and
terms defined in the terms and conditions for the SLB service have the
same meanings when used in these ARC service terms and conditions.
If there is any inconsistency on a particular issue between these ARC
service terms and conditions and the terms and conditions of the ACH
origination service or the SLB service, these ARC service terms and
conditions will control.
as they are in effect at the relevant time. The options that you may
select are as follows:
(a) Full Debit/Credit Block Option. If you would like to block
the posting of all incoming ACH debit and/or credit entries to an account
(without use of the OAC service option described below), you must
select the full debit/credit block option for that account. In that regard,
you have three options for each account: (i) blocking only incoming
ACH debit entries; (ii) blocking only incoming ACH credit entries; or
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(III) blocking both incoming ACH debit and credit entries. You must
make a separate election for each account that is included in your setup
for this service with a full debit/credit block option.
(b) Standing Order Option. If you would like to generally
block all incoming ACH debit entries from posting to an account, but
would like to set up one or more authorizations to allow certain incoming
ACH debit entries to post to that account on a repetitive or "standing"
basis, then you may select standing order option for that account and
provide us the required information for the standing entries.
(c) Single Entry Option. If you would like to generally block
all incoming ACH debit entries from posting to an account, but would
like to set up one or more authorizations to allow particular ACH debit
entries to post to that account on a one-time or "single entry" basis, then
you may select the single entry option for that account and provide us
the required information for the single entry entries. Once we have
posted an entry to which a single entry authorization applies, that
authorization expires and we will block any future instance of that entry
unless you establish an authorization to allow that future instance.
(d) Online AQH Control Service Option. If you would like to
generally block all incoming ACH debit entries and/or credit entries from
posting to an account, but would like to be able to have online access so
that you can perform certain functions, including without limitation, (i)
setting up one or more authorizations to allow particular ACH debit
entries and credit entries to post to that account (either on a standing
basis or single entry basis) and change or delete any authorizations
included in the setup of your AFC service, and (ii) reviewing each ACH
entry received for posting to your account that has been initially blocked
from posting and making a decision to authorize that entry to post to
your account or to return that entry, then you may elect to use our
Online ACH Control, or "OAC" service, for AFC service, the "OAC
service option," for that account. You may not select the OAC service
option for an account if you currently have in place the full debit/credit
block option described above for that account.
3. OAC Service Option Functionality.
(a) Accepting or Declining a Rejected Entry.
(i) If an ACH entry is received for posting to an
account that you have included in your setup of the OAC service option,
as reflected in your AFC service profiles as they are in effect at the
relevant time, and that entry is the type of entry, either debit or credit,
that you have elected to block for that account, as reflected in our
records at the relevant time, and is not allowed to post under an
authorization you have in effect for that account at that time (whether
the authorization was set up "manually" by confirming a service profile
for the standing order or single entry option or was set up on line
through the OAC service option), that entry will initially reject, each a
"rejected entry." Each rejected entry will be suspended for a period of
time for you to have an opportunity to review and make a decision to
return that rejected entry to the originator or to allow that rejected entry
to post to your account. Any ACH entry received for posting to an
account included in your setup of the OAC service option that is allowed
under an authorization you have set up and that is in effect for that
TREASURY MANAGEMENT
TERMS AND CONDITIONS
account (or is of a type of entry, debit or credit, that you have not
elected to block) will post to your account in accordance with our normal
processing procedures. In determining whether an ACH entry is
allowed under an authorization that is in effect, (as we do for an
authorization set up under a standing order option or single entry option)
we will match the company id and dollar amount of that entry against the
company ids and dollar amounts set up in, and authorized by, your
authorizations and determine if posting that entry is within the number of
times an entry is permitted to post to your account under the applicable
authorization.
(H) The users you have authorized to use the OAC
service option for the account to which a rejected entry was to post will,
through the OAC service option, be able to view certain details for that
rejected entry and either authorize that rejected entry to post to that
account or return that rejected entry to the originator. A rejected entry
will remain in the list of rejected entries available in the OAC service
option for authorized users to review and make a decision to post to
your account or return that rejected entry, until the earlier of the decision
deadline set forth in the OAC service option reference materials (as we
may update them from time to time) or if a decision on that rejected
entry has been submitted (or an authorization for that rejected entry has
been created), the start of our processing for the next ACH processing
window following the submission of that decision or creation of that
authorization. You can also elect to have us send to one or more users
you set up in the OAC service an email to alert those users when an
ACH entry received for posting to an account has been rejected
Whether or not we fail to send you or you otherwise do not receive an
email notice of a rejected entry, you are responsible for accessing the
OAC service to review the list of rejected entries in the OAC service
option.
(III) To allow a rejected entry to post to your account,
one of your users (more than one may be required if you are using the
dual verification feature) authorized to use the OAC service option for
that account to which the rejected entry was to post must either submit
through the OAC service option your decision to accept that rejected
entry and allow it to post or you must set up an authorization for that
entry by the decision deadline. We will return that rejected entry to the
originator, if the election to refuse that entry is made through the OAC
service option by your authorized users) or you do not take the
necessary action to authorize the rejected entry to post to your account
by the payment decision deadline. You are responsible for having up-
to-date and accurate authorizations in effect for all ACH entries you wish
to have post to the accounts you have set up in the OAC service option,
in case the OAC system is unavailable and we are unable to provide
notice of a rejected entry or accommodate the submission of decisions
in writing and process those decisions by the decision deadline.
(b) Entry Authorizations. The users you have
authorized for an account included in your setup of the OAC service
option may use the OAC service option to create authorizations that
allow ACH debit or credit entries to post to that account and modify or
delete any authorizations included in your setup for the AFC service for
that account (more than one may be required if you are using the dual
verification feature). You may set up an authorization through the OAC
service option as a single entry authorization or a standing order
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authorization by designating the number of times an ACH entry is
permitted to post to your account under that authorization. If you do not
designate for an authorization the number of instances an ACH entry is
permitted to post to your account under that authorization, you are
authorizing an unlimited number of ACH entries permitted under that
authorization to post to your account. Unless you otherwise specify in
the setup of an authorization in the OAC service option, each
authorization will be set up in the OAC service option with an
immediately effective beginning date. If you are using the OAC service
option for an account, and we elect, in our discretion, to allow you to set
up manually an authorization through the standing order or single entry
option, those manually created authorizations will also be included in
your setup of the OAC service option. Each authorization manually
created under a standing order or single entry option you have in effect
for an account at the time you elect to use the OAC service option for
that account will also be included in your setup of the OAC service
option. Each authorization manually created under the standing order
option will be included in your setup of the OAC service option with an
unlimited number of instances, with an immediately effective beginning
date and without an expiration date. Each authorization manually
created under the single entry option will be included in your setup of
the OAC service option with an immediately effective beginning date
and without an expiration date.
(c) Dual Verification. If you use the dual verification
feature of the OAC service option, you can require that a separate user
authorized for an account included in your setup of the OAC service
option and with sufficient approval authority (as described in the
reference materials) approve any authorization maintenance request to
create, modify or delete an authorization for that account before that
authorization maintenance request takes effect and approve any
decision to accept or reject a rejected entry for that account before that
decision is submitted. One user authorized for that account and with
sufficient initiation authority must enter the authorization maintenance
request or the decision and another user authorized for that account and
with sufficient approval authority must approve the authorization
maintenance request or decision. The default setup is to require dual
verification for any authorization maintenance request or decision for a
rejected entry. One user is able to submit an authorization maintenance
request or a decision to allow a rejected entry to post to your account or
be returned, if you have elected not to use the dual verification
procedures at all or if you have entitled that user so the dual verification
procedures are not required for that user for decisions or authorization
maintenance requests under a certain dollar threshold. We recommend
that you use dual verification at all times, and you are responsible for
any ACH entry paid or returned in accordance with any decision or
authorization maintenance request submitted without use of dual
verification.
(d) Alerts. You may elect to have us send to certain
users included in your setup of the OAC service one or more of the
types of alerts available in the OAC service option, including alerts to
notify you when an ACH entry received for posting to an account
included in your setup of the OAC service option was rejected, to notify
you when an ACH entry posted to an account included in your setup of
the OAC service option because it matched an authorization, to notify
you when a decision for a rejected entry or a maintenance request to set
TREASURY MANAGEMENT
TERMS AND CONDITIONS
up, modify or delete an authorization needs to be approved, and to
notify you once a decision has been made or modified or an
authorization set up, modified or deleted. Your security administrator
will designate which users included in your setup for the OAC service
are to be sent an alert and which alerts each user is to be sent. Alerts
will be sent to each user at the email address designated in the OAC
setup for that user. You agree that we will not have any liability if we fail
to send to any one of those designated users or any one of those
designated users does not otherwise receive one or more alerts.
(e) Designation of Security Administratorfs). In order to
use the OAC service option (unless you are currently using the OAC
service for ACH origination service), you must initially designate one
person as one of your security administrators for the OAC service. That
initial security administrator will be identified on your service profiles for
the OAC service as in effect at the relevant time. That initial security
administrator and each other user who has been granted user
administration rights in the OAC service will be an "OAC security
administrator„ of yours for the OAC service. Each OAC security
administrator will have all of the rights and responsibilities described in
any terns and conditions for the OAC service, the reference materials
for the OAC service, or the general terms and conditions. Each OAC
security administrator included in your setup of the OAC service may be
able to administer the rights and permissions of any user included in
your setup of the OAC service, including themselves, and grant any of
those users, including themselves, access to any functionality available
to you in the OAC service. It is important for you to note that if you also
use the OAC service for your setup of the ACH origination service, any
OAC security administrator will be an OAC security administrator for the
OAC service option for the ACH origination service as well and can
entitle users for both the OAC service option for the AFC service and
the OAC service option for the ACH origination service. Any OAC
security administrator may terminate administration entitlements of any
other OAC security administrator directly through the OAC service,
including your initial OAC security administrator you designated on your
service profiles for the OAC service. We will provide the initial
authorization codes for use by your initial OAC security administrator
identified in your service profiles for the OAC service as they are in
effect at the relevant time. We will deliver these authorization codes
directly to that initial OAC security administrator.
(f) Authorization Codes and Security Procedures. The
security procedures for the OAC service include the requirement that
each of your users is required to enter that user's authorization codes to
log on to the OAC service. We may require that a user provide
additional information or use other additional security procedures to
authenticate that user. Your users should not give their authorization
codes to any other person or use them anywhere other than within the
OAC service. The user's initial authorization codes to access the OAC
service will be supplied by an OAC security administrator as described
in the general terms and conditions. You are solely responsible for
developing appropriate checks and balances to effectively control and
monitor the use of OAC service by all users, including but not limited to,
each of your OAC security administrators. You agree that these
security procedures are commercially reasonable.
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4. SunTrust Entries. If you use the AFC service with respect to
an account that you use to settle incoming ACH debit entries for certain
transactions with us, then you will need to authorize those entries on a
standing order basis in one or more AFC service profiles. Transactions
subject to this requirement may include cash concentration debits,
automated loan and lease payments, check order payments and
merchant card settlements. If you fail to authorize entries for these
transactions on a standing order basis, then those entries will be
blocked and you may incur additional fees, interest and charges.
5. Duration and Changing of Options. Once we have included
the information from the selections you have made for the AFC service
(as reflected in your service profiles in effect at the relevant time or in
our records of our implementation of your AFC service) in our
implementation of your setup for the AFC service, we will process
incoming ACH debit and/or credit entries in accordance with those
selections and any authorizations set up in and instructions given
through the OAC service option, until (a) your use of the AFC service or
the agreement is terminated or (b) you confirm an AFC service profile or
provide other instructions that add to, delete or modify your previous
selections and we have had a reasonable period to act on them before
we receive the relevant entries. In that regard, if you are using the OAC
service option for an account and delete all authorizations set up for that
account, we will continue to block all incoming ACH debit andlor credit
entries from posting to your account. Conversely, if you provide an
ACH Origination Service
1. Description of the ACH Origination Service. The SunTrust
Automated Clearing House Origination or "ACH" service allows you to
initiate debit and credit entries through the automated clearing house,
which is a funds transfer system for sending and settling for electronic
entries among participating financial institutions. Details regarding
ACH's functionality and certain formatting and other technical
requirements that you must follow when using the ACH origination
service are provided in the ACH origination reference materials as we
update them from time to time.
2. Functioning of the ACH Origination Service. Under the ACH
origination service, we act as the originating depository financial
institution or "ODFI" with respect to entries that you send us or that are
sent to us on your behalf. You will be the "originator" for each of those
entries. By confirming an ACH origination service profile, you agree to
comply with and be bound by the rules (as defined below).
3. Definitions. Unless otherwise defined in the general terms
and conditions or these ACH origination terms and conditions, terms
that are defined in the rules have the meanings given to those terms in
the rules. The following terms have the specified meanings for purpose
of these ACH origination terms and conditions:
(a) "ACH opgrator" means a Federal Reserve Bank or other
entity that provides clearing, delivery and settlement services for entries,
as further defined in the rules.
(b) "Authorized representative" means each person identified
in your ACH origination service profiles as they are in effect at the
relevant time, who is authorized (unless otherwise indicated in your
TREASURY MANAGEMENT
TERMS AND CONDITIONS
instruction to delete an account from your OAC service setup, we will
remove the account from the AFC service and allow all incoming ACH
debit and credit entries to post to that account. Additionally, if you are
not using the OAC service option and you confirm an AFC service
profile that deletes the last authorization set up under a standing order
option for an account (and there is not otherwise an authorization setup
under a single entry option in effect for that account), we will remove the
debit block from the account and allow all incoming ACH debit and
credit entries to post to that account. If you want to prevent incoming
ACH debit and/or credit entries from posting to that account, you will
need to confirm an AFC service profile that adds a full debit/credk block
option or the OAC service option for that account. Conversely, if you
are not using the OAC service option for the AFC service and you
confine an AFC service profile that deletes the last authorization set up
under a single entry option for an account (and there is not otherwise an
authorization set up under standing order option in effect for the that
account), we will convert your single entry option into a full debit/credit
block option for that account, blocking ACH debits from posting to that
account. If you want to permit incoming ACH debits to post to that
account, you will need to confirm an AFC service profile that deletes the
full debit/credit block option for that account or adds an authorization
under a standing order or single entry option to your AFC service setup
(or adds the OAC service option and establish authorizations through it).
service profiles) to give us instructions and to verify the total dollar
amount of entries in a file by submitting control totals (as defined below)
in writing, by a method acceptable to us, or through our phone
authorization Line, or "PAL" system, if you have elected to use our PAL
system.
(c) "Batch" means entries that have been grouped together
and that have the same effective entry date and entry class code and
that settle to the same designated account.
(d) "Business dew' means Monday through Friday, excluding
banking holidays.
(a) "Cut-off deadline" means the time on a business day by
which we must receive an entry for processing on that business day as
we update it from time to time.
(f) "Designated account" means the accounts) to be used
as a settlement source of debits or credits for entries that you have
designated in your ACH origination service profiles as they are in effect
at the relevant time.
(g) "Effective entry date" means the date specified in an
entry on which you instruct that the payment for that entry is to be made.
(h) "En ' means a request for a credit to or a debit from a
receiver's deposit account as further defined in the rules and includes all
data we receive from you regarding an entry.
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(I) "Entry class codes" means the codes that distinguish the
various types of entries, as further defined in the rules.
Q) "File" means a group of entries associated with a given
transmittal register and related control totals, as further defined in the
rules.
(k) "Final settlement" means the day an entry is posted to
the account of the RDFI the ACH operator.
(1) "Instructibif means a direction relating to an entry that
we receive from an authorized representative, including canceling an
entry.
(m) "NACHA" means the National Automated Clearing House
Association.
(n) "On -us entry" means an entry that credits or debits an
account maintained with us.
(o) "Receiver" means the person or entity that has
authorized you to initiate a debit or credit entry to the account of that
person or entity maintained at the RDFI as further defined in the rules.
(p) "RDFI" means the receiving depository financial
institution as further defined in the rules.
(q) "Rules" means the Operating Rules and Operating
Guidelines adopted by NACHA, as in effect at the relevant time.
(r) "Third -party sender" means a person that is not an
originator that has authorized an ODA (or another third -party sender) to
transmit, for the account of the third -party sender (or another third -party
sender), (i) a credit entry to the account of a receiver with an RDFI (or, if
the receiver is also the RDFI, to such receiver) in order to effect a
payment from the originator to the receiver, or (ii) a debit entry to the
receiver's transaction account or general ledger account with an RDFI
(or, if the receiver is also the RDFI, to such receiver) in order to effect a
payment from the receiver to the originator.
4. Transmitting Entries to Us. You may transmit entries and
instructions to us so long as you comply with the rules, the general
terms and conditions, these ACH origination terms and conditions, the
ACH origination reference materials and the security procedures. Any
entry you send must be transmitted to us through the online services
(which, for purposes of the ACH origination service, includes our online
cash manager service) identified in your ACH origination service profiles
as they are in effect at the relevant time and must comply with the
requirements of, and be identified by, the appropriate entry class code
and comply with all NACHA record format specifications. We may at
any time, immediately upon notice, prohibit you from originating certain
types of entries using the ACH origination service. Certain of our online
services may not be used to originate IAT entries or recurring TEL
entries, as we may determine from time to time. You must retain all data
on file that we would need to reprocess an entry for at least three
business days after midnight of the effective entry date of that entry and
agree to give us that data immediately upon our request. If you use a
third -party service provider, then each reference in these ACH
TREASURY MANAGEMENT
TERMS AND CONDITIONS
origination terns and conditions to "you," includes your third -party
service provider as appropriate, provided that we may elect not to
accept designations of a third party processor to deliver entries on your
behalf.
5. Obligations of a Third -Party Sender. The rules contain special
requirements and impose additional obligations on us when we act as
your ODFI with respect to entries you send us as a third -party sender.
As a result, we must obtain additional agreements and representations
from you with respect to those entries. If you send us any entries as a
third -party sender, you automatically make the additional agreements
and representations to us that are contemplated by the rules.
6. Our Processing of Entries. Except as provided later in this
section with respect to on -us entries, we will process entries and
instructions that we receive from you and then transmit those entries as
the ODA to an ACH operator. We will transmit the entries to the ACH
operator by its deposit deadline prior to the effective entry date shown in
the entries so long as the ACH operator is open for business on that day
and we receive the entries prior to (a) our cut-off deadline and (b) the
number of days required in the ACH origination reference materials to
meet the effective entry date shown in the entries. For entries that we
receive after those times, we will use reasonable efforts to transmit the
entries by the ACH operator's next deposit deadline on a business day
on which the ACH operator is open for business. If we receive an on -us
entry from you, we will credit or debit the receiver's account for the entry
amount on the effective entry date so long as we receive the entry prior
to (a) our cut-off deadline and (b) the number of days required in the
ACH origination reference materials to meet the effective entry date
shown in the entry. For an on -us entry that we receive after those times,
we will use reasonable efforts to credit or debit the receiver's account on
the business day following such effective entry date. If the effective
entry date shown in an entry that we receive from you is not a business
day, we will process that entry as if the effective entry date for that entry
was the next business day following the requested effective entry date.
7. Exposure Limits. We reserve the right to establish and
change (immediately and without giving you prior notice) aggregate and
individual dollar limits or "exposure limits" for your entries and files. We
may refuse to process entries or files that exceed these exposure limits.
We will tell you what your exposure limits are at any time upon request.
8. Suspension and Rejection of Entries. We may suspend
processing of and/or reject an entry, batch or file that (a) does not
comply with the rules, the general terms and conditions, these ACH
origination terms and conditions, the ACH origination reference
materials or the security procedures or (b) contains an effective entry
date more than 14 calendar days after the day we receive it. We may
suspend processing of and/or reject an on -us entry for any reason that
would allow that entry to be returned under the rules. We may also
suspend processing of and/or reject an entry, batch or file if you fail to
comply with any of your obligations under these ACH origination terms
and conditions, including your obligation to maintain sufficient available
balances in the designated account(s). We may suspend processing of
an entry, batch or file without giving you notice. If we reject a batch or
an entire file of entries, we will notify you no later than the business day
on which the batch or file would have been transmitted to the ACH
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operator for processing. If an individual entry is rejected, it will be
reported with your returns. If we reject an entry, batch or file, you may
be required to resend it.
9. Termination or Suspension of Service. In addition to, and
without in any way limiting, any other rights we have to terminate or
suspend your use of the ACH origination service under the agreement,
we may terminate or suspend your use of the ACH origination service
immediately and without giving you prior written notice if you have
breached the rules, any entry you transmit to us or any of your acts or
omissions might cause us to breach the rules or any representations or
warranties we make under the rules, or we believe termination or
suspension is necessary for us to comply with the rules.
10. Cancellation and Amendment of Entries. We have no
obligation to honor or process any request we receive from you to
cancel or amend an entry once we have received that entry. However,
as an accommodation to you, we will use good faith efforts to honor
your request to cancel (but not to amend) an entry if (a) the request
complies with the security procedures and (b) we receive your request
at a time and in a manner that gives us a reasonable opportunity to act
on it prior to transmitting the entry to the ACH operator or, in the case of
an on -us entry, prior to crediting or debiting the entry to the receiver's
account. We are not liable if we cannot honor your cancellation request.
You agree to reimburse us for any expenses we may incur in attempting
to honor your cancellation request. If you request a cancellation, we will
use a reversing entry in an effort to honor your request except in limited
circumstances where we have the capability to delete the entry, batch or
file.
11. Name and Account Number Inconsistency. You must ensure
the accuracy of your entries and instructions. If an entry describes the
receiver inconsistently by name and account number, payment may be
made by the RDFI (or, for an on -us entry, by us) on the basis of the
account number, even if that number identifies a person other than the
named receiver. You are responsible for any loss associated with such
inconsistency and your obligation to pay us the amount of the entry is
not excused in such circumstances.
12. Notice of Returned Entries. We give you notice by online
service, secured e-mail, facsimile or mail promptly after we receive a
returned entry from the ACH operator. We are not obligated to
retransmit any returned entry that we originally transmitted in
compliance with these ACH origination terms and conditions. If you
want us to retransmit a returned entry to the ACH operator, you must
retransmit the entry to us.
13. Notifications of Change. We will give you notice by online
service, secured a -mall, facsimile or mail of all notifications of change
relating to your entries within two business days after we receive them.
You agree to make the required change(s) prior to submitting any
further entries to the applicable receiver's account. If you fail to correct
an entry in response to a notification of change, NACHA may impose
fines against you that may be debited directly against the designated
account(s) without prior notice.
14. Online ACH Cqntrol Service.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(a) General Description. Our Online ACH Control, or
"OAC," service for ACH origination service, the "OAC service option,"
enables you to (i) submit control totals for each file you transmit to us for
origination, (1i) view certain details for your files transmitted to us for
origination and the current processing status of that file, and (iii) create
calendars of dates on which you expect to transmit files to us. Your
selection of which of these OAC service option functions to use will be
reflected on your Online ACH Control for ACH Origination service
profiles as in effect at the relevant time. The OAC service option may
not be used when creating and originating ACH entries through certain
of our online services, as we may determine from time to time. Details
regarding the OAC service option functionality and certain requirements
that you must follow when using the OAC service option are provided in
the OAC service reference materials as we update them from time to
time.
(b) OAC Service Onion Functions.
(i) Control Totals.
(A) Through the control totals function of the OAC
service option, you may submit control totals to verify the total dollar
amount of all debit entries and, separately, all credit entries included in
each file you have transmitted to us for origination. You may also
review, modify, or delete those control totals through the OAC service
option.
(8) Each user you have authorized to use the
control totals function will be able to enter, review, modify, or delete
control totals for any files submitted under any ACH origination point, or
"application," included in your setup for ACH origination service (as
reflected in our records of our implementation of your setup) for which
you have authorized that user for the control totals function. To enter,
review, modify, or delete control totals for a file, your user must know
and select the correct application under which that file is submitted.
(C) Once we have completed processing for
origination a file that contains debit entries and credit entries in dollar
amounts that match control totals you have submitted for a file for that
application, you will not be able to change or delete those control totals
for that file.
(D) If you are using the control totals function of the
OAC service option, you can elect to have us send to one or more users
set up in the OAC service one or more file status alerts available for the
control total function, including alerts to notify you when we have
received a file, when we have successfully processed the file for
origination, and when a file has been suspended because of missing
control totals. Each user you designate to receive a file status alert will
be sent that alert for any file you submit for origination. You agree,
however, that we will not have any liability if we fall to send to any one of
those designated users or any one of those designated users does not
otherwise receive one of those file status alerts.
(11) File Inquiry.
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(A) Through the file inquiry function of the OAC
service option, for any file you have submitted to us for origination and
that we have started to process, you will be able to review certain details
for that file, and batches and entries included in the file. You will also be
able to view the current processing status of that file, including whether
that file has been successfully processed for origination by us, is being
processed but has suspended, has been rejected, or has been deleted.
This information for a file will only be available through the file inquiry
function of the OAC service option for the period of time specified in the
reference materials (as in effect from time to time).
(B) Each user you have authorized to use the file
inquiry function will be able to view all information available in the file
inquiry function for any files you have transmitted to us for origination
under any application for which you have authorized that user for the file
inquiry function.
(C) Each user you have authorized to use the file
inquiry function of the OAC service option will also be able to view all
information available for any ACH entries you receive which settle to an
account which is included as a settlement account for any application
included in any function of your setup of the OAC service option and for
which you have authorized that user for the file inquiry function.
(III) Calendar Monitoring.
(A) Through the calendar monitoring function of the
OAC service option, you may create and maintain one or more
calendars of the dates on which you expect to transmit an ACH file to us
for origination. You may establish up to five. calendars for each
application which you included in your setup of the calendar monitoring
function of the OAC service option (as reflected in our records of our
implementation of your setup of the OAC service option).
(B) To set up a new calendar for the calendar
monitoring function, you must first request (in a form acceptable to us)
for us to set up a blank calendar for an application included in your set
up of the calendar monitoring function. As part of that calendar setup,
you must provide us with the window(s) of time (between our ACH
processing windows) in which you expect to transmit your files to us and
the number of files you expect to transmit under that calendar on a day.
Once we have set up one or more blank calendars for an application
included in your setup of the calendar monitoring function, you can set
the dates you expect to submit a file to us on any of those calendars
and view and change the dates on any of those calendars through the
calendar monitoring function. Before the end of each year, we will set
up each of your calendars as a blank calendar for the applicable
application in the following year and use the same windows of time you
designated for each calendar as the windows of time in which you
anticipate transmitting your files to us (and the same number of files you
expect to transmit on a day under that calendar). Once a calendar has
been set up for an application for the following year, you will need to set
each of the dates on which you expect to transmit a file.
(C) Each user you have authorized to use the
calendar monitoring function of the OAC service option will be able to
view and set dates for any calendar established for an application
TREASURY MANAGEMENT
TERMS AND CONDITIONS
included in your setup of calendar monitoring function for which you
have authorized that user to use the calendar monitoring function.
(D) If you are using the calendar monitoring
function of the OAC service option, you can elect to have us send to one
or more of your users set up in the OAC service certain email alerts if
files are not submitted to us in accordance with the dates and
designated windows of times you have scheduled. If you scheduled a
date on a calendar for an application included in your setup of the
calendar monitoring function and a file is not transmitted to us under that
application by the start of the our ACH processing window following a
window of time designated for that calendar in which you anticipated
transmitting a file to us, we will send an email to each user you
designate to alert your designated users that we did not receive a file on
a date and at a time you scheduled. That email alert would be sent after
we completed our processing for that ACH processing window.
Similarly, if a file is transmitted to us on a date which was not a date
scheduled on one of your calendars for an application or in a window of
time which was not one of the windows of time you designated for a
calendar as the time you anticipated transmitting a file to us, we will
send an email to each user you designate that a file was submitted on a
date or at a time that was not scheduled as a date or the time you
expected to send a file to us. That email alert would be sent after we
completed our processing for that ACH processing window. Each of the
email alerts available for the calendar monitoring function will be sent to
each of the users set up in the OAC service which you have designated
to receive that type of alert. You agree, however, that we will not have
any liability if we fail to send to any one of those designated users or
any one of those designated users does not otherwise receive one of
those alerts.
(E) Even if a file is submitted under an application
included in your setup of the calendar monitoring function of the OAC
service option on a date or during a window of time that was not
scheduled for a calendar for that application, we will continue to process
that file in accordance with our normal procedures. If you have more
than one calendar setup for an application and you have scheduled on
more than one calendar the same date to submit a file we can not
determine which file was sent for which calendar. Additionally, if you
have more than one window of time scheduled for one day on a
calendar, we can not determine which file was sent for which window of
time. Therefore, you can not tell from an email alert, or fact that you did
not receive an email alert, whether we received the correct file
scheduled for that calendar or that window of time.
(c) Setting uo Alerts. Your security administrator will
designate which users included in your setup of the OAC service are to
be sent an alert available in the OAC service and which alerts each user
is to be sent. Alerts will be sent to each user at the email address
designated in setup for that user in the OAC service option.
(d) Designation of Security Administrator(sl. In order to
use the features of the OAC service option (unless you are also
currently using the OAC service for the ACH Fraud Control service), you
must initially designate one person as one of your security
administrators for the OAC service. That initial security administrator
will be identified on your service profiles for the OAC service as in effect
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at the relevant time. That initial security administrator and each other
user who has been granted user administration rights in the OAC
service will be an "OAC security administrator of yours for the OAC
service. Each OAC security administrator will have all of the rights and
responsibilities described in any terms and conditions for the OAC
service, the reference materials for the OAC service, or the general
terms and conditions. Each OAC security administrator included in your
setup of the OAC service may be able to administer the rights and
permissions of any user included in your setup of the OAC service,
Including themselves, and grant any of those users, including
themselves, access to any functionality available to you in the OAC
service. It is important for you to note that if you also use the OAC
service for your setup of the ACH Fraud Control service, any OAC
security administrator will be an OAC security administrator for the OAC
service option for the ACH Fraud Control service as well and can entitle
users for both the OAC service option for the ACH Origination service
and the CAC service option for the ACH Fraud Control Service. Any
OAC security administrator may terminate administration entitlements of
any other OAC security administrator directly through the OAC service,
including your initial OAC security administrator you designated on your
service profiles for the OAC service. We will provide the initial
authorization codes for use by your initial OAC security administrator
Identified in your service profiles for the OAC service as they are in
effect at the relevant time. We will deliver these authorization codes
directly to your initial OAC security administrator.
(e) Authorization Codes and Security Procedures. The
security procedures for the OAC service include the requirement that
each user is required to enter that user's authorization codes to log on
to the OAC service. We may require that a user provide additional
information or use other additional security procedures to authenticate
that user. Your users should not give their authorization codes to any
other person or use them anywhere other than within the OAC service.
The user's initial authorization codes to access the OAC service will be
supplied by an OAC security administrator as described in the general
terns and conditions. You are solely responsible for developing
appropriate checks and balances to effectively control and monitor the
use of the OAC service by all your users, including but not limited to,
each of your OAC security administrators. You agree that these
security procedures are commercially reasonable.
15. Security Procedures. You agree to comply with the following
security procedures in using the ACH origination service and agree that
these security procedures are commercially reasonable:
(a) System Edit. We will only accept entry files that
pass our system edit. That system edit examines various attributes of
an entry file, including the settlement account, the credit or debit nature
of the entries contained in the file and the application identification
number contained in the file's header or trailer record. We will reject
any entry file that does not pass our system edit and will notify an
authorized representative of that rejection. You agree that all entry files
that pass our system edit will conclusively be deemed to have been
authorized by you.
(b) Control Totals. Except for entry files that are
transmitted through certain online services, you are required to verify
TREASURY MANAGEMENT
TERMS AND CONDITIONS
the total dollar amounts for all debit entries and, separately, for all credit
entries contained in each entry file by submitting to us the total dollar
amount for each, or the 'control totals.' Except for files transmitted or to
be converted into an EDI format, you must submit the verifying control
totals through either the control totals function of the OAC service option
or our phone authorization line or "PAL° system. Your election to use
the control totals function of the OAC service option will be reflected in
your service profiles for the OAC service option, as in effect at the
relevant time. To submit control totals through the OAC service option
requires that the users you have authorized to use the control total
function for the applicable application must follow the security
procedures outlined for accessing the control totals function of the OAC
service option. To submit control totals through PAL requires the use of
the ACH authorization code that we assign and distribute directly to your
authorized representative. If your file is transmitted or to be converted
into an EDI format, your authorized representative will be required to
provide control totals to our EDI department by a method that is
acceptable to that department. If you use a third -party processor that
sends your entries to us in a file that also contains entries being initiated
on behalf of other clients, then your third -party processor may give us
control totals on an aggregate basis for all entries contained in that file.
(c) Online Services. For entry files or instructions
that are transmitted to us through one of our online services, you are
required to comply with the security procedures for that online service.
If you use a third -party processor that sends your entries to us in a file
that also contains entries being initiated on behalf of other clients, then
your third -party processor will use the authorization codes that we
issued to it, rather than ones we issued to you.
(d) Direct Transmissions. For entries transmitted
directly through communications software, a logon record with a unique
ID and password is required. The ID and password are provided with
the establishment of the direct transmission product. if you use a third -
party processor that sends your entries to us in a file that also contains
entries being initiated on behalf of other clients, then your third -party
processor will use the ID and password that we issued to it, rather than
ones we issued to you.
(a) Cancellation Reguests. Instructions canceling an
entry may be delivered by a facsimile or through certain online services.
We may verify or authenticate any instructions by calling the authorized
representative giving us the instructions or by any other means we
believe to be reasonable in the circumstances, but are under no
obligation to do so. We will have no liability for acting on instructions we
believe in good faith to have been given by an authorized
representative.
(f) General. We may verify or authenticate any entry or
files by contacting you by telephone or by any other method we believe
is reasonable under the circumstances, but we are under no obligation
to do so. If we are unable to verify or authenticate an entry or file, we
may refuse to process such entry or file. We may change the security
procedures by giving you notice of the changes and any changes will
take effect immediately upon your receipt of that notice.
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16. Payment for Entries. You must pay us the amount of each
credit entry we have originated on your behalf and we will pay you the
amount of each debit entry that we have originated on your behalf, all at
such times as we may determine. You must also pay us (at such time
as we may determine) the amount of each debit entry we have
originated on your behalf that is returned by the RDFI. We may, without
notice or demand, (a) debit any designated account for amounts that
you owe us under these ACH origination terms and conditions and
(b) credit any designated account for the amount of (i) originated debit
entries and (ii) returned entries previously debited from any designated
account. You must at all times maintain sufficient available funds in the
designated account(s) to cover your payment obligations to us. If your
obligations to us at any time exceed the available funds in the
designated account(s), we may refuse to process entries until you
deposit sufficient available funds and/or debit or place a hold on funds in
any account you maintain with us. We have the right to set off against
any amount we owe you, in payment of your obligations to us.
17. Representations for all Entries. You give us the following
representations with respect to every entry you send us: (a) the receiver
designated in that entry authorized you to initiate the entry and to credit
or debit its account in the amount and on the effective entry date of the
entry, (b) the receiver's authorization is and will remain effective until the
receivers account is debited or credited, (c) the entry conforms to your
obligations under the general terms and conditions, these ACH
origination terms and conditions, the rules and the ACH origination
reference materials, (d) the entry complies with and does not violate
applicable laws and regulations (including those relating to sanctions
programs), and (e) you have performed a reasonable examination of
your receiver relationships to identify transactions with those receivers
which must be originated using the [AT entry class code. You agree to
be bound by the rules and acknowledge that payment of an entry by the
RDFI to the receiver is provisional until the RDFI receives final
settlement for such entry and that, if such settlement is not received, the
RDFI will be entitled to a refund from the receiver of the amount credited
and, in such case, you will not be deemed to have paid the receiver the
amount of the entry.
18. Additional Representations for Specific Entry Types. The
rules contain special requirements and impose additional obligations on
us when we act as your ODFI with respect to certain entry types. As a
result, we must obtain additional agreements and representations from
you with respect to those entry types. Those additional agreements and
representations are set forth for each entry type below. If you send us
any of the entry types described below, you automatically make the
additional agreements and representations to us that are set forth for
that entry type below.
(a) ARC (Accounts Receivable) Entries. If you send us debit
entries using an ARC entry class code (each an "ARC Entry"), you
further represent and warrant to us and agree that:
(1) The entry is a single-entry debit for conversion of
receivers check or draft for the payment of goods or services;
(ii) A check or draft provided by the receiver to you and
received (a) via the U.S. mail (or an equivalent service, such as an
TREASURY MANAGEMENT
TERMS AND CONDITIONS
overnight delivery service), (b)at a drop box location, or (c) in person for
payment of a bill at a manned location serves as the source document
for the receiver's routing number, account number, check serial number
and dollar amount for the entry, and contains a pre-printed serial
number, does not include an Auxiliary On -Us Field in the MICR line, is
for an amount of $25,000 or less and was completed and signed by the
receiver,
(III) The check or draft used as the source document for
the entry is eligible to serve as a source document under the rules and
is not one of the following: third party checks or drafts, drafts that do
not include the signature of the receiver, checks provided by a credit
card issuer to access a credit account, checks drawn on home equity
lines of credit, checks drawn on an investment company, obligations of
financial institutions, such as, travelers checks or money orders, checks
drawn on federal institutions, such as, the Treasury of the United States
or Federal Reserve Bank, checks drawn of state or local government
and not payable through or at a participating depository financial
institution, and checks or drafts payable in a medium other than United
States currency;
(iv) For source documents received via U.S. mail (or an
equivalent service, such as an overnight delivery service) or at a drop
box location, in advance of receiving the source document for the entry,
you gave the receiver a notice that complies with the rules and that
clearly and conspicuously stated that receipt of receivers source
document would authorize an ACH debit entry to receivers account in
accordance with the terms of such source document, and for source
documents that are provided by the receiver in -person for payment of a
bill at a manned location, you provided a copy of such notice at the time
of the transaction;
(v) The source document for the entry has not been
altered;
(vi) The source document for the entry is not subject to
any defense or claim of any person;
(vii) The source document for the entry is drawn on,
payable through, or payable at the RDFI, and the amount of the entry,
the routing number, the account number and check serial number are in
accordance with the source document for the entry;
(viii) The source document for the entry will not be
presented to the RDFI unless the entry has been returned by the RDFI;
(ix) You have not key -entered the routing number,
account number, or check serial number from the source document for
the entry, other than to correct errors relating to MICR misreads,
misencoding or processing rejects;
(x) You must retain a reproducible, legible image,
microfilm or copy of the front and back of the source document for two
years from the date of the settlement of the entry;
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(A) You will give us a copy of the front and back of the
source document within five business days of our request,
(xii) You will establish reasonable document
retention/destruction polices and use commercially reasonable methods
to securely store all source documents until destruction, and all banking
information relating to ARC Entries, and
(xiii) You will comply with the rules for ARC Entries.
(b) Back Office Conversion (BOC) Entries. If you send us
debit entries using a BOC entry class code (each a "BOC Entry"), you
further represent and warrant to us and agree that:
(1) The entry is sent to collect truncated checks for
payment of goods or services;
(ii) Prior to the receipt of each source document that is
used as the basis for the origination of a BOC entry, you will provide the
receiver with notice that includes the following, or substantially similar,
language:
"When you provide a check as payment, you authorize us either to use
information from your check to make a one-time electronic fund transfer
from your account or to process the payment as a check transaction.
For inquiries, please call <retaller phone number>."
Such notice will be posted in a prominent and conspicuous location and
a copy of such notice, or language that is substantially similar, will be
provided to the receiver at the time of the transaction.
(iii) A check or draft provided to you by the receiver at
the point of purchase serves as the source document for the receiver's
routing number, account number, check serial number and dollar
amount for the entry. Such source document for the BOC Entry:
(A) Contains a pre-printed serial number,
(B) Does not contain an AuAllary On -Us Field in
the MICR line,
(C) Is in an amount of $25,000 or less; and
(D) Was completed and signed by the receiver.
(iv) The checks or drafts used as the source document
for a BOC Entry are not:
(A) Checks or sharedrafts that have not been
encoded in magnetic ink;
(B) Checks or sharedrafts that contain an Au)aliary
On -Us Field in the MICR line;
(C) Checks or sharedrafts in an amount greater
than $25,000;
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(D) Third -party checks or sharedrafts;
(E) Remotely created checks, as defined by
Regulation CC, and third -party drafts that do not contain the signature of
the Receiver,
(F) Checks provided by a credit card issuer for
purposes of accessing a credit account or checks drawn on home equity
lines of credit;
(G) Checks drawn on an investment company;
(H) Obligations of a financial institution (e.g.,
traveler's checks, cashier's checks, official checks, money orders, etc.);
(1) Checks drawn on the Treasury of the United
States, a Federal Reserve Bank, or a Federal Home Loan Bank,
(J) Checks drawn on a state or local government
that are not payable through or at a Participating DFI; or
(K) Checks or sharedrafts payable in a medium
other than United States currency.
(v) You will employ commercially reasonable
procedures to verify the identity of the receiver,
(vi) You have established and will maintain a working
telephone number for receiver inquiries regarding the transaction that is
answered during normal business hours. This telephone number will be
displayed on the notice required to be given to the receiver.
(vii) The amount of the entry, the routing number, the
account number and check serial number are in accordance with the
source document for the entry;
(viii) You used a reading device during the initial
processing of the BOC entry to capture (and did not key -enter) the
receiver's routing number, account number, and check serial number
from the receiver's source document for the entry, and key -entered such
information only to correct errors relating to MICR misreads,
misencoding or processing rejects.
(ix) You will not use the source document for the entry
as a check to obtain payment unless the BOC entry is returned by the
RDFI.
(x) You will retain a reproducible, legible image,
microfilm or copy of the front of the receiver's source document for each
BOC entry for two years from the settlement date of the BOC entry.
(A) Upon our request, you will give us, within five
banking days of such request, a copy of the front of the receiver's
source document (and such copy will indicate that it is a copy on its
face).
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(xii) You will employ commercially reasonable methods
to securely store:
(A) All source documents until they are destroyed;
and
(B) All banking information relating to BOC Entries.
(xiii) You have and will continue to otherwise comply with
the rules for BOC entries.
(c) International ACH Transaction (IAT) Entries. If you send
us an entry that is an IAT entry, you further represent and warrant to us
and agree that:
(i) The entry will be identified by, and will comply with
the requirements of, the IAT entry class code, including complying with
all NACHA record format specifications for the IAT entry class code.
(ii) If you originate an entry using another entry class
code and we determine in good faith the entry should have been
originated using the IAT entry class code, in addition to any other rights
we have, we may suspend the processing of and/or reject that entry (or
batch or file containing that entry) and we may also suspend and/or
terminate your ACH origination service immediately without prior notice.
Similarly, a gateway operator or ACH operator may suspend the
processing of and/or reject an entry that it determines should have been
originated as an IAT entry and was not.
(iii) You are in compliance with, and the entry complies
with, all applicable United States laws and regulations, including
sanctions and other programs administered by the U.S. Department of
Treasury's Office of Foreign Asset Control, "OFAC," or Financial Crimes
Enforcement Network.
(iv) You are in compliance with, and the entry complies
with, the laws, regulations, and payment system rules of the receiving
country, including any requirements to obtain the receiver's written, oral,
or electronic authorization, for the receiver's authorization to be validly
signed, for the receiver's authorization to be in proper form to authorize
the foreign RDFI to debit the receiver's account, to provide notice of the
entry prior to it settling in the receiver's account, to provide notice to the
receiver of the receiver's recourse and other provisions relevant to the
receiver, and to obtain a separate authorization from the receiver for
each debit entry initiated at sporadic times, instead of set intervals.
(v) in addition to any other rights we have, if we suspect
that the entry may not, or determine that the entry does not, comply with
any applicable laws or regulations, the rules, or any other payment
system rules (including those laws and regulations relating to sanctions
programs), we may suspend processing of and/or reject the entry and
hold funds debited from or to be credited to your account for the entry.
(vi) You will maintain either the original or a copy of any
authorization required from the receiver for the entry for the longest
period of time we may be required to produce that authorization under
any of the rules, the laws and regulations of the U.S., and the laws,
TREASURY MANAGEMENT
TERMS AND CONDITIONS
regulations, and payment system rules of the receiving country. You will
make available for inspection, within a reasonable time, upon our
request or the request of the receiver or an authorized representative of
the receiver (including the receiving bank) the authorization required
from the receiver of the entry.
(vii) If the entry is an outbound IAT entry, you authorize
(and authorize us to authorize) the gateway operator to transmit the
entry to the foreign gateway operator and to arrange for the settlement
of the entry with the foreign gateway operator, for further transmission
to, and settlement with, the foreign RDFI for credit or debit of the
amount to or from the receiver's account.
(viii) If the entry is an outbound IAT entry and we do
not have an agreement for processing IAT entries with the domestic
RDFI that serves as the gateway operator for the entry, it may result in
either us or the gateway operator suspending the processing of and/or
rejecting the entry (or the batch or file in which the entry is contained).
(ix) You have sole responsibility for all losses and other
risks relating to foreign exchange conversion with respect to the entry.
(x) In addition to any other indemnity obligations you
have under the general terms and conditions or these ACH origination
terms and conditions, you will defend, indemnify, protect and hold us,
our affiliates, and our respective officers, directors, employees,
attorneys, agents, and representatives harmless from and against any
and all liabilities, claims, damages, losses, demands, fines, judgments,
disputes, costs, charges, and expenses which relate in any way to (i)
any IAT entry (or requests or instructions related to an IAT entry) you
send us that does not comply with all applicable laws and regulations,
the rules, and the payment system rules of the receiving country, or (ii)
any breach of any representation, warranty, or agreement you have
made related to an IAT entry. Without limiting the foregoing, you agree
you are liable for and will reimburse us for all amounts that may be
erroneously paid by us or any receiving bank in respect of any entry
erroneously credited or debited by us or any receiving bank pursuant to
any IAT entry you originated or related instructions you gave and any
claim paid by us (including any claim for interest) as a result of a
declaration of a receiver or other person alleging that an IAT entry was
not originated in accordance with the receiver's authorization, the
receiver's authorization was revoked, a required notification was not
given in sufficient time before the entry was processed to the account of
the receiver, or no valid authorization ever existed between the receiver
and you.
(xi) Because of the requirements for processing IAT
entries, the processing of an IAT entry may be delayed or suspended.
Any such delay or suspension may affect the settlement of and
availability of funds for an IAT entry. You will transmit IAT entries to us
in files comprised solely of IAT entries, rather than in a file that also
contains other entry types. If you include an IAT entry in a file that
contains other entry types, the processing of the entire file, not just the
IAT entries, may be delayed or suspended, affecting settlement of and
availability of funds for any entry in that file. In addition to any other
limits on our liability, we will not have any liability for any delay in or
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suspension of processing or rejection of an IAT entry (or file containing
an IAT entry), in accordance with our processing requirements for IAT
entries or applicable law, or for the actions of any third parties (including
any gateway operator or ACH operator) resulting in the delay in or
suspension of processing or rejection of an IAT entry.
(xii) A gateway operator may return the entry after the
period of time for the return of an IAT entry provided in the rules, and
you agree we may settle that return to one of your accounts.
(xiii) Your obligations with respect to any IAT entries
under the these ACH origination terms and conditions, including any
obligations under the payment system rules of the receiving country,
shall continue to remain in full force and effect after the termination of
your ACH origination services or your ability to generate IAT entries with
respect to any entry you originate prior to the effective date of such
termination.
(xiv) You have and will continue to comply with the rules
for IAT entries.
(d) POP (Point -of Purchases) Entries. If you send us debit
entries using the POP entry class code (each a "POP entry"), you
further represent and warrant to us and agree that:
(i) A check or draft provided by the receiver at the point
of purchase serves as the source document for receiver's routing
number, account number, check serial number and dollar amount for the
entry, and that source document contains a preprinted serial number,
does not contain an Auxiliary On -Us Field in the MICR line, is for an
amount of $25,000 or less, was completed and signed by the receiver,
and has not previously been provided by the receiver for use in any
other POP entry;
CH) Prior to the receipt of each source document that is
used as the basis for the origination of a POP entry, you will provide the
receiver with notice that includes the following, or substantially similar,
language:
"When you provide a check as payment, you authorize us either to use
information from your check to make a one-time electronic fund transfer
from your account or to process the payment as a check transaction."
Such notice will be posted in a prominent and conspicuous location and
a copy of such notice, or language that is substantially similar, will be
provided to the receiver at the time of the transaction;
(iii) You have voided the source document and returned
it to the receiver at the pant of purchase;
(iv) The source document is an eligible item for POP
entries under the rules, and you have not used a previously voided item
as the source document;
(v) You have obtained the receiver's signed, written
authorization for the entry;
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(vi) You have not key -entered the routing number,
account number or check serial number from the source document;
(vii) You will give us a copy of the receivers written
authorization for the entry within five days after we request it;
(viii) You have given the receiver of the entry a receipt for
that entry that contains all of the information required under the rules;
and
(ix) You will comply with all rules and regulations under
the Rules for POP Entries.
(e) RCK (Re -presented Check) Entries If you send us debit
entries using the RCK entry class code (each an "RCK Entry"), you
further represent and warrant to us and agree that:
(i) The entry is sent to collect a check or draft drawn on
a consumer account that has been returned;
(ii) You have good title to and are entitled to enforce the
returned item to which the entry relates and can transfer good title to us;
(iii) All signatures on the returned item to which the
entry relates are authentic and authorized;
(Iv) The returned item to which the entry relates has not
been altered and the entry is for no more than the face value of such
item;
(v) The returned item to which the entry relates is not
subject to any defense or claim in recoupment of any person, including
any defense or claim that could be asserted against us;
(vi) You have no knowledge of any insolvency
proceeding commenced with respect to the maker, acceptor or drawer
of the returned item to which the entry relates;
(vii) The returned item to which the entry relates is
drawn on, payable through, or payable at the RDFI, and the amount of
the item, the item number, and the account number contained on such
item have been accurately reflected in the entry;
(viii) Neither the returned item to which the entry relates
nor a copy of such item will be presented to the RDFI, unless the related
entry has been returned by the RDFI;
(ix) The information encoded after issue in magnetic ink
on the returned item to which the entry relates is correct;
(x) Any restrictive endorsement made by you or your
agent on the returned item to which the entry relates is void or
ineffective upon initiation of the entry;
(A) The item is an eligible item as defined in the rules;
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(xii) You have given the receiver of the entry a notice
that dearly and conspicuously states the terms of the represented check
entry policy in advance of receiving the item to which the entry relates;
(Aii) You will maintain a copy of the front and back of the
returned item to which the entry relates for seven years from the
settlement date of the entry;
()dv) You will give us either the original returned item to
which the entry relates (if we request it within 90 days of the settlement
date) or a copy of the front and back of such item within five business
days of our request;
(xv) The entry was transmitted in time for us to transmit
the entry to the RDFI's ACH operator by midnight of the second banking
day following the banking day of receipt of the presentment notice for
the returned item to which the entry relates, and
(xvi) You will comply with the rules for RCK Entries.
(f) TEL (Telephone -Initiated) Entries. If you send us debit
entries using the TEL entry class code (each a "TEL entry"), you further
represent and warrant to us and agree that:
(i) You have used commercially reasonable
procedures to verify the identity of the receiver of the entry;
(ii) You have used commercially reasonable
procedures to verify that the routing number associated with the entry is
valid;
(III) You have obtained oral authorization from the
receiver for the entry, and the authorization complies with the rules and
contains all of the information required under the rules,
(iv) For an authorization relating to a single entry TEL
entry, you will either make an audio recording of the oral authorization,
or provide the receiver with written notice confirming the oral
authorization prior to the settlement date of the entry;
(v) For an authorization relating to recurring TEL
entries, you will comply with the requirements of Regulation E for the
authorization of preauthorized transfers, including the requirement to
send a copy of the authorization to the receiver,
(vi) For a single entry TEL entry, you will retain the
original or a microfilm or microfilm equivalent copy of the written notice
or the original or a duplicate audio recording of the oral authorization for
two years from the date of the authorization, and you will give us a copy
of such audio recording or such notice immediately upon our request;
(vii) For recurring TEL entries, you will retain for two
years from the termination or revocation of the authorization (a) the
original or a duplicate audio recording of the oral authorization, and (b)
evidence that a copy of the authorization was provided to the receiver in
compliance with Regulation E; and
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(viii) You will comply with all rules and regulations under
the rules for TEL Entries.
(g) WEB (Intemet-Initiated/Mobile) Entries. If you send us
debit entries using the WEB entry class code (each a "WEB entry"), you
further represent and warrant to us and agree that:
(i) The entry is transmitted pursuant to an authorization
that is obtained from the receiver via the Internet or Wireless Network to
effect a transfer of funds from a consumer account of the receiver, or
pursuant to any authorization permitted by the rules if the receiver's
instruction for the initiation of the individual debit entry is designed to be
communicated via a Wireless Network;
CH) You have employed a commercially reasonable
fraudulent transaction detection system to screen the entry,
(III) You have used commercially reasonable
procedures to verify the identity of the receiver of the entry;
(iv) You have utilized commercially reasonable
procedures to verify that the routing number associated with the entry is
valid;
(v) You have used encryption for transmittal of banking
information related to any entry or you have established a secure
Internet session with the receiver of the entry, in either case utilizing
commercially reasonable security technology providing a level of
security that, at a minimum, is equivalent to 128-bit encryption
technology prior to the receiver's key entry and through transmission to
the originator of any banking information, including, but not limited to,
any entry, the receiver's routing number, account number and PIN
number or other identification symbol;
(vi) You will conduct or have conducted annual audits to
ensure that the financial information you obtain from receivers is
protected by security practices and procedures that include, at a
minimum, adequate levels of (A) physical security to protect against
theft, tampering, or damage, (B) personnel and access controls to
protect against unauthorized access and use, and (C) network security
to ensure secure capture, storage, and distribution;
(vii) You will provide us upon request with proof that is
satisfactory to us that your annual security audit has been properly
conducted;
(viii) You have obtained a properly authenticated
authorization from the receiver complying with the rules, and shall give
us a copy of that authorization within five days after we request it; and
(ix) You will comply with the rules for WEB Entries.
(h) Return Fee Entries. If you send us a debit entry for a
return fee charged to a recevier for a debit entry or other item that was
returned for insufficient or uncollected funds (a "Return Fee Entry"), you
further represent and warrant to us and agree that:
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(i) The Return Fee Entry is in relation to the return of
either (a) a debit entry to a consumer account of a receiver, (b) an ARC,
BOC or POP entry to a non -consumer account of a receiver, or (c) an
item that was eligible to be converted to a debit entry, but was not
converted to an entry;
(h) The Return Fee Entry is for the purpose of collecting
a return fee that is permitted under the rules for Return Fee Entries, and
you have satisfied all requirements with respect to the returned item in
order to originate the Return Fee Entry;
(ill) If you have satisfied the requirements for
authorization of a Return Fee Entry by providing notice to the receiver at
the time that the underlying entry was authorized or the original item
was accepted, the notice included the following, or substantialy similar,
language:
"If your payment is returned unpaid, you authorize us to make a one-
time electronic fund transfer from your account to collect a fee of [$ ];"
or
"If your payment is returned unpaid, you authorize us to make a one-
time electronic fund transfer from your account to collect a fee. The fee
will be determined [by/as follows]: [ ]";
(iv) You have not and will not impose any other return
fee in relation to the underlying entry or item that was returned unpaid;
and
Cash Concentration Service
1. Description of the CashCon Service. The SunTrust Cash
Concentration or "CashCon" service allows you to manage your
available balances at other financial institutions by sending debit entries
to those accounts through the automated clearing house, which is a
funds transfer system for sending and settling electronic entries among
participating financial institutions. Details regarding CashCon's
functionality and certain requirements that you must follow when using
the CashCon service are provided in the CashCon reference materials
as they are updated from time to time.
2. Functioning of, the CashCon Service. Under the CashCon
Service, we act as the originating depository financial institution or
"ODFI" with respect to debit entries that you send us or that are sent to
us on your behalf that are directed to your accounts at other financial
institutions that you have identified (in a form acceptable to us) and we
have included in our implementation of your setup for the CashCon
Service. The accounts that you maintain at other financial institutions
are referred to as the "reporting location accounts". Debit entries
directed to a reporting location account are referred to as
"concentration" entries. You will be the "originator" for each of those
entries. Your use of the CashCon service is subject to the terms and
conditions for the ACH origination service.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(v) You have complied with all rules for Return Fee
Entries, including formatting requirements and settlement date
requirements, if applicable.
19. Audit Rights. At any time, upon two days' prior notice, we
may perform a remote or onsite audit of your systems, procedures and
controls, and records as we deem necessary to determine your
compliance with the rules and these ACH origination terms and
conditions. You will provide us with reasonable assistance and
information to conduct such audit, including reasonable access to
operating systems, policies, procedures, records, and other materials.
20. Notices. Oral notices or communications relating to entries,
instructions and these ACH origination terms and conditions must be
given (a) if to us, to your treasury management sales officer, treasury
management customer service specialist or as otherwise provided in
these terms or conditions or the ACH origination reference materials
and (b) if to you, to the telephone number you provide in your ACH
origination service profiles as they are in effect at the relevant time.
Written notices, instructions, directions, confirmations, verifications, or
other communications with respect to entries and these ACH origination
terms and conditions must be given (a) if to us, to your treasury
management sales officer, treasury management customer service
specialist or as otherwise provided these terms or conditions or the ACH
origination reference materials and (b) if to you, at the address reflected
in our records. You and we may both change our telephone number(s)
or address(es) by giving written notice to each other.
3. Implementation of CashCon Setup. We need certain
information to implement your setup for the CashCon service. You
agree to give us all of this information in a form that is acceptable to us.
The SunTrust account used to settle concentration entries is referred to
as the "designated account." A reporting location account must use the
same designated account to settle concentration entries. However,
each reporting location account may use a different designated account
and any designated account may be used to settle concentration entries
for multiple reporting location accounts. The designated accounts are
identified in your CashCon Service profiles as they are in effect at the
relevant time.
4. Origination and Processing of Entries. You must send all
concentration entries to us by using one of the following delivery
methods: (a) calling our voice response system, (b) calling one of our
live operators, (c) logging on to our CashCon web site or (d) accessing
our dial -up corporate control service. The telephone numbers and the
Internet address are provided in the CashCon reference materials. If we
receive your concentration entries after the delivery deadline set forth in
the CashCon reference materials, we will treat them as if we received
them on our next business day. We will format, process and settle to
the relevant designated account all concentration entries that we receive
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from you in accordance with the rules, these CashCon terms and
conditions and the terms and conditions for the ACH origination service.
5. Security Procedures. The following security procedures apply
to your use of the CashCon service:
(a) Company Number. We will give you an authorization
code that the voice response system, our live operators, the web site
and the corporate control service may refer to as the company number.
The company number is not unique to you and we may give the same
company number to multiple clients. You must use the company
number to send us a concentration entry through any delivery method
for any reporting location account that we have included in your setup
for the CashCon service.
(b) ID Number, Location Code or Location. We will also give
you an authorization code(s) for each reporting location account that we
have included in our implementation of your setup for the CashCon
service. The voice response system and our live operators may refer to
this code as the ID number, the web site may refer to it as the location
code and the corporate control service may refer to it as the location.
Each ID number, location code or location is limited to initiating
concentration entries to a particular reporting location account. You
must use the appropriate ID number, location code or location to send
us a concentration entry through any delivery method for each reporting
location account that we have included in your setup for the CashCon
service.
(c) Company Password and PINs. For the web site, we will
give you (a) a single authorization code that the web site may refer to as
a password and (b) an authorization code for each location code that
the web site may refer to as a PIN. The password is linked to the
company number. As with the company number, the password is not
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(d) Division Code and Password. For the corporate control
service, we will give you two authorization codes that the corporate
control service may refer to as a division number and division password.
The division number and division password are unique to you, but are
not unique to any particular reporting location account. You must use
the company number, division number, division password and the
appropriate location to log onto the corporate control service and send
us a concentration entry for each reporting location account that we
have included in your setup for the CashCon service.
The authorization codes are not user -specific. This means that all of
your authorized users must use the same set of authorization codes to
initiate a concentration entry for a particular reporting location account.
We will send all of the authorization codes to the person(s) identified in
your CashCon service profiles as they are in effect at the relevant time.
Each such person will act as your "contact" with respect to the
authorization codes we send to him or her and will have all of the rights
and responsibilities described in the general terms and conditions. You
agree that these security procedures are commercially reasonable.
6. ACH Origination Service. These CashCon terms and
conditions are expressly made a part of the terms and conditions for the
ACH origination service and are subject to the terns and conditions
thereof. Terms that are defined in the terms and conditions for the ACH
origination service have the same meanings when used in these
CashCon terms and conditions. If there is any inconsistency on a
particular issue between these CashCon terms and conditions and the
terms and conditions for the ACH origination service, these CashCon
terms and conditions will control. You understand and agree, however,
that our agreement to provide the CashCon service does not permit you
to use any other aspect of the ACH origination service unless we have
agreed to include it in our implementation of your setup for the ACH
origination service.
unique to you and we may give the same password to multiple clients.
Each PIN, however, is uniquely linked to a particular location code. You
must use the company number, password and the appropriate location
code and PIN to log onto the web site and send us a concentration entry
for each reporting location account that we have included in your setup
for the CashCon service.
Cash Vault Service
1. Description of the Cash Vault Service. The SunTrust cash
vault service is designed to facilitate your cash and deposit needs.
Details regarding the cash vault service's functionality and certain
requirements that you must follow when using the cash vault service are
provided in the cash vault reference materials as we update them from
time to time.
2. Definitions. The following terms have the specified meanings
for the purposes of these cash vault terms and conditions:
(a) "Account" means the account(s) identified in your cash
vault service profiles as they are in effect at the relevant time to which
deposits will be made and from which cash orders will be funded.
(b) "Armored courier" means the armored courier you select
that uses secure, marked vehicles and armed personnel to transport
deposits and cash orders.
(c) "Authorized user" means any person that you are
deemed to have authorized to place cash orders up to the order limit,
including each person you have designated (in a form acceptable to us)
as an authorized user.
(d) "Business day" means Monday through Friday, excluding
holidays that we observe.
(e) "Cash orders" means those orders you give us for the
delivery of U.S. coins or currency by armored courier.
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(f) "Cash vault (s)" means the cash vault(s) that we have
designated as serving your business location(s).
(g) "Contaminated currency" means any currency which the
Federal Reserve Bank classifies as contaminated, including any
currency damaged by or exposed to a contaminant hazard (including
any chemical, radioactive or biological substances) that may present a
health or safety risk or that cannot be processed under normal operating
procedures.
(h) "Deposits' means deposits of funds that you deliver to
the cash vault and are processed in accordance with these cash vault
terms and conditions.
(i) "Funds" means U.S. coins, currency, checks and other
negotiable items.
Q) "Mutilated coins" means any coins that have been bent or
twisted out of shape, punched, dipped, plugged, fused or defaced but
that can be identified as to genuineness and denomination.
(k) "Mutilated currency" means any currency that has been
damaged to the extent that one-half or less of the note remains, or its
condition is such that its value is questionable and special examination
is required before any exchange is made.
(1) "Order limit' means the maximum dollar value of cash
orders that you have designated (in a form acceptable to us) that may
be requested on any business day for each of your locations.
3. Your Obligations in Making Deposits.
(a) You must collect and count funds and place them in a
sealed, disposable deposit bag(s) or similarly designed tamper -proof
bag(s) (each such bag is referred to in these cash vault terms and
conditions as a "sealed deposit") dearly marked with your name or
identification number. Each sealed deposit must be prepared in
accordance with the requirements set forth in the cash vault reference
materials. A deposit ticket listing your name, deposit account number
and the amount of funds must be included in each sealed deposit.
(b) You must cause sealed deposits to be delivered by the
armored courier to the appropriate cash vault for each of your locations.
We may reject, impose a special fee on and/or delay processing of any
deposit if (1) the deposit ticket does not match the amount of the deposit,
(I!) the deposit was not prepared in accordance with the requirements
set forth in the cash vault reference materials, (III) the deposit is
delivered to the wrong cash vault, (iv) the deposit is delivered by anyone
other than the armored courier or (v) any deposit bag appears to be
unsealed or to have been tampered with.
(c) In the event that we accept delivery of an unsealed
deposit bag or a deposit bag that appears to have been tampered with
(each such bag is referred to in these cash vault terms and conditions
as an "unsealed deposit"), we will give you notice on the day we receive
it. Unless you have previously given us instructions on how to process
unsealed deposits, we will not process or take any action regarding an
TREASURY MANAGEMENT
TERMS AND CONDITIONS
unsealed deposit until you give us an instruction (in a form acceptable to
us) regarding its disposition.
4. Our Obliaations for Processing Deposits.
(a) We will open each sealed deposit, verify the contents
against the deposit ticket and deposit funds to the relevant account. We
will process deposits within 24 hours of delivery to the cash vault. If
there is any discrepancy between the total amount of the deposit
reflected by you on the deposit ticket and the amount counted by us, our
count will be final. If we detect any counterfeit or Illegally altered coins
or currency in a deposit, we will forward it to the Secret Service and
charge the relevant account for the difference. A deposit adjustment
notice will be sent to you on the day that the discrepancy or counterfeit
is discovered.
(b) The relationship of debtor and creditor will not exist
between you and us until we deposit the funds to your account.
5. Cash Orders. You acknowledge that each authorized user
has authority to place cash orders up to the order limits for delivery to
your location. We may place a "hold" on your account for the amount of
a cash order as soon as we receive it, and we will charge your account
for the cash order when we deliver it to the armored courier. We
reserve the right to reduce cash orders to maintain our inventory of
coins and currency.
6. Authorization Codes and Security Procedures. If you place
cash orders through our voice response unit, one of our on-line services
or another automated ordering system, we will provide authorization
codes for each of your authorized users. We will deliver the
authorization codes directly to each authorized user or to the person(s)
you have designated as your "contact' at the relevant physical or
electronic address you have designated (in a form acceptable to us).
The security procedures for cash orders placed through one of these
methods may include the requirement that your authorized users use
their authorization codes when placing a cash order. You agree that
those security procedures are commercially reasonable.
7. Risk of Delivery.
(a) You are solely responsible for engaging the armored
courier and assume any and all risks incidental to or arising out of
selection of the armored carrier, the delivery of deposits to us and the
delivery of cash orders to you. We have no responsibility or liability for a
deposit until we accept possession of it from the armored courier (as
evidenced by one of our authorized representatives signing the armored
courier's manifest acknowledging receipt of a designated number of
deposit bags included in the deposit) or for cash orders after we deliver
them to the armored courier. If a deposit is lost in transit, you are
responsible for recreating that deposit.
(b) The armored courier must be acceptable to us, in our
sole discretion. If we determine, in our sole discretion, that the armored
courier's service is not satisfactory, we may terminate your ability to use
the cash vault service by giving you 10 days notice, unless you have
engaged a new armored courier satisfactory to us, in our sole discretion,
within that 10-day period.
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8. Contaminated and Mutilated Coins or Currency.
(a) Contaminated currency must be delivered to us in a
separate sealed, tamper -evident disposable deposit bag, dearly labeled
as "Contaminated Currency." You must provide documentation stating
the type and extent of the contamination, a breakdown by denomination
of the currency and a deposit slip for the declared value. The deposit
bag and 2 copies of the required documentation must be placed in a
second sealed, tamper -evident, disposable deposit bag with stated
value recorded on the bag. We will forward the deposit of contaminated
currency to the Federal Reserve Bank for processing. Once the Federal
Reserve Bank has provided confirmation of value, we will credit your
account for the value assigned.
(b) Mutilated coins or currency must be delivered to us in a
separate sealed, tamper -evident disposable deposit bag, clearly labeled
as "mutilated coins" or "mutilated currency" as appropriate. You must
provide documentation stating the estimated value of the mutilated coins
or currency, a break down by denomination of the coins or currency, an
explanation of how the coins or currency became mutilated, and a
deposit slip for the estimated value of the deposit. The deposit bag and
2 copies of the required documentation must be placed in a second
sealed, tamper -evident, disposable deposit bag with stated value
recorded on the bag. We will forward the deposit of coins to the U.S.
Mint and the deposit of mutilated currency to the U.S. Department of the
Treasury. Once the U.S. Mint or the U.S. Department of the Treasury
has provided confirmation of the value of the mutilated coins or
currency, we will credit your account for the value assigned.
Controlled Disbursement Service
1. Description of the CDA Service. The SunTrust Controlled
Disbursement Account or "CDA" service allows you to improve control
over daily cash requirements by allowing you to defer funding of check
disbursements until the day they are presented for payment.
2. Operation of the CDA Service.
(a) As a part of our implementation of your setup for the CDA
service, we will provide you with a set of specifications that checks
issued against a disbursement account must meet. These
specifications include specific routing number and magnetic ink
encoding requirements that must be met in order for the CDA service to
operate correctly. Using checks that do not meet these specifications
can result in daily out -of -balance situations in a disbursement account.
You must give us voided sample checks for each disbursement account
so that we may test those checks for compliance with the specifications.
Once we complete our testing, we will send you a notice that your
sample checks are acceptable or that they fall to meet our
specifications. You may not issue checks against a disbursement
account until you have received a notice from us that your sample
checks for that account are acceptable.
(b) On each banking day, we will make information available
to you regarding the total dollar amount of all checks that have been
presented for payment against each disbursement account that day
before the controlled disbursement reporting time(s) that we separately
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(c) If there is any discrepancy between the value of the
contaminated currency or mutilated coins or currency assigned by you
and the amount counted by us or by the Federal Reserve Bank, U.S.
Department of the Treasury or the U.S. Mint, our count or the count of
the Federal Reserve Bank, U.S. Mint or the U.S. Department of the
Treasury will be final. We will charge you for any additional fees
charged by the Federal Reserve Bank for processing any contaminated
currency, by the U.S. Mint for processing any mutilated coins or by the
U.S. Department of the Treasury for processing any mutilated currency.
(d) We may refuse to accept any contaminated or mutilated
coins or currency unless we have given our prior approval for the
delivery of such coins or currency. If any contaminated currency or
mutilated coins or currency is included in a deposit and not contained in
separate marked deposit bag, we may refuse to process all or part of
the deposit, may return the deposit or the contaminated currency or
mutilated coins or currency contained in the deposit or may refuse to
give credit for the contaminated currency or mutilated coins or currency,
and we will charge the account for the amount of any contaminated
currency the Federal Reserve Bank has refused to process for which
your account was given provisional credit. We have no liability for the
amount of any contaminated currency or mutilated coins or currency
included in any deposit and not contained in a separate marked deposit
bag as required above.
disclose to you from time to time. We will make this information
available to you through one of our online services.
(c) You understand that we provide presentment information
to you solely to assist you in funding your disbursement accounts. The
CDA service does not relieve you of the obligation to fund your
disbursement accounts appropriately. As a result, you agree to have
sufficient available funds on deposit in each disbursement account to
pay all checks presented against that account, whether or not we have
notified you of the presentment of those checks. If the presentment
information Is not available by the reporting time, you should consider
using an estimate based on historical information. The disbursement
account may be funded by a transfer of available balances from another
account with us, a wire transfer of funds from an account at another
financial institution, or an approved line of credit from us. Whatever
method is used, we must receive that funding by the funding deadline(s)
that we separately disclose to you from time to time. In the event a
disbursement account is not adequately funded on the date of
presentment, we may return items for which there are not sufficient
funds or, if we have previously approved a line of credit to you, we may
extend credit to you in an amount sufficient to cover such items.
(d) If any ACH or other electronic debits are presented
against a disbursement account, those debits may not be included in the
information we provide you regarding daily presentments. In that event,
you must adjust your funding of the disbursement account to cover the
ACH or other electronic debits.
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SUNTRUST
(e) You agree and understand that the purpose of the CDA
service is to improve control over daily cash requirements by allowing
you to defer funding of check disbursements until the day they are
presented for payment, and not to delay the collection of funds by the
payees.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
terminated or (b) you confirm a CDA service profile that adds to or
deletes from your previous selections and we have had a reasonable
time to act on it before we receive the relevant checks.
4. Termination We may terminate the CDA service immediately
by giving you written notice of the termination. You may terminate the
3. Duration and Changing of 00ons. Once you have confirmed CDA service by giving us written notice of the termination, provided that
a CDA service profile and we have included the information from it in any termination by you will not be effective until we have had a
our implementation of your setup for the CDA service, it remains in reasonable time to act on your notice.
effect until (a) your use of the CDA service or the agreement is
Controlled Payment Service
1. Descriotion of the CPR Service. The SunTnrst Controlled
Payment or "CPR" service allows you to give us instructions to return
certain checks that you believe may be fraudulent or not validly issued.
Details regarding CPR's functionality and certain jormatting and other
technical requirements that you must follow when using the CPR service
are provided in the CPR reference materials as we update them from
time to time.
2. Operation of the CPR Service.
(a) You must transmit an issue file to us on each day on
which you have issued any checks against any account that is included
in your setup for the CPR service. We must receive that issue file by
the issue deadline set forth in the CPR reference materials and it must
contain all of the information set forth in the CPR reference materials
with respect to each check you issued that day. You may send us a
separate issue file for each account, or you may send us an aggregate
issue file for all of the accounts that are included in your setup for the
CPR service. Once we have received your issue file, we will compare
the information in that issue file with the information in our systems with
respect to checks (A) that have been presented to us through normal
check clearing channels for payment against the relevant account, and
(B) for which we have provisionally settled but have not yet posted to
the relevant account. You authorize us to post, finally pay and charge
against the relevant account, each check that matches the information
in your issue file. We will notify you of each presented check that is not
included in the issue file that we received from you or that reflects
information that does not match the information in the issue file we
received from you. The checks that are not listed or for which the
information does not match are referred to as "mismatched checks."
You must instruct us to pay or return each mismatched check by the
payment decision deadline set forth in the CPR reference materials.
Your instructions must contain all of the information with respect to each
mismatched check set forth in the CPR reference materials. You may
elect one of two ways for us to deal with mismatched items if you fail to
give us a pay or return decision by the payment decision deadline.
Under the "return default" option, you authorize us to return unpaid each
mismatched check unless we receive an instruction from you to pay it
before the payment decision deadline. Even if you select a return
default option, we may post, finally pay and charge against the relevant
account a mismatched check you haven't decisioned (A) as otherwise
provided below, for mismatched checks presented over the counter in
one of our branches and (B) mismatched checks that we believe in good
faith result solely from encoding errors. Under the "pay default" option,
you authorize us to post, finally pay and charge each mismatched check
against the relevant account unless we receive an instruction from you
to return it before the payment decision deadline. Your election of these
options is reflected in your CPR service profiles as they are in effect at
the relevant time. We may give you the option of not providing
information in your issue file on one or more check attributes(such as
the payee's name) that the CPR service is capable of matching. Of
course, not matching all available check attributes increases the risk
that a fraudulent check will not be detected as a mismatched check. As
a result, if you make the business decision of not providing information
in your issue file with respect to all available check attributes, you agree
that, in addition to the other limits on our liability provided in these CPR
terms and conditions, we will not be liable for paying any check that is
fraudulent with respect to the attributes for which you failed to provide
us information, so long as we otherwise satisfied our duty of care with
respect to the other aspects of the CPR service in processing that
check.
(b) As part of the CPR service, we can also make your issue
files available to our branches to assist our tellers in cashing checks.
This is referred to as "teller access." If a check presented for payment
over the counter in one of our branches against an account that uses
teller access (i) is presented before we have received and processed an
issue file for such check or (ii) is a mismatched check, we will attempt to
obtain approval for payment of the mismatched check by calling one of
the people you have designated as a "telephone representative" for the
relevant account as reflected in your CPR service profiles as they are in
effect at the relevant time. We will make one attempt to call each
telephone representative for the relevant account until we have reached
one of them. Each telephone representative is authorized to instruct us
to pay or return any mismatched check. If the telephone representative
we contact instructs us to pay the check, then you authorize us to post,
finally pay and charge the check against the relevant account. If we are
unable to contact a telephone representative, or the telephone
representative we contact does not instruct us to pay the mismatched
check, then you authorize us to return the check to the person
presenting it to us. Our documentation showing that we contacted or
attempted to contact your telephone representatives will be conclusive
evidence that we took the reflected action. Fraud Involving checks
presented to tellers for cashing is a common form of check fraud. Using
our teller access service is a good way to defend against that form of
fraud and we strongly encourage you to take advantage of it. However,
use of the teller access service is not mandatory and you may make a
business decision to opt out of its use. Of course, opting out of the
service Increases the risk that a fraudulent check may be cashed over
the counter in one of our branches. As a result, if you make the
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business decision to not name at least one telephone representative for
each account for which you have elected the CPR service, (A) this will
be reflected in your CPR service profiles as they are in effect at the
relevant time, (B) you will be deemed to have opted out of the teller
access service for that account and (C) you agree that we will not have
any liability for paying any check presented over the counter in one of
our branches, whether or not such check bears a forged or unauthorized
signature or is counterfeit, altered or otherwise fraudulent or not validly
issued, so long as we otherwise process that check in accordance with
our standard check cashing procedures.
3. Transmission of Information. We will transmit information
regarding mismatches to you by using certain of our online services.
You must transmit your issue files and your pay or return decisions to us
by using certain of our online services. Your issue files and pay or
return decisions must be in a format we have approved. If the relevant
online service is not available, then we will transmit the relevant
information to you by facsimile at the facsimile number listed for the
relevant authorized representative on your CPR service profiles as they
are in effect at the relevant time and you must transmit your issue files
and/or your pay or return decision to us by facsimile at the facsimile
number we specify.
4. Limits on Our Liability. You acknowledge that we will rely
completely on information and instructions you give us in providing the
CPR service to you and that we are not required to inspect any attribute
Electronic Data Interchange
1. Description of the EDI Service(s). Electronic Data
Interchange or "EDP' refers to the electronic exchange of payments,
payment -related information and other financial data in formats that
meet agreed standards. The EDI services that we offer fall into three
categories: (1) payment initiation or "integrated payables," (ii) payment
receipt or "electronic receivables delivery," and (III) financial reporting
services. Each is described below:
TREASURY MANAGEMENT
TERMS AND CONDITIONS
of a check (other than those included in the relevant issue file) that is
processed through the CPR service. As a result, you agree that, in
addition to any other limitations on our liability under the agreement, we
will not have any liability for (a) following instructions we receive from
any person we believe in good faith is one of your authorized
representatives or telephone representatives or (b) paying or returning
any check in accordance with the terms of this these CPR terms and
conditions, including any check that (i) bears a forged or unauthorized
signature or is counterfeit or otherwise not validly issued or (Ii) is altered
or otherwise fraudulent with respect to an attribute that the CPR service
is designed to match. Moreover, you acknowledge that the CPR service
is not a substitute for our stop payment service and you agree not to
report an item as "void" if you have released the item. Finally, you
understand and agree that the purpose of the CPR service is to improve
reconciliation of checks and eliminate traditional stop payment
procedures, and not to delay the collection of funds.
5. Suspension of Service. You agree that you will be in material
breach of these CPR terms and conditions if you repeatedly fail to meet
any of the deadlines described in the CPR reference materials or have
an excessive number of checks not reported on your issue file for the
CPR service or for which the information is not consistent with our
information on checks that have been presented against the relevant
account. In addition to any other rights we may have under this the
agreement or applicable law, we may immediately suspend your use of
the CPR service.
lockbox service and/or wholesale lockbox service to you in various
formats.
(c) Our EDI account analysis service allows you to send and
receive electronic files to support our account reconciliation, controlled
payment and positive payment services (both issue and paid item files),
our ACH fraud control service (authorization records) and our account
analysis service.
(a) Our integrated payables EDI service allows us to accept
an electronic file from you that is used to initiate entries through our Technical Requirements and Underlying Services. Files we
ACH origination service and/or create paper checks through our receive from you or send to you must be in a format that we have
enterprise payment processing service. We do not create or maintain tested and agreed to and must be sent or received by the
service profiles for this service. deadlines specified for the relevant service that we separately
disclosed to you so that we can perform the necessary edits and
(b) Our EDI reports transmission service allows us to send forward the files for the relevant payment or information purposes.
you a formatted text report or electronic file to report payment and The terms and conditions for each service that is utilized through
payment -related data from our ACH origination service, scannable an EDI file continue to apply.
Enterprise Payment Processing Service
1. Description of the EPP Service. The SunTrust enterprise
payment processing or "EPP" service is a service where, in accordance
with your instructions and servicing guidelines as confirmed by your EPP
service profile, we will print and disburse checks and/or create and
transmit entries to settle through the Automated Clearing House ("ACH")
Network to pay your designated payees. We utilize a system developed
and managed by a vendor in providing the EPP service. As a result, you
agree that each reference to "we," "us" and 'buy" in any provision in the
agreement will, with respect to the EPP service, be deemed to include
our vendor. Details regarding the functionality of the EPP service, file
delivery methodology and certain formatting and other technical
requirements that you must follow when using the EPP service are
provided in the EPP reference materials as we update them from time to
time.
2. Processing of Payments. Once we have completed our
implementation of your setup for the EPP service and you have
confirmed your EPP service profile you may use the EPP service.
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(a) For each payment entry included in a data file rpayment
data') you transmit to us, we will print and disburse a check in U.S.
dollars (or Canadian dollars if so indicated), or create and transmit an
ACH credit entry, as reflected in your EPP service profile. Unless you
specifically instruct us to process the entry as an ACH entry, we will
process the entry as a check. If we have difficulty in establishing an
ACH credit entry for a payment we will default to a check entry if
sufficient information is available. Each payment data file must follow
the formatting, other technical requirements, and file delivery
methodology that we have established with you in our implementation of
your setup for the EPP service, as evidenced by our records, or that we
may otherwise designate in the reference materials from time to time.
You acknowledge that sending entries by ACH will result in different
obligations and liabilities for you with regard to the legal and regulatory
environment for electronic funds transfers as compared to the legal and
regulatory environment for checks.You will be solely responsible for
ensuring each check entry complies with the terns and conditions
governing the account on which the check entry is drawn, whether
maintained with us or any other financial institution.
(b) Each check printed for a payment entry in a payment
data file will be printed in accordance with the format specifications for
each check, which we established with you in our implementation of your
setup for the EPP service, as set forth in the sample check that you have
approved (or will approve during implementation). Each check will be
drawn on the account designated in the payment entry for that check in
your payment data file. You will be solely responsible for ensuring you
have sufficient funds in any account on which a check is drawn to fund
all checks we print and disburse. We will not have any responsibility for
verifying whether there are sufficient funds in an account, whether
maintained with us or any other financial institution, when we print and
disburse any checks. If you designate multiple signers for checks drawn
on a SunTrust account, the multiple signer requirement is for your
internal purposes only and does not impose any obligation, duty, or
liability on us. We will supply all standard check stock and other
materials, which will be billed through your analysis statement. Non-
standard check stock must be approved for use by us and will be
purchased on your behalf and inventory will be managed by us with
appropriate charges included in your analysis statement.
(c) We will disburse printed checks either by first-class mail
or by courier arranged by us or you. If you elect to have printed checks
disbursed by first-class mail, we will deliver checks to the United States
Postal Service, with appropriate postage paid. Any checks we print that
you elect to have delivered to your courier will be available for pickup at
the operation center designated by us, with shipping or delivery paid for
directly by you. You will be responsible for paying the amount charged
by us for postage and courier service arranged by us in connection with
your use of the EPP service, and such charges will be included in your
analysis statement. We may increase the amount charged for postage
and courier services at any time immediately upon an increase in the
cost of postage or courier services.
(d) We conduct the check -printing services provided for
herein in a secure location accessible only to authorized personnel to
whom access is granted in connection with their job responsibilities.
Moreover, we will take reasonable steps to (i) prevent unauthorized use
TREASURY MANAGEMENT
TERMS AND CONDITIONS
of your check stock and signature facsimiles and (ii) preserve the
confidentiality of your payment data once in our possession.
(e) If you elect to have the payment for an entry in your
payment data file made by ACH, you will be the originator of the ACH
entry we create from your payment data file, whether such payment data
is transmitted to us through one of our online services or a designated
website. In order to elect ACH payments as part of the EPP service, we
must have agreed to provide you ACH origination service and you must
have confirmed a service profile for ACH origination service. Each ACH
entry created in accordance with your payment data file will be settled to
one of the settlement accounts designated in your ACH origination
service profile. Except as otherwise provided in these EPP terms and
conditions, the terms and conditions for the ACH origination service will
govern each entry which, in accordance with your payment data file, we
create, format and transmit to settle through ACH, including without
limitation, those relating to exposure limits and delays or suspension of
processing.
(f) Remittance data included with your payment data file
may be printed with the corresponding check or made available at our
designated website or by separate mailing for ACH entries to the payee
at the address provided by you in your payment data file. Remittance
data may be made available to the payee at our designated website
through the online remittance reporting feature of the EPP service as
defined in the reference materials. If you elect to use the online
remittance reporting feature, you must provide the payee's contact and
identification information to us. You are solely responsible for notifying
your payees that the online remittance information will be available and
providing your payees access instructions for the designated website as
provided for in Section 9, Payee Access.
3. Transmission of Payment Data File. You must transmit your
payment data file to us by using one of our online services as defined in
the reference materials. You must transmit your payment data file to us
by the cut-off deadline we have established in your EPP service profile.
Your payment data may not be processed or processing may be delayed
if you submit your payment data file after the cut-off time or on a day
other than as provided in your EPP service profile. If you wish to make a
change to your payment data file (other than adding one or more
payment entries), including changes in formatting or technical
requirements, adding an account, or changing the settlement account for
a payment entry, you must test the changes with us, to our satisfaction,
before transmitting a file of payment data containing the changes.
Failure to test a payment data file that has been changed prior to
submitting the file to us may result in your payment data not processing
or the processing being delayed. In the event we experience difficulties
receiving or accessing your payment data files, the parties shall
cooperate with one another's efforts to access the payment data
promptly. We will maintain a copy of all payment data as provided for in
the reference materials. Each time you submit a payment data file, we
will notify you by email when we receive the file. You must access the
designated website or one of our online services, as more specifically
described in your EPP service profile and verify the control totals, as
more specifically described below and the accuracy of each payment
entry included in your payment data. Once you have verified the control
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4 SvnfhzusT
totals and the accuracy of the payment data, you will release your
payment data files for processing. All payment files will remain
suspended until released by you. You are responsible for payment
entries included in data files that you release for processing, even if the
payment entry is a duplicate of another payment entry or otherwise is
submitted by you in error. We are under no obligation to determine if a
payment data file or any payment entry in a payment data file is a
duplicate of a previously submitted payment data file or payment entry.
You agree that our records of payment data files you release for
processing will be deemed correct and will control in the event of any
dispute regarding a payment data file or payment entry in a data file.
4. Cancellation Instructions. We have no obligation to honor or
process any request to cancel the processing of any of your payment
data, to amend any payment data, to pull from disbursement a check
printed, or cancel any ACH file created, in accordance with your
payment data file and EPP service profile. As an accommodation to you,
however, we will use good faith efforts to honor your request to cancel
the processing of a payment data file or a payment entry in a payment
data file or pull any check printed from disbursement, if your request
complies with the security procedures and we receive the request at a
time and in a manner that gives us a reasonable opportunity to act on it
prior to printing or disbursing any checks or prior to creating or
transmitting any ACH entry. We are not liable if we are unable to honor
your request to cancel the processing of a payment data file or a
payment entry in a payment data file or to pull a printed check prior to
disbursement. You agree to reimburse us for any expenses we may
incur in attempting to honor any such requests.
5. Security Procedures. You agree to comply with the following
security procedures in using the EPP service and agree that these
security procedures are commercially reasonable.
(a) Online Services. For a payment data file that is
transmitted to us through one of our online services you are required to
comply with the security procedure for that online service as defined in
the reference materials. During our implementation of your setup for the
EPP service, you must designate a security administrator for the online
service. The security administrator will have full access rights as more
fully described in the reference materials.
(b) Control Totals. Each time you submit a payment data file,
we will notify you by email when we receive the file. Upon receipt of this
email, you must access our online services, as more specifically
described in your EPP service profile, and verify the number of check
print entries, the number of ACH credit entries, the aggregate dollar
amount of all ACH credit entries and the aggregate dollar amount of all
check entries (the "control totals"). In addition, you must submit a
transmittal form to us indicating the total amount of ACH credit entries in
the payment data file.
(c) Cancellations. Instructions canceling a payment data file
or any payment entry in a payment data file or requesting that any check
created be pulled prior to distribution must be in writing and transmitted
to our EPP staff as indicated in the reference materials. We may verify
or authenticate any of these instructions by any means we believe to be
reasonable in the circumstances, but we are under no obligation to do
TREASURY MANAGEMENT
TERMS AND CONDITIONS
so. We will have no liability for acting on any of these instructions we
believe in good faith to have been given by one of your authorized users.
(d) Payee Access. Before a payee can access our online
remittance reporting feature or vendor enrollment feature, that payee
must register in the designated website, using access instructions
provided by you. Once registered, the payee will choose its own user id
and password.
6. Risk of Delivery. We shall have no responsibility for any
checks once delivered to the United States Postal Service or a courier.
You assume all risks associated with delays caused by complications
arising in the transmission of payment data files and delays in postal
service or courier service, except when such delays are caused by our
failure to provide the checks by the delivery time or to transmit an ACH
entry by the appropriate ACH processing cut off time, provided you
submitted the payment data for such payments to us in a timely manner.
7. Limitation of Liability: indemnity. Notwithstanding anything
herein to the contrary, we shall have no liability with respect to a check
issued or ACH entry transmitted in accordance with the services
described in these EPP terms and conditions, conforming to the
payment data or after the period during which we must maintain the
payment data with respect thereto. In addition to any obligation you
have to indemnify us under the master agreement or the general terms
and conditions, you agree to indemnify and hold us harmless from any
and all claims, expenses, costs, or liabilities arising out of the issuance
of a payment against a payable in dispute or not yet due and payable.
8. Creation of Issue File for Positive Pay. Account Reconciliation.
or Controlled Payment Service. You may elect for the printed check
information included in your payment data file to be used by us to create
a Positive Pay, Account Reconciliation or Controlled Payment issue file
on your behalf to be used in connection with one of those services. If
you make this election, we must have agreed to provide you the
applicable Positive Pay, Account Reconciliation or Controlled Payment
service and you must have confirmed a service profile for the service. By
making this election, you authorize us to create an issue file on your
behalf on each day on which checks are printed against any SunTrust
account that is included in your setup for Positive Pay, Account
Reconciliation or Controlled Payment service. Each issue file and your
use of the Positive Pay, Account Reconciliation or Controlled Payment
service is governed by the terms and conditions for each service,
including without limitation those relating to limits on our liability and
suspending your use of the service.
9. Payee Access. Payees have access to several features of
EPP service through a designated website.
(a) Online Remittance Reporting Feature -before a payee can
access our online remittance reporting feature, that payee must register
in the designated website, in compliance with the security procedures
referenced herein. The payee's access and use of the website shall be
subject to the terms and conditions posted at the website. Through the
website, registered payees may utilize the online remittance reporting
feature to view and download documents and information in connection
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with payments, including remittance data and statements. Documents
and information will be available to the payee through the online
remittance reporting feature for the number of days provided in the EPP
reference materials. Payees will be notified by email when new
documents and information are available online. The payee will be
deemed to have received any email sent by us to the email address
reflected at that time in the payee's registration information in the
designated website. We are not responsible for undelivered emails.
(b) Vendor Enrollment- under the vendor enrollment feature,
a registered payee may provide notice through the website to receive
TREASURY MANAGEMENT
TERMS AND CONDITIONS
a consumer account, as defined in the NACHA Operating Rules. We will
notify you if the payee provides notice through the website to receive
payments by ACH. If you approve such election, you must instruct us to
make such payments by ACH in your payment data file.
(c) EPP Vendor Services -you or your payees may elect to
obtain additional services directly from our EPP vendor, such as, but not
limited to, data download capabilities. SunTrust is not a party to
providing additional services and is not responsible for any obligations or
liabilities that may arise in the course of our vendor providing those
additional services to you or your payees.
payments by ACH rather than by check. This election is for your
information and we have no duty to comply with your payee's election to
receive payments by ACH. This election is not available for payments to
Image Cash Letter Service
1. Description of the ICL Service. The SunTrust Image Cash document must be readable. This will allow you to capture the
Letter or "ICL" service is intended to allow you to transmit to us for information required for the image cash letter. It is not acceptable to
deposit files of electronic images of batches of checks (and associated pass digit errors (represented by an * within a MICR field) on a file
information describing each check) and check total information, each file forwarded to us. All fields on the MICR line of an electronic check
an "image cash letter," in place of forwarding the original checks to us image must be repaired prior to forwarding any files to us. You warrant
for deposit. Details regarding ICUs functionality and certain formatting that any repair of the MICR line fields will be repaired correctly.
and other technical requirements that you must follow when using the
ICL service are provided in the "ICL reference materials" as we update (b) You must transmit each image cash letter to us through
them from time to time. The ICL service is intended for transmission of one of our online services which support the transmission of image cash
your electronic images and associated information in one file, not as letters. To submit an image cash letter to us through an online service,
separate transmissions. The ICL service may also encompass image you are required to comply with the security procedures for that online
quality analysis adjustments, image integrity analysis adjustments, service. Any image cash letter transmitted to us in accordance with
duplicate item or duplicate file adjustments and return item adjustments those security procedures will be deemed an image cash letter of yours,
(all as defined in the ICL reference materials) being sent to you. The whether or not you actually authorized it. Transmission times, image file
ICL service may not be used outside the United States without our prior receipt times, other applicable deadlines and transmission locations are
written approval or to transmit an electronic image of a remotely created set forth in the ICL reference materials and/or your ICL service profiles
check (as that term is defined in Regulation CC). These ICL terms and as they are In effect at the relevant time.
conditions do not otherwise affect any other agreement between you
and us relating to deposits of original checks.
2. Operation of the ICL Service. You may use the ICL service
with respect to the account(s) identified in your ICL service profiles as
they are in effect at the relevant time and that we have included in our
implementation of your setup for the ICL service.
(a) Each electronic check image included in an image cash
letter is an "item" as defined in Article 4, Section 104(a)(9) of the
Uniform Commercial Code as adopted in the state whose laws govern
this agreement and a "check" as defined in Section 229.2(k) of the
Regulation CC, which must be an exact image of the front and back of
the original check with full -field magnetic ink character recognition
(MICR) line encoding (absent the amount). You should endorse the
original check prior to image capture and you must provide an electronic
endorsement record in accordance with the ICL reference materials,
which are based on our interpretation of the relevant American National
Standard Institute (ANSI) standards. Each image cash letter must be
formatted, including the batching of images, as provided in the ICL
reference materials. To be eligible for processing, an electronic check
image must meet the items eligible for exchange requirements as
outlined in the ICL reference materials. At a minimum, the item must be
a negotiable item and all characters in all MICR fields present on the
(c) Each image (and associated information regarding a
check) included in an image cash letter must meet our quality standards
for processing an image for deposit as described in the ICL reference
materials. Those standards are referred to in these ICL terms and
conditions as the "ICL standards." We may add to or change the ICL
standards at any time immediately upon notice to you. Once we receive
your image cash letter, as the bank of first deposit, our systems will
process each image and associated information included in that image
cash letter that are on -us items to determine if all images and
associated information satisfy the ICL standards for qualified image
cash letters. Also, if your imaging process does not produce acceptable
images you will be required to use our unqualified ICL service that
performs image quality analysis and image integrity analysis on all items
in each image cash letter. This may result in requiring an earlier image
file receipt time for your unqualified image cash letter. All image cash
letters are also subject to duplicate item and duplicate file detection. if
an image and associated information satisfy the ICL standards, the ICL
system will accept them. If the ICL system determines an image or
associated information does not satisfy the ICL standards, the ICL
system may reject the nonconforming image or duplicate item, which
shall mean those items are sent back to you for reasons of poor quality,
missing images or duplicate items. A summary debit adjustment will be
made to your account and a debit advice will be sent to you. Also you
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may request that the list of rejected images which failed to meet the ICL
standards or were found to be duplicates be transmitted through one of
our online services to your designated contact identified in your ICL
service profiles as they are in effect at relevant time. In addition, any
image and associated information included in an image cash letter must
satisfy the quality standards of the Federal Reserve Bank or other
collecting bank to which we have forwarded an image and associated
information for collection, the "collecting bank quality standards." All
check images which fail to meet collecting bank quality standards will be
sent to you as a return advice with attached image for each item. There
are no specific timelines for these types of adjustments, but they are
usually completed within 30 business days of deposit. If an image is
rejected for failing to meet the ICL standards or the collecting bank
quality standards, you must take corrective action to either recapture the
image and associated information and submit it in a new image cash
letter or submit the original check for deposit. Once you have
transmitted an image cash letter to us, you may not cancel it unless we
have rejected the file. If more than two percent of the images and
associated information included in an image cash letter fail to meet the
ICL standards, the entire file may be rejected, which will require you to
resubmit that image cash letter.
(d) In using the ICL service, you agree to use formats as
indicated below, which may be amended from time to time.
(i) DSTU X9.37 — 2003 TIFF 6.0 CCITT Group IV black
and white (Images attached) Paper will be truncated at your location
(ii) Image— Same as above
(Ili) Companion Document for exchange — Federal
Reserve Bank Adoption of DSTU X9.37 (2003) Image Cash Letter
Customer Documentation (Excluding portions referring to Fed specific
details)
All files must be sent to us through our Online File Transfer service.
You must send a notification to the designated e-mail address as
identified in the ICL reference materials, which must include your name,
image cash letter file total dollar amount and image cash letter file total
item count. Federal Reserve Bank's Image Quality Assurance (IQA)
Settings should be adhered to at minimum. This includes the
parameters of images relative to length, height, comers, document
skew, darkness/lightness, noise and image size compression. These
image quality standards are provided in the reference materials.
Authentication will be conducted through the Online File Transfer log in
process utilizing security procedures and authorization codes. Image
Quality Adjustment Detail reporting will be facilitated through the use of
our Online Courier service if you elect to use that service.
(e) Once we have accepted an image cash letter for deposit,
we will use each image and associated information included in that
deposit to process it as an electronic item or, at our option; to create a
substitute check. If we elect to process an image and associated
information as an electronic item, we will process that image for deposit
to your account and forward it for presentment to the drawee bank (as
defined below) through the electronic item collection channels that we
would otherwise use to present an electronic item to the drawee bank.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
If we use an image and associated information to create a substitute
check, we will process that substitute check for deposit to your account
and forward it for presentment to the financial institution on which the
original check was drawn or through or at which it was payable (that
institution is referred to in these ICL terms and conditions as the
"drawee bank") through the check collection channels that we would
otherwise use to present a check to the drawee bank In either event,
your deposit will be subject to the terms of any agreement we have with
other financial institutions relating to the presentation of electronic items.
We will make funds for each electronic item or substitute check that we
process for deposit to your account available to you under the enhanced
schedule that applies to your account on the business day that we
received the file containing a conforming image of that check.
(f) We must receive your image cash letter by the image file
receipt times set forth in the ICL reference materials. In that regard, we
are not liable for any delays or errors in transmission of an image cash
letter. If the online service you use to transmit your image cash letter is
not available, you must make your deposits by another method, such as
delivery to us of appropriate CD-ROM(s) containing the image cash
letter or delivery of the original checks to us. You may not transmit to us
an image cash letter which exceeds 20,000 items per file if you are
using the unqualified ICL service or 40,000 items per file if you are using
the qualified ICL service. You may send more than one image cash
letter each day prior to your image file receipt time.
(g) You agree to make original checks available to us
promptly upon our reasonable request. You agree that you will not
capture more than one image of (or associated information regarding)
any original check and that you will not negotiate, deposit or otherwise
transfer any original check to us or to any other person or entity after
you have captured an image of (or associated information regarding) it.
You also agree that (i) you will not transmit an image of (or associated
information regarding) any original check to us more than once (unless
that item has been returned to you by us for corrective action), (ii) you
will not transmit an image of (or associated information regarding) any
original check to us that you previously transmitted to any other person
or entity, (iii) you will not transmit an image of (or associated information
regarding) any original check to any other person or entity after you
have transmitted it to us; (iv) you will not transmit an image of (or
associated information regarding) any original check to us if that check
has been used as a source document for the initiation of an ACH or
other electronic debit, and (v) you will not use any original check as a
source document for the initiation of an ACH or other electronic debit
after you have transmitted an image of (or associated information
regarding) that check to us. You agree to use commercially reasonable
security procedures to safeguard the original checks, images and
associated information in your possession.
(h) If there is any discrepancy between check image count
and/or the total dollar amount of the deposit reflected by you in an
image cash letter and our count of check images and/or the total dollar
amount of images included in the image cash letter, our count will
control and the image cash letter may be rejected. We will also debit
your account and send you a deposit adjustment notice for any image
which was rejected by us for failing the ICL standards, was determined
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to be a duplicate, or rejected for failing the collecting bank quality
standards, or returned by any collecting bank for any reason.
(i) We may reject, impose a special fee and/or delay
processing of any image cash letter if (I) the image cash letter was not
prepared and formatted in accordance with the requirements set forth in
the ICL reference materials, (ii) the number of check images in the
image cash letter or the total dollar amount of the image cash letter
does not match what is Included in the Cash Letter Control Record for
your image cash letter, and (iii) the number of check images in an image
cash letter file transmitted to us exceed the number permitted under
these ICL terms and conditions.
Q) Returns will be handled by printing substitute checks and
returning them through existing return channels.
3. Your Representations and Warranties. You make all of the
representations and warranties to us with respect to each electronic
check image and associated information that you transmit to us that you
would have made N you had deposited the original check into your
account. In addition, you represent and warrant to us with respect to
each image of and associated information that you transmit to us that
(a) the image and associated information (i) accurately represent all of
the information on the front and back of the original check at the time
the image and associated information were captured and (ii) are
otherwise sufficient for us to satisfy our obligations as the truncating
and/or reconverting bank and (b) no person or entity will receive a
Image Cash Letter Service — Financial Institutions
1. Description of the ICL-FI Service. The SunTrust Image Cash
Letter service for financial institutions or "ICL-FI" is intended to allow you
to transmit to us for deposit files of electronic images of batches of
checks (and associated information describing each check referred to
as "presentment notice") and check total information, each file an
"Image cash letter," in place of forwarding the original pre -encoded
check deposits to us for deposit. Details regarding ICL-FI's functionality
and certain formatting and other technical requirements that you must
follow when using the ICL-FI service are provided in the ECCHO Rules,
Section XIX and in the "ICL-FI reference materials" as we update them
from time to time. By using this service, you agree to be bound by the
Electronic Check Clearing House Organization Operating Rules referred
to as "ECCHO Rules" for these electronic image transactions and we
will sponsor your membership if you are not currently a member of
ECCHO. Unless otherwise agreed upon, you will be charged for the
ECCHO sponsorship fees. Unless otherwise indicated, terms used in
these ICL-FI terms and conditions shall have the meanings ascribed to
such terms in the ECCHO Rules. The ICL-FI service is intended for
transmission of your presentment notice and electronic images in one
file, not as separate transmissions. The ICL-FI service also
encompasses image quality analysis adjustments and return items
processing sent to you. The ICL-FI service may not be used outside the
United States without our prior written approval or to transmit an
electronic image of a remotely created check (as that term is defined in
Regulation CC). These ICL-FI terms and conditions do not otherwise
affect any other agreement between you and us relating to exchanges
under the ECCHO Rules or deposits of original checks.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
transfer, presentment or return of, or otherwise be charged for, @ the
original check, (ii) an electronic item or substitute check that we create
from the image and associated information, or (ill) a paper or electronic
representation of the original check or of a substitute check that we
create from the image and associated information, such that the person
or entity will be asked to make a payment based on a check that it has
already paid.
4. Your Indemnification Obligations. In addition to any other
obligation you have to indemnify us, you agree to defend, indemnify,
protect and hold us, our affiliates and our respective officers, directors,
employees, attorneys, agents and representatives harmless from and
against any and all liabilities, claims, damages, losses, demands, fines
(including those imposed by any Federal Reserve Bank, clearing house
or funds transfer system), judgments, disputes, costs, charges and
expenses (including litigation expenses, other costs of investigation or
defense and reasonable attorneys' fees) which relate in any way to
(a) the receipt by any person or entity of (i) an electronic item, (ii) a
substitute check or (iii) a paper or electronic representation of the
original check or the substitute check that we create from a electronic
check image and associated information that you transmit to us, instead
of the original check, or (b) any encoding error on any check included in
an image cash letter, or (c) any duplicate item or duplicate file created or
authorized by you, or (d) the delayed processing of any returned items
by any subsequent bank for any items that were processed as electronic
items, or (e) a remotely created check being included in an image cash
letter.
2. Operation of the ICL-FI Service. You may use the ICL-FI
Service with respect to the account(s) that are identified in your ICL-FI
service profiles as they are in effect at the relevant time and that we
have included in our implementation of your setup for the ICL-FI service.
(a) Each electronic check image included in an image cash
letter is an "item" under the Uniform Commercial Code, a "check " under
Regulation CC and an "item" under ECCHO Rules which must be an
exact image of the front and back of the original check with full MICR
line information. You must endorse the original check or the electronic
check image with the bank of first deposit endorsement in accordance
with the ANSI endorsement requirements, ECCHO Rules and ICL-FI
reference materials. Each image cash letter must be formatted,
including the batching of images, as provided in the ECCHO Rules and
the ICL-FI reference materials. To be eligible for processing, an
electronic check image must meet the items eligible for exchange
requirements as outlined in the ECCHO Rules, Section III (A). The
ECCHO Rules require, at a minimum, that the item be a negotiable item,
and all characters in all MICR fields present on the document must be
readable. This will allow you to capture the information required for the
image cash letter. Repair of the MICR line on documents in order to
make the items eligible for processing must be done with responsibilities
assigned as outlined in ECCHO Rules, Section III(B). It is not
acceptable to pass digit errors (represented by an * within a MICR field)
on a file forwarded to us. All fields on the document must be repaired
prior to forwarding any files. Repair of the MICR line fields will be
governed by ECCHO Rules.
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(b) You must transmit each image cash letter to us through
one of our online services which support the transmission of image cash
letters. To submit an image cash letter to us through an online service,
you are required to comply with the security procedures for that online
service. Any image cash letter transmitted to us in accordance with
those security procedures will be deemed an image cash letter of yours,
whether or not you actually authorized it. Transmission times, Image
Ledger Cutoff times, other applicable deadlines and transmission
locations are set forth in the ICL-FI reference materials andlor your ICL-
FI service profiles as they are in effect at the relevant time.
(c) Each image of (and associated information regarding a
check) included in an image cash letter must meet our quality standards
for processing an image for deposit as described in the ECCHO Rules
and the ICL-FI reference materials. Those standards are referred to in
these ICL-FI terms and conditions as the "ICL-FI standards." We may
add to or change the ICL-FI standards at any time immediately upon
notice to you. Once we receive your image cash letter, our systems will
process each image and associated information included in that image
cash letter that are on -us items to determine if that image and
associated information satisfy the ICL-FI standards. If an image and
associated information satisfy the ICL-FI standards, the ICL-FI system
will accept them. If the ICL-FI system determines an image or
associated information does not satisfy the ICL-FI standards, the ICL-FI
system may reject the nonconforming image, which shall mean those
items are sent back to you for reasons of poor quality or missing
images. Each day we will fax to your contact that you have designated
(in a form acceptable to us) the list of rejected images which failed to
meet the ICL-FI standards and this will be followed by a research and
adjustment debit advice. In addition any image and associated
information included in an image cash letter must satisfy the quality
standards of the Federal Reserve Bank or other collecting bank to which
we have forwarded an image and associated information for collection,
the "collecting bank standards." All check images which fail to meet
Federal Reserve Bank quality standards will be returned as an advice
with attached image for each item via U.S. Mail. All check images which
fail to meet collecting bank quality standards will result in items coming
back in Return Item processing. If an image is rejected for failing to
meet the ICL-FI standards or the collecting bank standards, you must
either recapture the image and associated information and submit it in a
new image cash letter or submit the original check for deposit. Once
you have transmitted an image cash letter to us, you may not cancel it.
(d) Once we have received an image cash letter for deposit,
we will use each image and associated information included in that
deposit to create a substitute check or, at our option; process it as an
electronic item. If we use an image and associated information to
create a substitute check, we will process that substitute check for
deposit to your account and forward it for presentment to the financial
institution on which the original check was drawn or through or at which
it was payable (that institution is referred to in these ICL-FI terms and
conditions as the "drawee bank") through the check collection channels
that we would otherwise use to present a check to the drawee bank. If
we elect to process an image and associated information as an
electronic item, we will process that image for deposit to your account
and forward it for presentment to the paying bank through the electronic
item collection channels that we would otherwise use to present an
TREASURY MANAGEMENT
TERMS AND CONDITIONS
electronic item to the paying bank. In either event, your deposit will be
subject to the terms of any agreement we have with other financial
institutions relating to the presentation of electronic items. We will make
funds for each substitute check or electronic item that we process for
deposit to your account available to you under the same schedule that
would have applied if you had deposited the original check to your
account on the business day that we received the file containing a
conforming image of that check.
(a) We must receive your image cash letter by the then -
current deadline set forth in the ICL-FI reference materials. In that
regard, we are not liable for any delays or errors in transmission of an
image cash letter. If the online service you use to transmit your image
cash letter is not available, you must make your deposits by another
method, such as delivery of the original checks to us. You may not
transmit to us an image cash letter which exceeds 20,000 items per file
If you are using the unqualified ICL service or 40,000 items per file if you
are using the qualified ICL service. You may send more than one image
cash letter each day prior to your image file receipt time.
(f) You agree to make original checks available to us
promptly upon our reasonable request. You agree that you will not
capture, nor will you allow any of your customers to capture, more than
one image of (or associated information regarding) any original check
and that you will not negotiate, deposit or otherwise transfer, or allow
any of your customers to negotiate, deposit or transfer, any original
check to us or to any other person or entity after you have or that
customer has captured an image of (or associated information
regarding) it. You also agree that (1) you will not transmit an image of
(or associated information regarding) any original check to us more than
once, (ii) you will not transmit an image of (or associated information
regarding) any original check to us that you or one of your customers
has previously transmitted to any other person or entity, (iii) neither you
nor any of your customers will transmit an image of (or associated
information regarding) any original check to any other person or entity
after you have transmitted it to us; Ov) you will not transmit an image of
(or associated information regarding) any original check to us if that
check has been used as a source document for the initiation of an ACH
or other electronic debit; and (v) neither you nor any of your customers
will use any original check as a source document for the initiation of an
ACH or other electronic debit after you have transmitted an image of (or
associated information regarding) that check to us. You agree to use
and cause your customers to use commercially reasonable security
procedures to safeguard the original checks, images and associated
information.
(g) If there is any discrepancy between check image count
and/or the total dollar amounts of the deposit reflected by you in an
image cash letter and our count of check images and/or the total dollar
amount of images included in the image cash letter, our count will
control and the image cash letter will be rejected. We will also debit
your account and send you a deposit adjustment notice for any image
which was rejected by us for failing the ICL-FI standards or rejected for
failing the Federal Reserve Bank quality standards or returned by any
collecting bank for failing its collecting bank standards.
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(h) We may reject, impose a special fee and/or delay
processing of any image cash letter if (1) the image cash letter was not
prepared and formatted in accordance with the requirements set forth in
the ECCHO Rules and ICL-FI reference materials, (ii) the number of
checks images or batches of check images in the image cash letter, the
dollar amount of a batch of check images in an image cash letter or the
total dollar amount of the image cash letter does not match what is
included in the presentment notice for that Image cash letter, and (III) the
number of check images in all image cash letter files transmitted to us
on any banking day, exceed the number permitted under these ICL-FI
terms and conditions.
(I) Returns will be handled by printing substitute check
documents and returning them through existing paper return channels.
As a financial institution you act as the bank of first deposit (BOFD) on
all items you deposit with us. This will require you to place a BOFD
endorsement on all physical items deposited and/or a 26 record
containing the BOFD record on all image cash letter items deposited
with us. This endorsement must be in compliance with Regulation CC
regarding content and placement, ANSI x9.37 standard, and as
provided in ECCHO Rules Section XIX (E).
G) As the BOFD, you are expected to be the primary agent
of resolution of all research items. As the BOFD, your organization has
total access to the clearing cycle of each item deposited with us. As
your clearing agent, we do not have access to all of the returns
information and as such we are less able to resolve all research items.
You may re -deposit indemnified copies of previously missing items with
us at any time through any depository channel
Image Delivery Services
1. Description of the Image Delivery Services. The image file
transmission feature for Image Delivery Services includes the delivery of
imaged items such as paid items, returned items, deposit tickets and
deposited items through the Online File Transfer service. The images of
the various items, as well as images or text files of account statements,
selected by you are downloaded and transmitted on a variety of time
frames. The CD-ROM feature for Image Delivery Services includes the
delivery of imaged items such as paid items, returned items, deposit
tickets and deposited items with an encrypted CD-ROM delivery
process available on a variable basis. The various items selected by you
will be imaged, MICR corrected, balanced, and posted before delivery.
If any deposited items are out of balance for an account (total of
deposited items does not match deposit ticket), then those deposited
items will not be included in any of the Image Delivery Services. You
may also select certain one-time historical CD-ROM services for any of
the imaged items, such as a one month CD-ROM, a twelve month CD-
ROM or a seven year archive CD-ROM.
2. Selection of Image Delivery Services. You may select either
image file transmission or CD-ROM delivery method for the various
items selected by you with respect to the accounts that you have or may
in the future identify to us and that we have agreed to include in your
setup for the Image Delivery Services. Your selection for each account
is reflected in your Image Delivery service profiles, which may be
grouped under a lead account for all accounts capturing the same types
of images using the same delivery method. Details regarding these
TREASURY MANAGEMENT
TERMS AND CONDITIONS
3. Your Representations and Warranties. You make all of the
representations and warranties to us with respect to each electronic
check image and associated information that you transmit to us that you
would have made if you had deposited the original check into your
account. You further agree to the Sending Bank Warranties and
Indemnification as provided in ECCHO Rules Section XIX (M).
4. Your Indemnification Obligations. In addition to any other
obligation you have to indemnify us, you agree to defend, indemnify,
protect and hold us, our affiliates and our respective officers, directors,
employees, attorneys, agents and representatives harmless from and
against any and all liabilities, claims, damages, losses, demands, fines
(including those imposed by any Federal Reserve Bank, clearing house
or funds transfer system), judgments, disputes, costs, charges and
expenses (including litigation expenses, other costs of investigation or
defense and reasonable attorneys' fees) which relate in any way to
(a) the receipt by any person or entity of (i) an electronic item, (ii) a
substitute check or (III) a paper or electronic representation of the
original check or the substitute check that we create from a electronic
check image and associated information that you transmit to us, instead
of the original check, or (b) any encoding error on any check included in
an image cash letter, or (c) the delayed processing of any returned
items by any subsequent bank for any items that were processed as
electronic items, or (d) a remotely created check being included in an
image cash letter.
Image Delivery Services, their functionality and certain requirements
that you must follow when using the Image Delivery Services are
provided in the Image Delivery reference materials as they are updated
from time to time.
(a) Image file transmission —after online delivery, you have
access to your imaged items along with indexed fields of information
that can be downloaded directly into your image archiving systems.
Image file transmissions are encrypted and are transmitted using File
Transfer Protocol (FTP). You must designate a contact responsible for
receiving or retrieving your image file transmissions. You will retrieve
your image file transmissions after setup on Online File Transfer service
by using the unique user ID and password assigned to your company. If
you elect for us to "push" your image file transmissions to you, you can
provide us the information needed to access your computer system to
deliver the files. We will send the URL address and the user ID and
password to the person you designate as your contact.
(b) CD-ROM - after delivery by express mail, you have
access to your imaged items along with indexed fields of information to
facilitate research and for long term archival purposes. CD-ROM images
can be retained on the CD-ROM or downloaded onto your computer.
You must designate a security administrator responsible for accepting
the software used to access the CD-ROM images. The CD-ROM will be
encrypted to protect your data during transit. We will assign encryption
codes that your security administrator will use to de -encrypt and access
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the CD-ROM. Before you may use the CD-ROM Image Delivery
Service, you must have or obtain a computer and related software
materials necessary to access electronic images of (and associated
information regarding) checks that are imaged on the CD-ROM. As part
of providing the CD-ROM Image Delivery Service, our vendor will
sublicense the software and related materials to you that you need to
access electronic images of (and associated information regarding)
checks. The software and related materials are referred to as the
"software materials". You must download the software materials and
install them on a computer that you will use in connection with the
Image Delivery Services.
(c) Security Procedures -you agree that the security
procedures noted above for the Image Delivery Services you select are
commercially reasonable. You are completely responsible for
controlling access to and maintaining the confidentiality of the security
procedures, authorization codes and encryption codes and you must
Online Bill Consolidator Service
1. Description of the OBC Service. The Online Bill Consolidator
or "OBC" service enables you to receive remittance information
regarding payments sent to you through the online bill payment service
of any third -party online payment processor (each, an "online payment
processor") that participates in the OBC service. You may use the OBC
service with respect to the accounts identified in your OBC service
profiles and the online payment processors that are identified in our
records, as those profiles and records are in effect at the relevant time,
and that we have included in our implementation of your setup for the
OBC service. Details regarding the OBC service's functionality and
requirements that you must follow when using the OBC service are
provided in the OBC reference materials, as we update them from time
to time.
2. Enrolling as a Biller.
(a) You authorize us to enroll you as a biller for which
remittance information should be provided to us in each online bill
payment service identified in our records as they are in effect at the
relevant time using the information you give us in connection with our
implementation of your OBC setup. That information is referred to in
these OBC terms and conditions as your "biller profile." You must
ensure that all information you give (or a third party on your behalf
gives) us or an online payment processor to enroll you as a biller or
otherwise for use in the online bill payment service of an online payment
processor is complete and accurate at all times and in all respects. If
you learn or have reason to believe that any such information is or may
not be complete and accurate in all respects, then you must notify us as
soon as reasonably practical and take such operational and other steps
as we or the applicable online payment processor reasonably require to
correct the information and appropriately adjust any sums remitted in
response to our reliance on the incomplete or inaccurate information.
(b) You represent and warrant to us that you do not owe any
outstanding amounts to an online payment processor and that you are
not currently using (and, so long as we are providing the OBC service to
you, will not use) the services of any other financial institution to enroll in
TREASURY MANAGEMENT
TERMS AND CONDITIONS
promptly report any breach of that confidentiality to us. You are also
completely responsible for the actions of your users to whom we or your
security administrator or your contact provide authorization codes or
encryption codes and any other person who has obtained access to
your authorization codes or encryption codes. You represent and
warrant that you will maintain commercially reasonable security
procedures to prevent unauthorized access to or any misuse of the
imaged items or misuse of the information contained in the imaged
items once you have received image file transmissions or CD-ROMs.
3. Imaged Items. You agree that we will have no liability for
any missing image or if any image we capture is not legible. Our
responsibility for missing or illegible images is to use reasonable efforts
to provide a replacement image.
or otherwise obtain access to the online bill payment service of an
online payment processor.
(c) You agree to complete, sign and give us or the
applicable online payment processor all forms required to receive
payments and remittance information for payments processed through
an online payment processor's online bill payment service, including an
ACH debit authorization form.
3. Remittance Files; Settlement; Reconcilement; Posting.
(a) Once you have been enrolled as a biller in an online
payment processor's online bill payment service and we have
completed our implementation of your setup for the OBC service, that
online payment processor will send us remittance information regarding
payments sent to you through that online payment processor's online bill
payment service. After we receive that remittance information from an
online payment processor, we will reformat it in accordance with the file
formatting requirements we have agreed to with you and create a file of
such reformatted remittance information (each, a "remittance file").
Unless an earlier deadline for an online payment processor's online bill
payment service is provided in the OBC reference materials or any
guides, rules or other documentation (collectively, the "online payment
processor's documentation") governing participation in such online
payment processor's online bill payment service as it is in effect at the
relevant time, we will send each remittance file to you no later than the
first banking day after the day we receive the relevant remittance
information from an online payment processor. You may designate (in a
form acceptable to us) whether we send your remittance files by (1)
appending them to your file of items processed in your wholesale or
scannable lockbox service setup, if you use either of those services, or
(2) as a separate transmission. You may elect (in a form acceptable to
us) to have remittance information from multiple online payment
processors included as separate batches in one file. You are solely
responsible for maintaining copies of all remittance files that we send or
otherwise make available to you.
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(b) Each online payment processor will be solely responsible
for settling all payments sent to you through that online payment
processor's online bill payment service and that are reflected in each
remittance file. The applicable online payment processor will do so by
sending one or more ACH credit entries to the account (each a
"settlement account") included in our implementation of your OBC setup
that is identified as the settlement account for that online payment
processor in our records as they are in effect at the relevant time. Each
settlement for a payment credited to a settlement account is provisional
until the online payment processor receives final settlement from the
originator of that payment. All payments credited to a settlement
account, or otherwise owed to you, for payments sent to you through an
online payment processor's online bill payment service are subject to
any rights that online payment processor may have to unwind
transactions and exercise setoff under that online payment processor's
documentation.
(c) You are solely responsible for reconciling the remittance
information in each remittance file to the ACH credits you receive from
each online payment processor. If you are unable to reconcile the two,
you must notify us of the inconsistencies by the end of our banking day
on the day you receive the ACH credit. If you have notified us in the
time required, we will use good faith efforts to resolve any such
inconsistencies with the applicable online payment processor.
(d) You are solely responsible for posting each payment
reflected in a remittance file to the correct customer account in your
receivables system. Unless an earlier time for posting for an online
payment processor's online bill payment service is provided in the OBC
reference materials or that online payment processor's documentation,
you must electronically post each payment reflected in a remittance file
to your receivables system so that such payment is posted to the correct
customer account before your posting cut-off time on the calendar day
immediately following the date we received the remittance information
included in that remittance file from an online payment processor, as
reflected by the date in the file header information (the "file header
date"). If the immediately following calendar day is a holiday or
weekend day, you must post the payment on the immediately following
business day, and you must also backdate the time the payment is
shown to have been posted in your receivables system so that it reflects
it was posted before your payment posting cut-off time on the calendar
day immediately following the file header date.
4. Returns: Refusals: Reversals.
(a) If you are unable to determine from a remittance file the
correct customer account to which a payment should be posted, then
(unless a shorter period for an online payment processor's online bill
payment service is provided in the OBC reference materials or that
online payment processor's documentation) you must complete your
research of the payment and post it to the correct customer account
within two banking days from the file header date of that remittance file.
You may not post the payment to a general ledger suspense account or
otherwise hold the payment beyond that period while you continue to
research the payment. If you have been unable to determine the correct
TREASURY MANAGEMENT
TERMS AND CONDITIONS
customer account and post the payment within that period, then (unless
a shorter period for an online payment processors online till payment
service is provided in the OBC reference materials or that online
payment processor's documentation) you must request (in a form
acceptable to us) that we return the payment and we must receive that
request no later than 5:00 p.m. ET (the "returns deadline) on the
second banking day after the file header date of that remittance file and,
if required by the applicable online payment processor, notify the
applicable online payment processor directly by the time specified in
such online payment processor's documentation. If a remittance file
contains incorrect information, but you are able to post the payment,
then (unless a shorter period for an online payment processor's online
bill payment service is provided in the OBC reference materials or that
online payment processor's documentation) you must give us a notice
(in a form acceptable to us) that describes what was incorrect in the
remittance information no later than the returns deadline on the day that
is two banking days after the file header date of that remittance file and,
if required by the applicable online payment processor, notify the
applicable online payment processor directly by the time specified in
such online payment processor's documentation.
(b) You may not refuse to accept a payment that one of your
customers sends you through an online payment processor's online bill
payment service unless (1) the customer account data for that payment
is incorrect or incomplete or Oi) you have elected not to accept any
payments from that customer. If you are not willing to accept any
payments from a customer, then (unless a shorter period for an online
payment processor's online bill payment service is provided in the OBC
reference materials or that online payment processor's documentation)
you must request (in a form acceptable to us) that we return the
payment no later than the returns deadline on the day that is two
banking days after the file header date of the remittance file containing
that payment information.
(c) Some online payment processors offer a "guaranteed
payment" option as described in the OBC reference materials. If an
online payment processor does not offer such an option or your biller
profile does not require guaranteed payments from an online payment
processor that offers such an option, originators can initiate reversals of
payments previously made to you through that online payment
processor's online bill payment service, and that online payment
processor will send an ACH debit entry to your settlement account (or
such other account as you may have designated to that online payment
processor) for such reversals. We will not have any responsibility for
any reversals processed through an online payment processor's online
bill payment service or debits by an online payment processor to one of
your accounts to reverse a payment. If you want us to attempt to return
an erroneous reversal entry, then (unless a shorter period for an online
payment processor's online bill payment service is provided in the OBC
reference materials or that online payment processor's documentation)
you must request On a form acceptable to us) that we return the reversal
entry no later than the returns deadline on the day that is one banking
day after the settlement date of the reversal entry. We will use good
faith efforts to honor your request to return a reversal entry, but will have
no liability if we cannot effect the return or your return request is not
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honored by the applicable online payment processor. You agree to
reimburse us for any expenses we may incur in attempting to honor your
return request.
(d) In addition to any other rights we may have to act on
instructions we believe in good faith to have been given by a person you
have authorized, we may act upon any request or notice we receive
pursuant to this Section 4 that we believe in good faith to have been
given by one of your authorized users.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
without limitations, attorneys' fees) arising from or related to (i) any
amounts or other obligations we owe an online payment processor that
are related in any way to your use of that online payment processor's
online bill payment service, (I!) faulty or erroneous information or
instructions you give us or an online payment processor, (III) any of your
errors or delays in posting a payment to your accounts receivable
system, (iv) any breach of any of your other obligations under these
OBC terms and conditions, or (v) any of your acts or omissions which
result in a breach by you or us of the terms of any online payment
processor's documentation.
5. Limitation of Liability: Disclaimer. Indemnity. In addition to any
other limits on our liability under the agreement and to the extent 6. Online Payment Processor Documentation. Your use of the
permitted by applicable law, you agree that we will not have any liability OBC service is subject to the terms of each online payment processor's
for any acts or omissions of an online payment processor (including, documentation. You agree to take all actions we deem necessary for
without limitation, (a) any error or delay in processing any payments or both you and us to be in compliance with each online payment
remittance information through that online payment processor's online processor's documentation. You agree that we are not obligated to take
bill payment service (including, without limitation, any error or delay in any action under these OBC terms and conditions that would cause us
initiating any funds transfers to you), (b) any breach of confidentiality of to breach the provisions of any online payment processor's
any information (including, without limitation, any of your or your documentation. You agree that none of our obligations under any online
customers' payment, account or personal information), (c) the payment processor's documentation create obligations for us under
inaccuracy of any remittance information, or (d) any reversals or other these OBC terms and conditions unless expressly set forth as our
debits initiated against your account). Neither we nor any online obligations in these OBC terms and conditions.
payment processor makes any representations or warranties of
any kind with respect to that online payment processor's online bill 7. Termination. You or we may terminate your use of the OBC
payment service or the OBC service, Including any implied service immediately upon written notice to the other party, provided that
warranties of merchantability or fitness for a particular purpose. In any termination by you will not be effective until we have had a
addition to any other indemnity obligation you have under the reasonable time to act on your notice.
agreement and to the extent permitted by applicable law, you agree to
defend, protect, indemnify and hold us harmless from and against any
claims, liabilities, losses, damages, costs and expenses (including,
Online Bill Presentment and Payment Service
1. Description of the Online Bill Presentment and Payment
Service. The Online Bill Presentment and Payment or "OBPP" service
enables you to electronically collect bill payments from your customers
(each, a "payer") by initiating ACH debit entries against their deposit
accounts or by initiating charges against their credit or debit cards.
These ACH debit entries and credit or debit card charges (which are
generically referred to in these OBPP terms and conditions as
"payments") are initiated in response to payment authorizations payers
submit through the Internet or give your authorized users over the
telephone. The OBPP service is one of the online services described in
the general terms and conditions. Details regarding OBPP's
functionality and certain requirements that you must follow when using
the OBPP service are provided in the OBPP reference materials as we
update them from time to time. When first launched, the OBPP service
will only provide the ACH functionality described in these OBPP terms
and conditions. We will notify you when the card functionality is
available.
2. Functioning of the OBPP Service. Each payment
authorization that you or a payer submits through the OBPP service will
initiate a payment in accordance with these OBPP terms and conditions.
You will be the "originator" and we will act as the originating depository
financial institution or "ODFI" for each ACH debit entry initiated through
your setup of the OBPP service. Similarly, you will be the "merchant for
each credit or debit card charge initiated through your setup of the
OBPP service. However, we do not act as the merchant bank
processor or "acquirer" with respect to those credit or debit card
charges. Instead, the OBPP service merely routes information for those
credit or debit card charges to your third -party merchant bank
processor, which will act as the acquirer for those credit or debit card
charges. In order to initiate credit or debit card charges through the
OBPP service you must have entered into a merchant services
agreement with a third -party merchant bank processor that is
acceptable to us and with whom we have entered into an agreement
regarding certain issues relating to your use of the OBPP service. A list
of acceptable merchant bank processors with whom we have such
agreements is set forth in the OBPP reference materials as we update
them from time to time. We need you to work with us and to provide us
with certain information to implement your setup for the OBPP service.
You agree to give us all of this information in a form that is acceptable to
US.
3. Origination and Processing of Payments.
(a) Payment authorizations may be submitted through the
OBPP service by (i) a payer through an Internet website (the "biller
website") we provide or (ii) an authorized user through the biller website
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based on a verbal authorization a payer gives an authorized user over
the telephone. The biller website is part of the "OBPP system" we use
to provide the OBPP service to you. You must provide and maintain a
secure link to the biller website on your general website and are
responsible for ensuring that this link takes a payer to the appropriate
area within the biller website. You are also responsible for providing
data concerning each payer that uses this link in a manner that meets
our encryption or security requirements during the linking process.
(b) Before a payer may submit a payment authorization
through the OBPP service, that payer must be registered in the OBPP
system. A payer may self -register through the biller website or an
authorized user may register a payer through the biller website based
on information that payer gives an authorized user over the telephone.
The registration process must include a commercially reasonable fraud
detection system and commercially reasonable procedures to verify the
identity of the payer. At your option (as reflected in your OBPP service
profile), payers may be allowed to give payment authorizations
immediately following the registration process or may be prohibited from
giving payment authorizations until you have authorized them to do so.
(c) The biller website will be formatted in accordance with
the specifications that you give us in connection with our implementation
of your setup for the OBPP service. You grant us the right and a license
to use (I) your name, trademarks, service marks, copyrights and logos
and other textual information in connection with the tiller website and (ii)
your data in connection with the OBPP service, in each case as
contemplated by these OBPP terms and conditions. Once a payer has
accessed the biller website, that payer may authorize you to initiate a
payment against the payer's deposit account or credit or debit cans on
the day that the authorization is submitted, each a "current payment," or
to initiate one or more payments on scheduled future dates, each a
"scheduled payment." Before a payer may submit a payment
authorization through the tiller website, that payer must accept, while
online, terms regarding use of the biller website that, among other
things, authorize you to initiate one or more payments against that
payer's deposit account or credit or debit card, as applicable, and permit
you and us to use the data provided by the payer to process those
payments (including, without limitation, consent for that data to be sent
outside of the United States). These terms of use must also comply
with (I) in the case of an ACH debit entry, the NACHA operating rules
and guidelines as they are in effect at the relevant time, or the "ACH
rules" or (ii) in the case of a credit or debit cans charge, the operating
regulations and other requirements of the entity or association that
issues or sponsors the applicable credit or debit card as they are in
effect at the relevant time, or the "cans rules". We may provide you
sample terms of use. Through the biller website, a payer may view
scheduled payments set up in, and prior payments made through, the
OBPP system and (prior to the deadline for submitting payment
authorizations set forth in the OBPP reference materials as they are in
effect at the relevant time) may also delete or modify scheduled
payments set up in the OBPP system.
(d) An authorized user may also use the biller website to
initiate payments against a payer's deposit account or credit or debit
card based on a verbal authorization that payer gives an authorized
TREASURY MANAGEMENT
TERMS AND CONDITIONS
user over the telephone, but only if (1) the payer initiated the telephone
call or (2) you have an existing business relationship with the payer as
more fully described in the OBPP reference materials as they are in
effect at the relevant time. An authorized user must provide the
information specified in the OBPP reference materials as they are in
effect at the relevant time to the payer and obtain the payer's
unambiguous verbal authorization prior to initiating a payment through
the biller website. After an authorized user has initiated a payment
through the biller website, the OBPP system will automatically send the
payer a notice confirming that verbal authorization to the payee's email
address as then reflected in the OBPP system. This confirmation notice
must comply with the ACH rules or the card rules, as applicable.
(e) Each ACH debit entry initiated through the OBPP service
will be originated using a WEB, TEL or CCD entry code. The OBPP
system will assign an entry code based on information provided by the
payer or an authorized user when initiating the payment.
(f) A charge to a payer's credit or debit card initiated through
the OBPP service will be processed and charged against that card on
the "payment date" of the relevant payment authorization. On the other
hand, an ACH debit entry to a payer's deposit account initiated through
the OBPP service will not be processed and debited against that
account until the business day following the "payment date" of the
relevant payment authorization. For each current payment, the payment
date will be the date that the relevant payment authorization is
submitted through the OBPP system. For each scheduled payment, the
"payment date" will be the future date assigned by the payer for that
payment. If a payment authorization is submitted through the OBPP
service after the deadline set forth in the OBPP reference materials as
they are in effect at the relevant time, that payment authorization will not
be deemed to have been submitted until the next business day (which
will be the payment date for that payment authorization). For purposes
of submitting payment authorizations for an ACH debit entry only,
Sunday will be deemed a "business day" for any payment authorizations
submitted after the delivery deadline on Friday and before the delivery
deadline on Sunday. In that regard, you may receive two files of ACH
payments on Monday (or the next business day if Monday is not a
business day) --one for payments authorized before 5 p.m. on Friday
and another for payments authorized after 5 p.m. on Friday and before 5
p.m. on Sunday.
(g) The OBPP service will use commercially reasonable
procedures to verify that the routing number associated with any ACH
debit entry initiated using the OBPP service is valid.
4. Administrative Functions. You may use the biller website to
perform certain administrative functions in connection with your use of
the OBPP service. These functions may include registering a payer,
administering and approving a payer's registration, viewing the status of
payments, deleting payments, modifying scheduled payments, receiving
certain notices, generating and viewing certain transaction reports,
establishing authorized users and the limits on each authorized user's
authority, and downloading and uploading certain files of data. Any
modification or deletion of a payment must be completed prior to the
deadline for submitting payment authorizations set forth in the OBPP
reference materials as they are in effect at the relevant time. Reports
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are available to be viewed through the tiller website only for the number
of days set forth in the OBPP reference materials as they are in effect at
the relevant time. All files uploaded or downloaded through the biller
website will be transmitted to us or to you as you selected during our
implementation of your setup for the OBPP service.
6. Representations and Warranties. Except as otherwise
provided in section 3(g) above related to verification of routing numbers
and in section 7(d) below related to secure connections, (a) for each
ACH debit entry you initiate through the OBPP service, you must comply
with all obligations of an originator of, and automatically make all
representations, warranties and agreements set forth in the ACH rules
and the terms and conditions for the ACH origination service related to
any entries with the same entry code type as used for that ACH debit
entry and (b) for each credit or debit card charge you initiate through the
OBPP service, you must comply with all obligations of a merchant with
respect to, and automatically make all representations, warranties and
agreements set forth in the card rules related to that type of credit or
debit card charge. You further represent that any payment or other
authorization you or a payer submits through the OBPP system has
been authorized by the relevant payer. You also represent and warrant
to us that our use of your (1) name, trademarks, service marks,
copyrights and logos and other textual information in connection with the
biller website and (ii) data in connection with the OBPP service, in each
case as contemplated by these OBPP terms and conditions, does not
infringe or otherwise violate any intellectual property or other proprietary
rights of any third party.
6. Designation of Security Administrators. You must identify at
least one person as your OBPP security administrator in your OBPP
service profiles as they are in effect at the relevant time. Each security
administrator will be set up with full user permissions with respect to the
biller website, including the right to administer the rights and
permissions of all other users. Each security administrator and other
user who has been granted user administration rights with respect to the
biller website will be a "security administrator," and will have all of the
rights and responsibilities described in the general terms and conditions
and these OBPP terms and conditions. In addition to the ability to
administer the rights and permissions of your other users, each security
administrator may administer his or her own user rights and
permissions, including adding rights and permissions. One of your
security administrators may also delete another security administrator or
modify that security administrator's rights and permissions through the
biller website.
7. Security Procedures. The following security procedures
apply to your use of the OBPP service:
(a) Your use of the biller website: We will provide each
security administrator identified in your OBPP service profiles as they
are in effect at the relevant time with a user id and password to log on to
the biller website. Your authorized users must log on to the biller
website using the authorization codes that will be supplied to them by a
security administrator. Each authorized user will have the rights and
permissions granted to them by a security administrator. You are solely
responsible for establishing the security procedures an authorized user
must follow to verify the identity of a payer and the authenticity of verbal
TREASURY MANAGEMENT
TERMS AND CONDITIONS
payment or other authorizations a payer gives an authorized user over
the telephone before those payment or other authorizations are
submitted through the biller website.
(b) A pM ees use of the tiller website: To access and use
the biller website, a payer must log on to the biller website using that
payer's user id and the password, as then reflected in the OBPP
system. If a payer self -registers in the OBPP system through the biller
website, the payer will select the payer's own user id and password. If
an authorized user registers a payer through the biller website, you will
designate the payer's user id and a temporary password. The OBPP
system will prompt the payer to change this temporary password upon
the initial log in to the biller website and the payer will be required to
reset this temporary password before authorizing payments through the
biller website.
(c) Password and user id resets: A payer may reset the
payer's password through the biller website by providing the user id and
related email address then reflected in the OBPP system. An email
notification and temporary password will be sent to the payer's email
address as then reflected in the OBPP system. The OBPP system will
prompt the payer to change this temporary password upon the next log
in to the biller website and the payer will be required to reset this
temporary password before authorizing payments through the biller
website. However, only an authorized user that has been given
administrator rights may reset a payer's user id. This can be done at
any time through the biller website.
(d) Secure connection: For each session on the biller
website, any payment information will be transmitted through the OBPP
system via a secure session utilizing a commercially reasonable security
technology that provides a level of security that, at a minimum, is
equivalent to 128-bit encryption technology, employed prior to the key
entry of any payment information and through transmission to us. All
payer information stored in the OBPP system will be stored in an
encrypted format utilizing security technology providing a level of
encryption that, at a minimum, is equivalent to 128-bit encryption
technology. You and each payer must have equipment and software
that supports encryption technology equivalent to 128-bit encryption.
(e) PAL totals. Immediately prior to transmitting the NACHA
formatted file to us, the OBPP system will communicate the total dollar
amount of the file (referred to as the "Phone Authorization Line or PAL
Total") to us through the biller website. We do not require that you
separately submit PAL totals through our PAL system to process files of
ACH debit entries initiated through the OBPP service.
You agree that these security procedures are commercially reasonable.
8. Protection of Our Vendor. We utilize one or more vendors in
providing the OBPP service. As a result, you agree that (a) each
reference to "we," "us" and "our'" in any provision in the general terms
and conditions or these OBPP terms and conditions that limits our
liability to you, protects our data, intellectual property or other
proprietary rights, gives us and/or our vendors a right or license to use
your data, intellectual property or other proprietary rights or imposes an
indemnification obligation on you will, with respect to the OBPP service,
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be deemed to include our vendors and their licensors and (b) our
vendors and their licensors are third party beneficiaries of those
provisions and may enforce them directly against you.
9. ACH Oriainatipn Service. These OBPP terms and conditions
are expressly made a part of the ACH origination terms and conditions
and are subject to the provisions thereof. Terms that are defined in the
ACH origination terms and conditions have the same meanings when
used in these OBPP terms and conditions. If there is any inconsistency
Online Check Deposit Service
TREASURY MANAGEMENT
TERMS AND CONDITIONS
on a particular issue between these OBPP terms and conditions and the
ACH origination terms and conditions, these OBPP terms and
conditions will control. You understand and agree, however, that our
agreement to provide the OBPP service does not permit you to use any
other aspect of the ACH origination service unless we have agreed to
include it in our implementation of your setup for the �CH origination
service.
This section applies to those who use Online Check Deposit prior to November 19, 2012.
1. Description of the OCD Service. The Online Check
Deposit or "OCD" service allows you to capture an electronic image
of an original physical, paper check (and associated information
describing that check) and to transmit that image and associated
information to us for deposit to your account in place of forwarding
the original physical paper check to us. The OCD service will also
provide access to, and the ability to export and print, deposited check
images as well as reports regarding your use of the OCD service.
Details regarding OCD's functionality and certain formatting and
other technical requirements that you must follow when using the
OCD service are provided in the OCD reference materials as we
update them from time to time. The OCD service may not be used
outside of the United States without our prior written approval and
may not be used to Capture an electronic image of a remotely
created check (as that term is defined in Regulation CC).
2. Operation of the OCD Service.
(a) Required Hardware and Software. Before you may
use the OCD service, you must have or obtain a personal computer,
printer, scanner and related software necessary to capture electronic
images of (and associated information regarding) checks that you
receive. The scanner must be a model that we have approved. As
part of providing the OCD service, we will sublicense the software to
you that you need to capture electronic images of (and associated
information regarding) checks. You must download the software and
install it on a personal computer that you will use in connection with
the OCD service. A separate copy of the software materials must be
downloaded for use with each personal computer (for reviewng
reports) and for each appoved scanner and personal computer that
you need to capture electronic images of (and associated information
regarding) checks. You must notify us and obtain our approval
before you download each copy of the software. You must have or
acquire each approved scanner needed by you to utilize the OCD
service. You acknowledge that you previously acquired or are
currently acquiring each scanner directly from a third party vendor
and, as a result, all warranty obligations and contracts are to be
handled directly with that vendor. At your request, we may provide
(in a form acceptable to us) your contact information and your
scanner acquisition Information to a third party vendor. Upon
receipt of your information, the third party vendor will facilitate
your scanner acquisition. You agree that we ar only providing
this information to the third party vendor as an accom Tiodation to you
to facilitate your acquisition of a scanner and that we Jo not have any
responsibility or liability for the delivery of or an aspect of the
operation, use or maintenance of the scanner.
(b) OCD Setups. Your authorized use for the OCD
service (and the accounts with respect to wh ch each such
authorized user may use the OCD service to make d posits or obtain
information or reports) are designated in your OCD service profiles
as they are in effect at the relevant time. The OCOD service also
offers you the option (through its Location Identi er function) of
assigning a Location ID number or alphanumeric description for
each store, branch or office (each of which is referred to as a
"location") for which deposits are captured and transmitted to us
through the OCD service. Your election to use the Location ID
function and the numbers andlor descriptions for each location are
reflected in our implementation/setup forms for the OCD service as
they are in effect at the relevant time. You must provide us with the
street address for each scanner to include in our implementation of
your setup for the OCD service. Please note that you must notify us
before you add, delete, or relocate any scanner so that addition,
deletion or relocation can be reflected in your OCD service profiles.
If you want to completely delete an account that is included in our
implementation of your setup for the OCD service, you must delete it
from the setup for each authorized user in which it is included as
reflected in your OCD service profiles as they are in effect at the
relevant time. Each account or authorized user you have previously
identified to us continues to be authorized unless you confirm an
OCD service profile that deletes that account or authorized user.
Any authorized user will be able to access information regarding
deposited checks and reports for their assigned accounts from any
personal computer on which the software has been downloaded and
installed, even if there is no a scanner attached to that personal
computer and/or it is located at a different address than listed for that
authorized user in your OCD service profiles as they are in effect at
the relevant time. Additional information regarding the Location
Identifier function, plus adding or deleting accounts, locations or
authorized users is available in the OCD reference materials.
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(c) Capturing Check Images and Information. In order to
use the OCD service to capture check images (and associated
information) or review reports, you must log on using one or more
authorization codes that we will distribute directly to the authorized
users designated in a service profile for this service. Separate
authorization codes may be issued to an authorized user for each
OCD service setup in which the authorized user is included. After
you have logged on, you will be required to provide us a control total
for each deposit that you are going to capture. The control total is
the total dollar amount of all checks included in a particular deposit.
After you have provided the control total for a deposit, using the
personal computer, scanner and software (all of which are referred to
in these OCD terms and conditions as your "OCD system"), you may
capture an electronic image of (and associated information
regarding) any original physical paper check that you have endorsed
and that meets the standards for processing an image for deposit
(including those set forth in the OCD reference materials). Those
standards are referred to in these OCD terms and conditions as the
"OCD standards." As you capture images and associated
information for each check included in a deposit, the OCD system
processes them to determine if they satisfy the OCD standards. if an
image and associated information satisfy the OCD standards, the
OCD system will accept them. If the OCD system determines an
image or associated information does not satisfy the OCD standards,
the OCD system will reject the nonconforming image or information
and ask you to rescan the check, manually provide or verify
information or, for certain image quality failures, elect to submit the
image or associated information as captured. Please note that the
inclusion of this limited election to submit an image as captured in the
OCD system does not relieve you of the representations and
warranties you make with respect to each image and associated
information you transmit to us. Once all of the images and
associated information for a deposit have been processed, the OCD
system will provide you a summary of the deposit and ask you to
submit the deposit to us. Once you have submitted a deposit to us,
you may not cancel it. We must receive your deposit by the then -
current deadline set forth in the OCD reference materials. In that
regard, we are not liable for any delays or errors in transmission of
the images or associated information. If the OCD service is not
available, you must make your deposits by another method, such as
an in -person deposit at one of our branches or a deposit by mail.
(d) Processing of Images and Information. Once we have
received a deposit, we will use each image and associated
information included in that deposit to create a substitute check or, at
our option, process it as an electronic item. If we use an image and
associated information to create a substitute check, we will process
that substitute check for deposit to your account and forward it for
presentment to the financial institution on which the original check
was drawn or through or at which it was payable (that institution is
referred to in these OCD terms and conditions as the "drawee bank")
through the check collection channels that we would otherwise use to
present a check to the drawee bank. If we elect to process an image
and associated information as an electronic item, we will process that
image for deposit to your account and forward it for presentment to
TREASURY MANAGEMENT
TERMS AND CONDITIONS
the drawee bank through the electronic item collection channels that
we would otherwise use to present an electronic item to the drawee
bank. In either event, your deposit will be subject to the terms of any
agreement we have with other financial institutions relating to the
presentation of substitute checks or electronic items. We will make
funds for each substitute check or electronic item that we process for
deposit to your account available to you under the same schedule
that would have applied if you had deposited the original check to
your account on the business day that we received the file containing
a conforming image of that check.
(e) Retums and Rejected Images. If we determine an
image or associated information Is not in a satisfactory form or is a
duplicate, we may reject the nonconforming image or duplicate item,
which means those items are sent back to you for reasons of poor
quality, missing images or duplicate items. A summary debit
adjustment will be made to your account and a debit advice will be
sent to you. In addition, any image and associated information
included in a deposit must satisfy the quality standards of the Federal
Reserve Bank or other collecting bank to which we have forwarded
an image and associated information for collection, the "collecting
bank quality standards." All check images which fail to meet
collecting bank quality standards will be sent to you as a return
advice with attached image for each item. There are no specific
timelines for these types of adjustments, but they are usually
completed within thirty business days of deposit. If an image is
rejected for failing to meet the OCD standards or the collecting bank
quality standards, you must take corrective action to either recapture
the image and associated information and submit it in a new OCD or
submit the original check for deposit.
(f) Original Checks and Captured Images. You agree to
use commercially reasonable security procedures to safeguard the
original physical paper checks, images and associated information in
your possession after you have transmitted images of such items to
us and you agree to make such items available to us promptly upon
our request. You agree that you will not capture more than one
image of (or associated information regarding) any original check and
that you will not negotiate, deposit or otherwise transfer any original
check to us or to any other person or entity after you have captured
an image of (or associated information regarding) it. You also agree
that (i) you will not transmit an image of (or associated information
regarding) any original check to us more than once, (ii) you will not
transmit an image of (or associated information regarding) any
original check to us that you have previously transmitted to any other
person or entity, (III) you will not transmit an image of (or associated
information regarding) any original check to any other person or
entity after you have transmitted it to us, (iv) you will not transmit an
image of (or associated information regarding) any original check if
that check has been used as a source document for the initiation of
an ACH or other electronic debit; and (v) you will not use any original
check as a source document for the initiation of an ACH or other
electronic debit after you have transmitted an image of (or associated
information regarding) that check to us.
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3. Your Representations and Warranties. You make all of the
representations and warranties to us with respect to each captured
check image and associated information that you transmit to us that
you would have made if you had deposited the original physical
paper check into your account. in addition, you represent and
warrant to us with respect to each captured check image and
associated information that you transmit to us that (a) the image and
associated information (1) accurately represent all of the information
on the front and back of the original physical paper check at the time
the image and associated information were captured and (Ii) are
otherwise sufficient for us to satisfy our obligations as the truncating
and reconverting bank and (b) no person or entity will receive a
transfer, presentment or return of, or otherwise be charged for, (i) the
original check, (H) an electronic item or substitute check that we
create from the image and associated information, or (III) a paper or
electronic representation of the original check or of a substitute check
that we create from the image and associated information, such that
the person or entity will be asked to make a payment based on a
check that it has already paid.
4. Your Indemnification Obligations. In addition to any other
obligation you have to indemnify us, you agree to defend, indemnify,
protect and hold us, our affiliates, our vendors and our respective
officers, directors, employees, attorneys, agents, and representatives
harmless from and against any and all liabilities, claims, damages,
losses, demands, fines (including those imposed by any Federal
Reserve Bank, clearing house or funds transfer system), judgments,
disputes, costs, charges and expenses (including litigation expenses,
other costs of investigation or defense and reasonable attorneys'
fees) which relate in any way to (a) the use of the OCD system or
OCD service to capture an image of a remotely created check,
(b) your use of the OCD system or the OCD service (other than as
expressly provided in these OCD terms and conditions) or (c) the
receipt by any person or entity of (i) an electronic item, (ii) a
substitute check or (III) a paper or electronic representation of the
original check or the substitute check that we create from a captured
check image and associated information that you transmit to us,
instead of the original check.
5. Security Procedures. The security procedures for the OCD
service include the requirement that your authorized users log on to
OCD service using the authorization codes that we supply to them.
We may replace the password portion of an authorization code upon
your request, by calling the telephone number of your authorized
user as shown in our records and giving the new password to any
person answering the phone at that number. You agree that we may
give the new password to anyone we believe in good faith is your
user. Unless you otherwise instruct us to limit the use of
authorization codes to certain accounts, any set of authorization
codes issued for use with OCD service could be used to transmit or
receive files through OCD service for any account that we have
included in your setup for OCD service. You agree that these
security procedures are commercially reasonable.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
This section applies to those who use Online Check Deposit
after November 19, 2012. For those of you who were using the
Online Check Deposit Service prior to November 19, 2012, this
section applies to you upon your notice from us of your
migration to the new platform.
1. Description of the OCD Service and Restrictions on Use
The Online Check Deposit or "OCD" service and the Intemet-based
OCD system allow you to capture an electronic image of an original
physical paper check and an image of associated information
describing that check including optical character recognition (OCR)
remittance coupons and transmit the image of the check to us for
deposit to your account. The OCD service also provides access to,
and the ability to export and print, deposited check images and
remittance coupon images as well as reports regarding your use of
the OCD service. Further details regarding OCD's functionality and
certain formatting and other technical requirements that you must
follow when using the OCD service are provided in the then current
version of the OCD reference materials which, among other things,
include a user manual for OCD system administrators and a user
manual for end users of the OCD system. The reference materials
are contained in the Intemet-based microsite for this service. The
OCD service may not be used outside of the United States, US
territories, US military bases or US Embassies. The OCD Service
may not be used to deposit ineligible items. A list of items that are
eligible and ineligible for transmission via the OCD Service is
provided in the OCD reference materials.
2. Required Hardware and Software. Before you can use the
OCD service, you must have a personal computer capable of Internet
access, a scanner, and the related software needed to capture
electronic images of checks, associated information and remittance
data. The scanner must be a model that we have approved. A list of
approved scanners and technical information related to scanner
installation can be found in the reference materials. When you
acquire a scanner from a third party vendor you agree that all
warranty obligations and contracts are to be handled directly with that
vendor and that we do not have any responsibility or liability for the
performance of the vendor, the delivery of the scanner or any aspect
of the operation, use or maintenance of the scanner. At your request,
we may provide your contact information and information related to
your desired scanner to a third party vendor. When the vendor
receives your information the vendor will contact you directly to
facilitate your scanner acquisition. You agree that we are only
providing this information to the third party vendor as an
accommodation to you to facilitate your potential acquisition of a
scanner and that we do not have any responsibility or liability for the
performance of the vendor or the delivery of the scanner or any
aspect of the operation, use or maintenance of the scanner.
3. Required Security Administrator and Contact Before you
can use the OCD service, you must designate one person who will
act as both your primary OCD security administrator and your OCD
contact. You will be required to confirm your selection of this
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person. Details on how you will provide this confirmation will be
provided to you during implementation of the OCD service. The
primary OCD Security Administrator you select will have the
authority, in his or her discretion, to then set up users and one or
more additional OCD security administrators directly through the
OCD service. These additional security administrators will in turn
then have the ability to establish additional OCD security
administrators and users. Details on how you establish and terminate
security administrator and user rights are addressed in the OCD
reference material for security administrators. Given the ability of a
security administrator to create additional security administrators, the
term "OCD security administrator" therefore includes not only the
primary OCD security administrator but any other user who is
granted administration entitlements by that OCD security
administrator or any other OCD security administrator(s). Security
administrator and user access to the OCD Service carries with it the
ability to access any accounts and services included in the
functionality that is available in the OCD service. Given the
flexibility that is designed into the OCD System to enable this
cascading of administrative and user rights for the benefit of
customers who require it, as a matter of your Internal control
policies, you must consider carefully the person you will name
as your primary OCD security administrator and you must
develop procedures to routinely monitor the actions of all your
security administrator(s) and those to whom the primary
security administrator has given OCD access either as a user or
security administrator. We will provide information on such activity
to any authorized signer who makes a request for it but the bank
undertakes no duty to monitor the actions of any security
administrator(s) or designated user(s). Each of your OCD security
administrators, has all of the rights and responsibilities given to them
in the general terms and conditions in addition to the rights and
responsibilities contained in these OCD terms and conditions and
related reference materials.
4. Deletion of Accounts Associated with the OCD Service. If
you want to completely delete an account that is included in your
implementation of the OCD service, an authorized signer on the
account must contact the bank and make this request. Additional
information regarding user entitlements and the process for adding or
deleting accounts, locations or authorized users is available in the
OCD reference materials for security administrators.
5. Using OCD to Capture and Transmit Check Images and
Information. In order to use the OCD service, an authorized user
must log on using a user ID number and password that we will
distribute directly to the authorized user(s). After a user has logged
on, the user will be required to provide us a control total for each
deposit that he/she intends to transmit. The control total is the total
dollar amount of all checks included in a particular deposit. After the
user has entered the control total for a deposit into the OCD system,
the user may capture images of original physical paper checks and
associated information that meets the eligibility and image quality
standards set forth in the OCD reference materials and in these OCD
terms and conditions. All such standards are referred to as the "OCD
TREASURY MANAGEMENT
TERMS AND CONDITIONS
standards." As the user captures an image, the OCD system will
determine if the image satisfies the OCD standards. If an image
satisfies the OCD standards, the OCD system will accept it and
information associated with it. If the OCD system determines an
image does not satisfy the OCD standards, the OCD system will
reject the nonconforming image and ask the user to either a.) rescan
the check, b.) manually provide or verify information or, c.) for certain
types of limited image quality failures, confirm the user's desire to
submit the image or associated information as captured. Please
note that the inclusion of the ability for a user to submit an
Image as captured in the OCD system in certain limited
situations does not relieve you of the representations and
warranties you make with respect to each Image and associated
Information you transmit to us. Once all of the images and
associated information for a deposit have been scanned, the OCD
system will provide the user a summary of the deposit and ask the
user to submit the deposit to us. Once the user has submitted a
deposit, it may not be cancelled.
6. Dual Approval Security Feature.The security procedures for
the OCD service include the option to use a dual approval security
protocol. The dual approval security feature requires that at least two
authorized users be involved in the check image capture and
approval process in order to submit an OCD file for deposit One user
must scan the check images and then a second user with approval
permissions must release and send the check image file to the bank.
Only users with approval permission can submit the file to the bank
for processing. We highly recommend this Internal control
process for any company large enough to have more than one
employee involved in accounts receivable and check collection
and deposit processes.
7. Processing of Images and Information. Once we have
received a deposit we will, at our option, use each accepted check
image and associated information to process the check image as an
electronic item or to create a substitute check. If we use an image
and associated information to create a substitute check, we will
process that substitute check for deposit to your account and forward
it through the check collection channels that we would otherwise
have used to present the original paper check to the bank on which
the check is drawn. If we elect to process an image and associated
information as an electronic item, we will process that image for
deposit to your account and forward it for presentment to the bank on
which it is drawn through the electronic item collection channels that
we would otherwise use to present an electronic item to such bank.
In either event, your deposit will be subject to the terms of any
agreement we have with other financial institutions relating to the
presentation of substitute checks or electronic items.
8. Deposit Credit and Alternative Deposit Methods. We must
receive your deposit by the daily deadline set forth in the OCD
reference materials in order for you to receive credit for that deposit
on that business day. Deposits received after the deadline will be
considered deposited on the next business day. Deposits submitted
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on a Saturday, Sunday or holiday will be considered deposited on the
next business day following the weekend or holiday. We are not
liable for any delays or errors in transmission of the images or
associated information. If the OCD service is not available, you must
make your deposits by another method, such as an in -person deposit
at one of our branches or a deposit by mail. If you must make a
deposit by other means due to OCD service being unavailable you
should deposit only checks and should retain in your possession the
other documents you would normally scan with an OCD deposit.
9. Funds Availability. We will make funds for each substitute
check or electronic item that we process for deposit to your account
available to you under the same schedule that would have applied if
you had deposited the original paper check to your account.
10. Returns and Rejected Images. If we determine an image or
associated information is not in a satisfactory form or is a duplicate,
we may reject the nonconforming image or duplicate item. This
means that the item is not accepted for deposit and it will be sent
back to you for reasons of poor quality, missing images or duplicate
items. A summary debit adjustment will be made to your account, in
situations where you were given credit for the item, and a debit
advice will be sent to you. In addition to satisfying our image quality
standards, any image and associated information included in a
deposit must also satisfy the quality standards of the Federal
Reserve Bank or other collecting bank to which we have forwarded
an image and associated information for collection, the "collecting
bank quality standards." We will send you all check images which fail
to meet collecting bank quality standards. There are no specific
timelines for these types of adjustments. They are, however, usually
completed within thirty business days of deposit. If an image is
rejected for failing to meet the OCD standards or the collecting bank
quality standards, you must take corrective action to either recapture
the image and associated information and submit it in a new OCD file
transmission or submit the original check for deposit.
11. Original Checks and Captured Images. You agree to use
commercially reasonable security procedures to safeguard the
original physical paper checks, images of them and associated
information in your possession both before and after you have
transmitted images of such items to us. You also agree to make all
such items available to us promptly upon our request. You also agree
to establish reasonable retention and destruction schedules, policies
and procedures for paper checks that are retained by you after they
have been scanned and submitted for deposit and to employ
methods to stamp or mark the front of such items as having been
previously deposited, and to establish general internal control
procedures related to physical and logical security related to access,
transmission, storage, and disposal of items you have transmitted for
deposit.
12. Your Representations and Warranties. You represent,
warrant and agree that you will not:
TREASURY MANAGEMENT
TERMS AND CONDITIONS
a.) capture or transmit more than one image of
any original check;
b.) negotiate, deposit, or otherwise transfer any
original check to us or to any other person
or entity after you have captured an image
of it;
c.) transmit an image of any original check to
us that you have previously transmitted or
given to any other person or entity,
d.) transmit an image of any original check to
any other person or entity after you have
transmitted it to us;
e.) transmit an image of any original check if
that check has been used as a source
document for the initiation of an ACH or
other electronic debit; or
f.) use any original check as a source
document for the initiation of an ACH or
other electronic debit after you have
transmitted an image of (or associated
information regarding) that check to us.
You also make all of the representations and warranties to us with
respect to each check image that you transmit to us that you would
have made under the Uniform Commercial Code (UCC) if you had
deposited the original physical paper check into your account.
In addition, you represent and warrant to us with respect to each
captured check image and associated information you transmit to
us that:
a.) the image and associated information (i) accurately represent all
of the information on the front and back of the original physical
paper check at the time it was received by you and at the time the
image and associated information were captured; and (ii) are
otherwise sufficient for us to satisfy our obligations as the
truncating and reconverting bank; and
b.) no person or entity will receive a transfer, presentment or return
of, or otherwise be charged for, (I) the original check, (ii) an
electronic item or substitute check other than the one that we
create from the image and associated information, or (iii) a paper or
electronic representation of the original check or of a substitute
check other than the one that we create from the image and
associated information, such that the person or entity will be asked
to make a payment based on a check that it has already paid.
13. Duty of Cooperation Document Production, Audit. You
agree that you shall make original and imaged documents available
to us to facilitate investigations related to unusual transactions or
poor image quality transmissions, or to resolve disputes. You further
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agree that we, at our option, upon prior notice, may perform periodic
audits of your processes related to use or proposed use of the OCD
service including your IT, security and internal control infrastructure
related to your use of the OCD service. You agree that we have the
right to mandate specific internal controls at any of your locations that
use the OCD service where we deem such actions necessary to
protect the security and integrity of the OCD service or where
required or expected by bank regulators, and that we may terminate
the service if you refuse to implement such controls. You further
agree that we have the right, in general, to terminate the OCD
service pursuant to the rights of termination stated in the general
terms and conditions for all services and to delay or refuse to
process transactions, including OCD transactions, for the reasons
stated in the general terms and conditions for all services.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
protect and hold us, our affiliates, our vendors and our respective
officers, directors, employees, attorneys, agents, and representatives
harmless from and against any and all liabilities, claims, damages,
losses, demands, fines (including those imposed by any Federal
Reserve Bank, clearing house or funds transfer system), judgments,
disputes, costs, charges and expenses (including litigation expenses,
other costs of investigation or defense and reasonable attorneys'
fees) which relate in any way to (a) the use of the OCD system or
OCD service to capture an image of a remotely created check,
(b) your use of the OCD system or the OCD service in a manner
other than as expressly provided in these OCD terms and conditions
or (c) the receipt by any person or entity of (i) an electronic item, (ii) a
substitute check or (iii) a paper or electronic representation of the
original check or the substitute check that we create from a captured
check image and associated information that you transmit to us,
14. Your Indemnification Obligations. In addition to any other instead of the original check.
obligation you have to indemnify us, you agree to defend, indemnify,
Online Courier Service
1. Description of the OLC Service. The SunTrust Online Courier
or "OLC" service is an information reporting service that is available over
the Internet or dedicated telephone lines. It is one of the online services
described in the general terms and conditions. You may use the OLC
service with respect to the accounts and services that you have
identified (in a form acceptable to us) and that we have included our
implementation of your setup for the OLC service. Details regarding
OLC's functionality and certain formatting and other technical
requirements that you must follow when using the OLC service are
provided in the OLC reference materials as we update them from time to
time.
OLC security administrator and a person who will act as your OLC
contact. These people will have all of the rights and responsibilities
described in the general terms and conditions and will be identified in
your OLC service profiles as they are in effect at the relevant time.
3. Fees. Fees for the OLC service will be charged to the
account that is identified in your OLC service profiles as they are in
effect at the relevant time.
4. Security Procedures. The security procedures for the OLC
service include the requirement that your users log on to the OLC
service using the authorization codes that will be supplied by your
2. Designation of Security Administrator and Contact. in order to security administrator as described in the general terms and conditions.
use the OLC service, you must designate a person who will act as your You agree that these security procedures are commercially reasonable.
Online File Transfer Service
1. Description of the OFT Service. The SunTrust Online File
Transfer or "OFT' service is an Intemet-based data transmission
service. It is one of the online services described in the general terms
and conditions. Details regarding OFTs functionality and certain
formatting and other technical requirements that you must follow when
using the OFT service are provided in the OFT reference materials as
we update them from time to time.
2. Use of the OFT Service. You may use the OFT service with
respect to the accounts and services that are identified in your OFT
service profiles as they are in effect at the relevant time and that we
have included in our implementation of your setup for the OFT service.
In that regard, if your service profile for any other service includes
information regarding an OFT contact, those service profiles constitute
OFT service profiles as well.
3. Multiple Authorization Codes. OFT authorization codes are
not tied to any particular account or service. As a result, unless you
have instructed us (in a form acceptable to us) to limit the use of
authorization codes to certain accounts and/or services, you should
understand that if multiple sets of OFT authorization codes have been
issued, any set of authorization codes may be used to transmit files
through the OFT service for any service or account that we have
included in your set up for the OFT service, whether or not the specific
authorization codes being used were intended to be used with the
particular account or service.
4. Designation of Contact. In order to use the OFT service, you
must designate at least one person who will act as your OFT contact.
This person will have all of the rights and responsibilities described in
the general terms and conditions and these OFT terms and conditions
and will be identified in your OFT service profiles as they are in effect at
the relevant time. If you name only one such person on all of your OFT
service profiles, then that person will act as your OFT contact for all
accounts and services included in your set up for the OFT service. If
you want a separate OFT contact for one or more accounts and
services, then each of those separate OFT contacts must be identified
in your OFT service profiles as they are in effect at the relevant time.
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You may also name a person as your backup OFT contact. If you name
only one such person on all of your OFT service profiles, then that
person will act as your backup OFT contact for all accounts and
services included in your set up for the OFT service. If you want a
separate backup OFT contact for one or more accounts and services,
then each of those separate backup OFT contacts must be Identified in
your OFT service profiles as they are in effect at the relevant time.
5. Fees. Fees for the OFT service will be charged to the account
identified in your OFT service profiles as they are in effect at the
relevant time.
Online Treasury Manager Service
1. Description of the Online Treasury Manager Service. The
SunTrust Online Treasury Manager or "OTM" service is an Internet -
based information reporting and transaction initiation service. It is one
of the online services described in the general terms and conditions.
Details regarding OTM's functionality and certain formatting and other
technical requirements that you must follow when using the OTM
service are provided in the OTM reference materials as we update them
from time to time.
2. Use of the OTM Service. You may use the OTM service with
respect to the accounts and services that you have identified (in a form
acceptable to us) and that we have included in our implementation of
your setup for the OTM service at the relevant time.
3. Security Administrators and Contact. In order to use the OTM
service, you must designate at least one person who will act as your
OTM security administrator and a person who will act as your OTM
contact. You may identify your OTM security administrator(s) and your
OTM contact we are to include in our implementation of your setup of
the OTM service in your OTM service profiles as they are in effect at the
relevant time. You may set up one or more additional OTM security
administrators directly through the OTM service by granting
administration entitlements to a user. In addition to the OTM security
administrator(s) reflected in your OTM service profiles as they are in
effect at the relevant time, the term "OTM security administrator'
includes any other user set up in the OTM service who is granted
administration entitlements by any other OTM security administrator(s).
In addition to any of the rights and responsibilities of an OTM security
administrator or OTM contact described in these OTM terms and
conditions or any OTM reference materials, each of your OTM security
administrators and OTM contacts will have all of the rights and
responsibilities described in the general terms and conditions for
security administrators and contacts, respectively. Each of your OTM
security administrators may be able to grant any user authorized to use
the OTM service, including themselves, access to any accounts and
services included in your setup of the OTM service for any functionality
or entitlement that is available in the OTM service. In addition, you may
also terminate administration entitlements of any OTM security
administrator directly through the OTM service. If through the OTM
service you terminate the administration entitlements of an OTM
security administrator designated on one of your service profiles in
effect at that time, you are solely responsible for updating your service
TREASURY MANAGEMENT
TERMS AND CONDITIONS
6. Security Procedures. The security procedures for the OFT
service include the requirement that your users log on to the OFT
service using the authorization codes that we supply to your OFT
contact(s) as described in the general terms and conditions. In that
regard, we will replace the password portion of an authorization code
upon your request. We will do so by calling the telephone number of
your OFT contact (s) listed in your OFT service profile as it is in effect at
the relevant time and giving the new password to the person answering
the phone at that number. You agree that we may give the new
password to anyone we believe in good faith is your authorized user.
You agree that these security procedures are commercially reasonable.
profiles to delete that person from the service profiles as well, so that
your service profiles and authorizations in the OTM service are
consistent. We may rely on information in your service profiles as they
are in effect at the relevant time, and we have no responsibility if the
authorizations you have granted directly through the OTM service are
not consistent with your service profiles.
4. Fees. Fees for the OTM service will be charged to the
account(s) identified in your OTM service profiles as they are in effect at
the relevant time.
5. Security Procedures. The security procedures for the OTM
service include the requirement that each of your users logs on to the
OTM service using that users authorization codes. Your users should
not give their authorization codes to any other person or use them
anywhere other than within the OTM service. The user's initial
authorization codes will be supplied by an OTM security administrator
as described in the general terms and conditions. You are solely
responsible for developing appropriate checks and balances to
effectively control and monitor the use of the OTM service by all users,
including each of your OTM security administrators. We may require
that a user provide additional information or use other additional security
procedures to authenticate that user. You agree that the security
procedures for the OTM service are commercially reasonable for you.
(a) Dual Approval Security Feature. The security procedures
for the OTM service include the use of the "dual approval" security
feature. The dual approval security feature requires that at least two
authorized users be involved in the initiation and release of any wire
transfer or ACH transaction through the OTM service. One user with
sufficient initiation entitlements must input the transaction information;
and at least one other user with sufficient approval entitlements must
approve the transaction before it is released and processed.
(b) Secure Browsing Software. Effective on the requirement
date for the secure browsing software, the security procedures for the
OTM service will include the requirement that each of your users logs on
to the OTM service from a computer on which you have installed and
have running Rapport, the secure browsing software provided by
Trusteer Inc. (or one of its affiliates), or other secure browsing software
which we may have approved for use with the OTM service from time to
time. Trusteer Rapport or such other approved secure browsing
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software is referred to herein as the 'secure browsing software." The
"requirement date for the secure browsing software" means either (i)
June 20, 2011, or (ii) for each of your setups of the OTM service we
have implemented or begun to implement by that date, the effective
date for the required use of secure browsing software that is set forth in
the letter we will send or have sent to you, to notify you of this change
and an amendment to the terms and conditions of the OTM service. We
use various means to detect if secure browsing software is installed and
running on a computer. If by using the methods we employ at the
relevant time, we are not able to detect that secure browsing software is
installed and running on the computer from which one of your users is
attempting to access the OTM service, your user will not be permitted to
log on to the OTM service from that computer. If, however, by using
those methods we employ at the relevant time, we determine that
secure browsing software is installed and running on a computer, your
user will be able log on to the OTM service from that computer (so long
as that user also complies with the other security procedures applicable
to that user accessing the OTM service). Your use of the secure
browsing software will be licensed to you by the vendor of the secure
browsing software you are using under a separate license agreement,
the "software license agreement." You agree that your use of the
secure browsing software is subject to, and that you are bound by and
will comply with, the terms of that software license agreement. WE
DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY
KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH
RESPECT TO ANY SECURE BROWSING SOFTWARE, INCLUDING
ANY REPRESENTATIONS AND WARRANTIES OF PERFORMANCE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON -INFRINGEMENT. We make no guarantees and have
no responsibility with respect to @ the operation of any secure browsing
software being uninterrupted, error free or free from program limitations,
(ii) defects in any secure browsing software or information provided
through it, or (iii) any secure browsing software being free of viruses,
disabling devices or other harmful components. You agree that
although the use of secure browsing software on any computer you are
using to log on to the OTM service is part of the security procedures for
the OTM service, WE WILL NOT HAVE ANY RESPONSIBILITY FOR
THE PERFORMANCE OF THE SECURE BROWSING SOFTWARE OR
ANY RELATED SERVICES OR FOR ANY LOSSES, DAMAGES,
COSTS, OR EXPENSES INCURRED RELATED TO YOUR USE OF,
OR ANY FAILURE, ERRORS, OR DEFICIENCIES OF, THE SECURE
BROWSING SOFTWARE OR ANY RELATED SERVICES, OR ANY
ACTS OF OMISSIONS OF THE VENDOR OF THE SECURE
BROWSING SOFTWARE, WHETHER RESULTING FROM BREACH
OF CONTRACT, NEGLIGENCE, VIOLATION OF LAW, OR WILLFUL
MISCONDUCT, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSSES, DAMAGES, COSTS OR
EXPENSES. Without limiting the foregoing, we will have no
responsibility if any equipment, communications capabilities, or software
that you are using at any time is not compatible with the secure
browsing software or when used with the secure browsing software has
an adverse impact on your ability to access the OTM service or the
performance of the OTM service. You are solely responsible for
determining if the secure browsing software will work with your
equipment, communications capabilities, and other software and for
TREASURY MANAGEMENT
TERMS AND CONDITIONS
ensuring that any installation of the secure browser software is in
accordance with your policies. You agree that any vendor of the secure
browsing software you are using is authorized to make certain
information related to the computer on which it is installed, including the
IP address, available to us, and in that event, we will have no obligation
to provide any notices to you, including with respect to any of that
information made available to us for the purposes of fraud prevention.
Your obligations under the general terms and conditions to maintain the
confidentiality of any software, software materials or other related
documentation will apply to any documents or information related to the
secure browsing software you use.
(c) Your Use of Non-standard Security Procedures. You
acknowledge that we have made available and offered to you
commercially reasonable security procedures for use of the OTM
service. If you elect to use non-standard security procedures (as
reflected by your OTM service profiles as they are in effect at the
relevant time or other form acceptable to us), you agree to be bound by
any access to the OTM service, any funds transfer to or from any
account of yours initiated through the OTM service, and any other
instructions submitted through the OTM service, in compliance with the
non-standard security procedures that you elected to use, whether such
access, funds transfer or other instructions were authorized or not, and
you further agree that the non-standard security procedures are
commercially reasonable for you. Non-standard security procedures
may include (but are not limited to) your election not to use the dual
approval security feature, which election may allow a single user to
initiate and approve wire or ACH transactions through the OTM service,
and your election not to use secure browsing software, which election
may allow one or more users to log on to the OTM service from a
computer that does not have secure browsing software installed on it
and actively running, You authorize each OTM security administrator to
elect on your behalf whether to use a non-standard security procedure.
We may, but are not obligated to, accept any such election from an
OTM security administrator, and any such election by an OTM security
administrator will be binding on you. We are not obligated to implement
your request to use non-standard security procedures, and you agree
we will have no liability whether or not we implement that request for
you.
(d) Hold Harmless and Indemnification. Without limiting or
modifying any other indemnities you provide us and in consideration of
our complying with your request to use any non-standard security
procedures, you agree, at your sole cost and expense, to indemnify and
hold us harmless against any and all liabilities, claims, damages, losses,
demands, fines, judgments, disputes, costs, charges and expenses
(including litigation expenses, other costs of investigation or defense
and reasonable attorneys' fees) incurred by us as a result of your using
a non-standard security procedure. In particular, and without limiting
your obligation under the foregoing sentence, you will indemnify and
hold us harmless against any and all claims and liability related to any
unauthorized funds transfers or unauthorized ACH debit entries that are
initiated through the OTM service, or any access to data available in the
OTM service, in compliance with the non-standard security procedures.
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6. Accounts if any loan or card account types are included in
your setup for the OTM service, the term "account" when used in these
OTM terms and conditions or the general terms and conditions in
reference to the OTM service includes these account types. In such a
case, you authorize us to release information relating to any loan or card
accounts identified in your OTM service profiles as they are in effect at
the relevant time in accordance with these OTM terms and conditions,
including the release of such information to any of your OTM users in
accordance with the access you have to such information granted to
each such OTM user.
7. Protection of Our Vendor. We utilize a vendor in providing the
OTM service. As a result, you agree that (a) each reference to "we,"
"us" and "our" in any provision limiting our liability to you or imposing an
indemnification obligation on you will, with respect to the OTM service,
be deemed to include our vendor and (b) our vendor is a third party
beneficiary of these OTM terms and conditions.
B. Multiple Setups of the OTM Service. If you have requested
that we implement more than one setup of the OTM service for you,
Positive Pay and Reverse Positive Pay Service
1. Description of the PPY and RPPY Services. The SunTrust
Positive Pay ("PPY") and Reverse Positive Pay ("RPPYj services allow
you to give us instructions to return certain checks that you believe may
be fraudulent or not validly issued. Details regarding the functionality
the PPY and RPPY services and certain formatting and other technical
requirements that you must follow when using the PPY or RPPY service
are provided in the PPY and RPPY reference materials as we update
them from time to time.
2. Selection of Service Options. You may select the PPY or
RPPY service for each account as described below. Your selection of
an option for an account is reflected in your PPY andlor RPPY service
profiles as they are in effect at the relevant time.
(a) Positive Pay or "PPY" Service Option.
(1) Presentment Processing. With the PPY service,
you must transmit an issue file to us on each day on which you have
issued any checks against any account that is included in your setup for
the PPY service. We must receive that issue file by the issue deadline
set forth in the PPY reference materials and it must contain all of the
information set forth in the PPY reference materials with respect to each
check you issued that day. You may send us a separate issue file for
each account, or you may send us an aggregate issue file for all of the
accounts that are included in your setup for the PPY service. Once we
have received your issue file, we will compare the information in that
issue file with the information in our systems with respect to checks
(A) that have been presented to us through normal check clearing
channels for payment against the relevant account and that we have
posted to the relevant account, and (B) for which we have provisionally
settled. You authorize us to finally pay and charge against the relevant
account, each check that matches the information in your issue file. We
will notify you of each presented check that is not included in the issue
file that we received from you or that reflects information that does not
TREASURY MANAGEMENT
TERMS AND CONDITIONS
then you will need to designate the OTM security administrator(s) and
OTM contact for each setup. For an OTM security administrator, OTM
contact or user to be authorized for more than one of your setups of the
OTM service, you must authorize that OTM security administrator, OTM
contact, or other user for each of those setups. An OTM security
administrator authorized for one or more of your setups is authorized
only to designate your users for those setups and grant those users
access to the accounts and services included in those setups of the
OTM service for any functionality or entitlement that is available in the
OTM service. The company identifier, or "company ID" will be different
for each of your setups of the OTM service, and to log on to a setup of
your OTM service, your OTM security administrator(s) and other users
will use their authorization codes for that setup. If you have more than
one setup of the OTM service, each service profile will be for the setup
of the OTM service that is identified by the company ID on that service
profile or if the service profile does not contain a company ID, the setup
of the OTM service for which we implemented the security administrator
named on that service profile or otherwise reflected in our records.
match the information in the issue file we received from you. The
checks that are not listed or for which the information does not match
are referred to as "mismatched checks." You must instruct us to pay or
return each mismatched check by the payment decision deadline set
forth in the PPY reference materials. Your instructions must contain all
of the information with respect to each mismatched check set forth in
the PPY reference materials. You may elect one of two ways for us to
deal with mismatched items if you fail to give us a pay or return decision
by the payment decision deadline. Under the "return default" option,
you authorize us to return unpaid each mismatched check unless we
receive an instruction from you to pay it before the payment decision
deadline. Even if you select a return default option, we may post, finally
pay and charge against the relevant account a mismatched check you
haven't decisioned (A) as otherwise provided below, for mismatched
checks presented over the counter in one of our branches and
(B) mismatched checks that we believe in good faith result solely from
encoding errors. Under the "pay default" option, you authorize us to
finally pay each mismatched check and charge it against the relevant
account unless we receive an instruction from you to return it before the
payment decision deadline. Your election of these options is reflected in
your PPY service profiles as they are in effect at the relevant time. We
may give you the option of not providing information in your issue file on
one or more check attributes (such as the payee name) that the PPY
service is capable of matching. Of course, not matching all available
check attributes increases the risk that a fraudulent check will not be
detected as a mismatched check. As a result, if you make the business
decision of not providing information in your issue file with respect to all
available check attributes, you agree that, in addition to the other limits
on our liability provided by the master agreement, the general terms and
conditions or these PPY terms and conditions, we will not be liable for
paying any check that is fraudulent with respect to the attributes for
which you failed to provide us information, so long as we otherwise
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satisfied our duty of care with respect to the other aspects of the PPY
service in processing that check.
(ii) Teller Access Service. As part of the PPY service,
we can also make your issue files available to our branches to assist our
tellers in cashing checks. This is referred to as "teller access." If a
check presented for payment over the counter in one of our branches
against an account that uses teller access (A) is presented before we
have received and processed an issue file for such check or (B) is a
mismatched check, we will attempt to obtain approval for payment of the
mismatched check by calling one of the people you have designated as
a "telephone representative" for the relevant account as reflected in your
PPY service profiles as they are in effect at the relevant time. We will
make one attempt to call each telephone representative for the relevant
account until we have reached one of them. Each telephone
representative is authorized to instruct us to pay or return any
mismatched check. If the telephone representative we contact instructs
us to pay the check, then you authorize us to finally pay the check and
charge it against the relevant account. If we are unable to contact a
telephone representative, or the telephone representative we contact
does not instruct us to pay the mismatched check, then you authorize us
to return the check unpaid to the person presenting it to us. Our
documentation showing that we contacted or attempted to contact your
telephone representatives will be conclusive evidence that we took the
reflected action. Fraud involving checks presented to tellers for cashing
is a common form of check fraud. Using our teller access service is a
good way to defend against that form of fraud and we strongly
encourage you to take advantage of it. However, use of the teller
access service is not mandatory and you may make a business decision
to opt out of its use. Of course, opting out of the service increases the
risk that a fraudulent check may be cashed over the counter in one of
our branches. As a result, if you make the business decision to not
name at least one telephone representative for each account for which
you have elected the PPY service, (A) this will be reflected on your PPY
service profiles as they are in effect at the relevant time, (B) you will be
deemed to have opted out of the teller access service for that account
and (C) you agree that we will not have any liability for paying any check
presented over the counter in one of our branches, whether or not such
check bears a forged or unauthorized signature or is counterfeit, altered
or otherwise fraudulent or not validly issued, so long as we otherwise
process that check in accordance with our standard check cashing
procedures.
(b) Reverse Positive Pay or "RPPY" Service Option. With the
RPPY service, we will provide you with information on all checks (i) that
have been presented to us through normal check clearing channels for
payment against the relevant account, (ii) that we have posted to the
relevant account, and (Ili) for which we have provisionally settled. You
must compare that information with your own information on checks that
you have issued from the relevant account. If you determine that a
check included in the information we provide should be returned, you
must notify us by the payment decision deadline set forth in the RPPY
reference materials. If we do not receive a notice from you to return a
check by the payment decision deadline, you authorize us to finally pay
and charge that check against the relevant account. If you select the
TREASURY MANAGEMENT
TERMS AND CONDITIONS
RPPY service option, then teller access is not available. As a result,
you agree that if you select the RPPY service for an account we will not
have any liability for paying any check that is presented over the counter
In one of our branches, whether or not such check bears a forged or
unauthorized signature or is counterfeit, altered or otherwise fraudulent
or not validly issued, so long as we otherwise process that check in
accordance with our standard check cashing procedures. Similarly, if
you select the RPPY service option, we may not provide you information
for all check attributes (such as the payee name) that the PPY service is
capable of matching. Of course, not matching all available check
attributes increases the risk that a fraudulent check will not be detected
as a mismatched check. As a result, you agree that, in addition to the
other limits on our liability provided in the master agreement, the general
terms and conditions or these RPPY terms and conditions, if you select
the RPPY service for an account, then we will not be liable for paying
any check that is fraudulent with respect to the attributes for which we
do not provide you information, so long as we otherwise satisfied our
duty of care with respect to the other aspects of the RPPY service in
processing that check.
3. Transmission of Information. We will transmit information
regarding mismatches (for the PPY service) and information regarding
checks that have posted to your account (for the RPPY service) to you
by using certain of our online services. You must transmit your issue
files (if you select the PPY service) and your pay or return decisions (for
both the PPY and RPPY services) to us by using certain of our online
services. Your issue files and pay or return decisions must be in a
format we have approved. If the relevant online service is not available,
then we will transmit the relevant information to you by facsimile at the
facsimile number listed for the relevant authorized representative in your
PPY or RPPY service profiles as they are in effect at the relevant time
and you must transmit your issue files andlor your pay or return decision
to us by facsimile at the facsimile number we specify.
4. Limits on Our Liability. You acknowledge that we will rely
completely on information and instructions you give us in providing the
PPY and RPPY services to you and that we are not required to inspect
any attribute of a check (other than those included in the relevant issue
file) that is processed through the PPY or RPPY service. As a result,
you agree that in addition to any limitations on our liability under the
agreement, we will not have any liability for (a) following instructions we
receive from any person we believe in good faith is one of your
authorized representatives or telephone representatives or (b) paying or
returning any check in accordance with these PPY and RPPY terms and
conditions, including any check that (1) bears a forged or unauthorized
signature or is counterfeit or otherwise not validly issued or (ii) is altered
or otherwise fraudulent with respect to an attribute that the PPY or
RPPY service is designed to match. Moreover, you acknowledge that
the PPY service is not a substitute for our stop payment service and you
agree not to report an item as "void" if you have released the item.
5. Suspension of Service. You agree that you will be in material
breach of these PPY and RPPY terms and conditions if you repeatedly
fail to meet any of the deadlines described in the PPY reference
materials or have an excessive number of checks not reported on your
issue file for the PPY service or for which the information is not
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TERMS AND CONDITIONS
consistent with our information on checks that have been presented have under this the agreement or applicable law, we may immediately
against the relevant account. In addition to any other rights we may suspend your use of the PPY or RPPY services.
Pre -Encoded Deposit Service
1. Description of the Service. The SunTrust pre -encoded
deposit or "PED' service allows you to facilitate the processing of your
check deposits by encoding certain information in the MICR line of each
check prior to making the deposit with us. You may use the PED
service with respect to the accounts that are identified in your PED
service profiles as they are in effect at the relevant time and that we
have included in our implementation of your setup for the PED service.
Details regarding PED's functionality and certain formatting and other
technical requirements that you must follow when using the PED service
are provided in the PED reference materials as we update them from
time to time.
2. Your Obligations in Making Deposits.
(a) You must encode, endorse and otherwise process all
checks in accordance with the requirements set forth in the PED
reference materials and place them in a sealed, disposable deposit
bag(s) or similarly designed tamper -proof bag(s) (each such bag is
referred to in these PED terms and conditions a "sealed deposit's that is
clearly marked with your name or identification number. Before you
begin using the PED service, you must designate (in a form acceptable
to us) the type of bag that you will use. You may not switch to another
type of bag without giving us at least 10 days' prior written notice. Each
sealed deposit must be prepared in accordance with the requirements
set forth in the PED reference materials. A deposit ticket listing your
name, deposit account number and the amount of checks must be
included in each sealed deposit.
(b) You must cause sealed deposits to be delivered to the
appropriate deposit location(s) that we separately disclose to you from
time to time. Delivery may be by mail, by your designated employees or
by a courier. Before you begin using the PED service, you must
designate (in a form acceptable to us) the delivery method you will use.
You may not switch to another delivery method without giving us at least
10 days' prior written notice.
(c) We may reject, impose a special fee on and/or delay
processing of any deposit if (1) the deposit ticket does not match the
amount of the deposit, (ii) the deposit was not prepared in accordance
with the requirements set forth in the PED reference materials, (iii) the
deposit is delivered to the wrong deposit location, (iv) the deposit is
delivered by a method other than the one you have designated, or
(v) any deposit bag appears to be unsealed or to have been tampered
with.
(d) In the event that we accept delivery of an unsealed
deposit bag or a deposit bag that appears to have been tampered with
(each such bag is referred to in these PED terms and conditions as an
"unsealed deposit"), we will give you notice on the day we receive it.
Unless you have previously given us instructions on how to process
unsealed deposits, we will not process or take any action regarding an
unsealed deposit until you give us an instruction (in a form acceptable to
us) regarding its disposition.
(e) If you are a financial institution, you act as the bank of
first deposit (BOFD) on all items you deposit with us. This will require
you to place a BOFD endorsement on each physical item deposited with
us. This endorsement must be in compliance with Regulation CC
regarding content and placement. As the BOFD, you are expected to
be the primary agent for resolution of all research items. As the BOFD,
your organization has total access to the clearing cycle of each item
deposited with us. As your clearing agent, we do not have access to all
of the returns information and as such we are less able to resolve all
research items. You may re -deposit indemnified copies of previously
missing items with us at any time through any depository channel.
3. Risk of Delivery. You are solely responsible for selecting the
method that you will use to deliver deposits to us, including all risks
relating to or arising out of that delivery method. We have no
responsibility or liability for a deposit until we accept possession of it at
the appropriate deposit location (as evidenced by the signature of one of
our authorized representatives on the courier's manifest or our issuance
of a receipt acknowledging receipt of the deposit). If you elect to use an
employee or a courier to deliver deposits to us, that employee or courier
must meet the requirements set forth in the PED reference materials
and otherwise be acceptable to us, in our sole discretion. If we
determine that your employee or courier does not meet those
requirements or is otherwise not acceptable to us in our sole discretion,
we may terminate your ability to use the PED service by giving you 10
days' notice, unless you have switched to another permitted delivery
method or selected a new employee or courier that is acceptable to us
within that 10-day period.
4. Our Obligations in Processing Deposits.
(a) We will open each sealed deposit, verify the contents
against the deposit ticket and deposit the checks to the relevant
account. We will process deposits within 24 hours of delivery to the
appropriate deposit location. If there is any discrepancy between the
total amount of the deposit reflected by you on the deposit ticket and the
amount of the deposit reflected by our count, our count will control. A
deposit adjustment notice will be sent to you on the day that the
discrepancy is discovered.
(b) The relationship of debtor and creditor will not exist
between you and us until we deposit the checks to your account
5. Cash and Other Property. The PED service is only designed
to work with checks. As a result, you agree that we have no liability for
coins, currency or other property placed in deposit bags. If we discover
coins or currency in a deposit bag, we will process it for deposit to the
relevant account and credit that account with the amount of cans or
currency reflected by our count (which will control in the event of a
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dispute). We will return any other property we discover in a deposit bag
to you.
6. Reconstruction. You agree to maintain an image of, or MICR
line information for, each check contained in a deposit to aid in
reconstruction of the deposit if it is lost in transit or otherwise. If you fail
to do so, we will have no liability if the deposit cannot be reconstructed.
7. Your Indemnity Obligations. In addition to any other obligation
you have to indemnify us, you agree to defend, indemnify, protect and
hold us harmless from and against any and all liabilities, claims,
damages, losses, demands, fines (including those imposed by any
Federal Reserve Bank, clearing house or funds transfer system),
Return Items Transmission ("RIT") Service
1. Description of the RIT Service. The SunTrust Return Items
Transmission, or "RIT," service allows you to receive a data
transmission of information on the checks and other paper items drawn
on domestic institutions that you have deposited into an account you
maintain with us and that were returned unpaid, each a "returned item."
You may use the RIT service with respect to the accounts that are
identified in the RIT service profiles, as the same may be in effect at the
relevant time, and that we have included in our implementation of your
setup for the RIT service. Details regarding RITs functionality and
certain formatting and other technical requirements that you must follow
when using the RIT service are provided in the RIT reference materials
as we update them from time to time.
2. Operation of the Service.
(a) Each banking day we will transmit or make available a
data file transmission of information from each returned item that had
been deposited into an account included in your setup for that
transmission for the RIT service and that was returned on the prior
banking day. For each returned item deposited in an account included
in your setup for a transmission, we will include in the data file the
returned item information you have selected from the information we
report through the RIT service to have reported for any returned item
deposited into that account. Your selection of what returned item
information to report for an account will be reflected in our
implementation forms. If on any banking day no returned items are
presented for any account included in your setup for a transmission, a
data file transmission will not be prepared for that day.
(b) Each RIT service data file transmission will be
transmitted through our Online File Transfer, or "OFT," service or
through the transmission means we may otherwise make available from
time to time and that you select. Your OFT contact for the setup of a
transmission must designate an authorized representative responsible
for receiving or retrieving your data file transmissions.
3. Securily Procedures. To retrieve or have us "push" to you
your data file transmission through the OFT service you are required to
Scannable Lockbox Service
TREASURY MANAGEMENT
TERMS AND CONDITIONS
judgments, disputes, costs, charges and expenses (including litigation
expenses, other costs of investigation or defense and reasonable
attorneys' fees) which relate in any way to any encoding error on a pre -
encoded check you deposit with us.
comply with the security procedure for the OFT service. In that regard,
you will retrieve your data file transmission after setup on the OFT
service by using the unique OFT user ID and password assigned to your
company for that setup of a transmission for the RIT service. If you
elect for us to "push" your data file transmissions to you through OFT or
by establishing a direct transmission, you must provide us the
information needed to access your computer system to deliver the files.
We will send the URL address and the user ID and password to the
person you designate as your OFT contact. You agree that these
security procedures are commercially reasonable for you. You are
completely responsible for controlling access to and maintaining the
confidentiality of the security procedures and authorization codes and
you must promptly report any breach of that confidentiality to us. You
are also completely responsible for the actions of your users to whom
we or your contact provides authorization codes and any other person
who has obtained access to your authorization codes. You represent
and warrant that you will maintain commercially reasonable security
procedures to prevent unauthorized access to or any misuse of the
information contained in the data file once you have receive the data file
transmission.
4. Multiple Setups of the RIT Service. If you have requested
that we implement for you more than one setup for a transmission for
the RIT service, a separate company identifier, or "client ID," number will
be assigned for each of those setups for the RIT service. If you have
more than one setup of the RIT service, each service profile will be for
the setup of the RIT service that is identified by the client ID on that
service profile.
5. Limitation of Liability Specific to the RIT Service. You
acknowledge that information from returned items may be manually
keyed into the RIT service data file. You also acknowledge that inherent
in the process of manual data entry are mistakes, typos and other
inadvertent errors. We do not warrant that any returned item
information reported will be error free, and we shall have no liability or
other responsibility for errors in any reported returned item information,
unless such errors are caused by our gross negligence or willful
misconduct.
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4 SUNTRUST
1. Description of the SLB Service. The SunTrust Scannable
Lockbox or "SLB" service is designed to facilitate the receipt and
processing of your accounts receivable remittances. Details regarding
SLB's functionality and certain formatting and other technical
requirements that you must follow when using the SLB service are
provided in the SLB reference materials as we update them from time to
time.
2. Implementation of the SLB Service. Once we have included
the account(s) identified in your SLB service profiles as they are in effect
at the relevant time in our implementation of your setup for the SLB
service, we will send you a copy of your initial lockbox operating
instructions for a particular lockbox number and will update those
instructions from time to time based on information you give us. To the
extent you elect to have us process items that are not accompanied by
coupons through our wholesale lockbox system, we will also give you a
copy of the instructions for that system. Once we send you a copy of
the initial instructions, we will begin providing the SLB service for you
with respect to the account(s) described In those instructions.
3. Reguest for Imgge Services. The Image services enable you
to view images of checks and remittance payment information that are
received through your lockbox. You can access these images and
transaction information through Image Browser, Image CD ROM and/or
Image Transmission Details regarding these services, their functionality
and certain requirements that you must follow when using the Image
services are provided in the Image reference materials as they are
updated from time to time. We will provide you one or more of the
following image service(s) for each lockbox as reflected in your SLB
service profiles as they are in effect at the relevant time:
(a) Image Browser - intemet-based access to your lockbox
images and data with flexible viewing parameters and search capability
for check and document information using a specific date or several
search criteria, administrative management over users and their access
privileges, Web -accessible historical data, exportable transaction
information, check and document images that can be emailed directly
from this Image service and annotation tools that can be used to create
notes or highlight information on check or document images that can be
saved for future reference. Batch Download, Full Text Search, Remitter
Keying capabilities and direct access to the image browser using
Lockbox Programmer Interface are also available as additional service
selections. You must designate (in a form that is acceptable to us) a
security administrator responsible for setting up and maintaining your
users' access to the Image Browser service. We will assign a unique
user -specific user ID and password to this designated security
administrator and enable access to Image Browser service for the
lockbox accounts which have been set up for you. This person has all
of the rights and responsibilities described in the general terms and
conditions. If you implement image archival services as part of your
Image Browser service and your Image Browser service is later
terminated, upon request from you, we can create a CD ROM of your
archived data and mail it to you.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(b) Image CD ROM - after delivery by mail, you have access
to your lockbox images along with index fields of information for long
term archival purposes. CD ROM of lockbox images can be downloaded
onto your computer. You must designate (in a form that is acceptable to
us) a security administrator responsible for using the software needed to
access the CD ROM of your lockbox images. The CD ROM will be
encrypted to protect your data during transit in the mail. We will provide
(by e-mail) a unique PIN number that your security administrator will use
to de -encrypt and access the CD ROM. This person has all of the rights
and responsibilities described in the general terms and conditions.
(c) Image Transmission file - customized access to your
lockbox images along with index fields of information that can be
downloaded directly into your Accounts Receivable systems. Image
Transmission files are encrypted and are transmitted using File Transfer
Protocol (FTP). You must designate (in a form that is acceptable to us)
a technical contact responsible for receiving or retrieving your Image
Transmission files. You will retrieve your Image Transmission files by
accessing a FTP site and by using the unique user ID and password
assigned to your company. If you elect for us to "push" your Image
Transmission files to you, you can provide us the information needed to
access your computer system to deliver the files. We will send the LIRL
address and the user ID and password to the person you designate as
your contact. This person has all of the rights and responsibilities
described in the general terms and conditions.
You agree that the security procedures for each of the Image services
you select are commercially reasonable.
4. Processina of Deposits. We will establish one or more post
office boxes or "lockboxes" in your name as described in your SLB
service profiles as they are in effect at the relevant time. On each
banking day after a lockbox has been established, we will process the
checks, drafts and money orders (all of which are referred to as "items")
received in a lockbox in accordance with the instructions in effect at the
relevant time and send you deposit advices for those items.
(a) Automated Processing System. We process items
through the use of automated systems. You must design your
remittance documents (which are referred to as "coupons") to include
supporting documentation containing the information required for us to
identify and validate items for automated processing. We will test the
performance of your coupons and will only begin providing the SLB
service to you only upon the satisfactory completion of the test.
(b) Items With Coupons. We will process items that are
accompanied by coupons automatically for deposit into the relevant
account. We will not inspect these items for payee name, drawer
signature, date, or for items and/or accompanying correspondence
containing "payment in full" or other similar payment dispute language.
We will not be liable for processing or depositing items without
inspecting them for issues relating to any of these attributes.
(c) Items Without Coupons. Items that are not accompanied
by coupons will be retumed to you or processed manually as directed in
the instructions. If we process items, we will use good faith efforts to
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inspect them as follows: (I) an item containing a payee name that does
not reasonably correspond with your acceptable payee list Of you have
given us one) will be handled in accordance with the instructions in
effect at the relevant time, and (ii) if an item contains inconsistent written
and numeric amounts, the item will be deposited for the written amount
unless the instructions that are in effect at the relevant time direct
otherwise. You agree that we do not fail to exercise good faith efforts to
inspect an item solely because we process it in a manner inconsistent
with this paragraph. We will not inspect @ any processed item for the
drawer's signature or date or (I!) unless otherwise agreed in writing and
in exchange for the payment of a separate per item fee, any processed
item and/or accompanying correspondence for "payment in full" or other
similar payment dispute language. We will not be liable for any loss
resulting from processing any such items, including any items we may
inspect for "payment in full' or similar payment dispute language under a
separate written agreement. As a part of processing an item, we will
enter data regarding certain aspects of an item (such as the drawer's
name and the account invoice number shown on the item) into the data
file you will receive. You agree that we will not be liable for good faith
errors in any of that data.
(d) Endorsement. We will endorse items for deposit with our
standard lockbox endorsement and deposit them to the relevant
account. We will not be liable for any loss relating to our failure to
endorse an item properly.
(e) Stop File. You may give us a file of items that you do not
want us to process. Your file must be in the format and contain the
information that we separately disclose to you from time to time with
respect to each item that you do not want us to process and we must
receive it a reasonable period of time before the items in question are
received in a lockbox. We will use good faith efforts to stop processing
items described in your file and return them to you, but we will not have
any liability if we process any such item.
(f) Forwarding Items. If you receive an item that should
have been delivered to a lockbox, you may forward it to our lockbox
department. We will process all such items (whether accompanied by a
coupon or not) automatically and without inspecting them. If you have
more than one lockbox, you must designate the lockbox through which
we should process the item.
(g) Cash and Other Property. We will deposit any cash
received in a lockbox into the relevant account. Any property other than
Smart Safe Daily Deposit Posting Service
1. Description of the Smart Safe Daily Deposit Posting Service.
The SunTrust Smart Safe Daily Deposit Posting or "SSDDP" service is
designed to facilitate your deposit needs by allowing you to include in
your daily cash vault deposit totals the amount of currency reported
electronically by a smart safe as having been accepted into that smart
safe. Your use of the SSDDP service is subject to the terms and
conditions for the cash vault service.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
items, cash and related remittance materials received in a lockbox will
be sent to you. You agree that we have no liability for any cash or other
property received in a lockbox.
(h) Data Files. On each banking day, we will make a data
file regarding the items processed in each lockbox that day available to
you through one of our online services. The data file will be in the
format and will contain the information described in the SLB reference
materials and the instructions in effect at the relevant time. We will
make this information available on each banking day by the reporting
time(s) disclosed in the SLB reference materials and the instructions in
effect at the relevant time.
5. Remittance Materials. We will destroy the coupons within five
business days after we receive them. We will only return
correspondence and other materials ("original remittance materials")
received in a lockbox to you if the instructions in effect at the relevant
time direct us to return those materials. We will destroy the original
remittance materials within five business days after we receive them.
Once we destroy the original remittance materials, the images of them
that we may capture during their processing will be the only source of
information about their contents. You agree that we will have no liability
for any missed image or if any image we capture is not legible.
6. Affiliate Deposits. If you have not given us an acceptable
payee list, you represent and warrant to us that you have the authority
to have each item received in a lockbox endorsed and deposited into
your account(s), even if the payee name on an item is not your name as
shown in our records. In addition, if you have given us an acceptable
payee list, you represent and warrant to us that if any name on that list
that is a separate legal entity (rather than merely a "d/b/a" or trade name
that you use), you have authority from that entity to have items payable
to it endorsed and deposited into your account(s). You agree to provide
us with satisfactory evidence of that authority upon request.
7. Return Items. Unless otherwise stated in the instructions, we
will handle dishonored or returned items in accordance with our rules
and regulations for deposit accounts in effect at the relevant time.
8. Termination. If these SLB terms and conditions or the
agreement is terminated, we will complete the processing of items we
received prior to the termination date. For a period of 90 days after the
termination date, we will forward all lockbox remittances to you or as
you may otherwise direct (in a form acceptable to us). After that time,
we will stamp all remittances "refused" and return them to the sender.
2. Definitions. The following terms have the specified meanings
for the purposes of these SSDDP terms and conditions:
(a) "Electronic feed" means an electronic file transmission
from a smart safe to the safe provider that services that smart safe
reporting the value of all currency accepted into that smart safe since
the last such electronic file transmission from that smart safe to such
safe provider.
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(b) "Electronic posting file" means an electronic file created
and transmitted to us by a safe provider, specifying by safe location the
total amount of currency accepted into all of your smart safes serviced
by such safe provider, based on the amounts reported by the electronic
feeds of those smart safes, since the last such electronic file was
created and transmitted to us by that safe provider.
(c) "Lo�yrrencd' means any currency dropped into the
drop slot of a smart safe for safekeeping, rather than being inserted into
the note acceptor on the safe for purposes of being accepted, counted
and reported by the smart safe. Loose currency dropped into the drop
slot is not deemed accepted by the smart safe, will not be counted by or
included in an electronic feed from the smart safe, and for purposes of
these SSDDP terms and conditions is not considered part of the
contents of the safe.
(d) "Smart safe" means an intelligent safe (and related
software and accessories) that can count, record and electronically
report the currency accepted into it and that is compatible with the
SSDDP service.
(e) "Safe location" means a location where you maintain a
smart safe and which we have agreed to include in our implementation
of your setup for the SSDDP service as reflected in our records as they
are in effect at the relevant time.
(f) "Safe provider" means a third -party armored courier or
other vendor that provides you a smart safe and with whom we have an
agreement regarding certain issues relating to your use of that smart
safe.
3. Smart Safe(s). To use the SSDDP service, you must obtain
one or more smart safes. You acknowledge that you will obtain each
smart safe directly from a safe provider and, as a result, all warranty
obligations and contracts are to be handled directly with that safe
provider. In no event will we be responsible for any aspect of the use or
maintenance of any smart safe or the acts or omissions of any safe
provider. You must identify (in a form acceptable to us) the safe
location and safe provider for each smart safe and may not change the
safe location or safe provider for a smart safe without giving us notice
(in a form acceptable to us) at least 5 business days before such
change takes effect.
4. Scheduled Pickups: Physical Dellvery. You must have the
contents of each smart safe picked up by the relevant safe provider at
least once each week. If a scheduled pick-up falls on a holiday for you
or that safe provider, the pick-up must occur on the next day that is a
business day for both you and that safe provider. You are solely
responsible for engaging the relevant safe provider as your armored
courier to deliver the currency contained in each smart safe to such safe
provider's processing site, count and verify the contents of the smart
safe, and deliver the currency to us. We have no responsibility or
liability for any currency contained in a smart safe until the relevant safe
provider delivers the currency to us by physically placing that currency
in our inventory held at such safe provider's processing site. Any loose
currency must be prepared, placed in a sealed, disposable deposit bag
and delivered by your armored courier to the appropriate vault location
in accordance with the terms and conditions for the cash vault service.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
5. Back-up Reports. Upon our request, you will provide back-up
information to verify the amount of currency deposited in each smart
safe, including copies of the content reports and your business records.
6. Electronic Posting: Cut-off Time. We will process an
electronic posting file and post the total amount of currency reported for
you in that electronic posting file to the account(s) included in your setup
of the SSDDP service which you designated, as reflected in our records
as they are in effect at the relevant time, as part of our nightly deposit
account processing on the night of our business day that we received
such electronic posting file. If we receive an electronic posting file from
a safe provider after the cut-off time on a business day that we
separately disclose to you from time to time, that electronic positing file
will be deemed to have been received by us on our next business day.
7. Provisional Credits: Adiustments: Discrepancies. You
acknowledge and agree that any credits posted to your account(s)
based on the amount of currency reported by a safe provider in an
electronic posting file are provisional. We may make adjustments to
your account(s), without prior notice to you, if the amount of the
currency delivered to us by a safe provider is different than the amount
reported in an electronic posting file or we otherwise do not receive all
currency for which you have been given a provisional credit. For
example, we may make adjustments to your account(s) if an electronic
feed over -reports the amount of the currency accepted into a smart
safe, if a safe provider misreports in an electronic posting file the
amount of currency reported in an electronic feed or if a smart safe or
the currency it contains are lost, stolen or destroyed before that
currency is physically placed in our inventory held at the relevant safe
provider's processing site. In addition to any other rights we may have,
if there are insufficient funds in the account(s) to cover any such
adjustment, then you agree to reimburse us on demand for the
remaining amount of such adjustment and you authorize us to set-off
the remaining amount of such adjustment against any other accounts
you have with us and contents of any smart safe. The contents of each
smart safe will be counted and verified by the relevant safe provider
prior to being physically placed in our inventory held at that safe
provider's processing site. We do not have any responsibility or liability
for any discrepancy between the amount of currency reported by any
smart safe and the amount of currency counted by the relevant safe
provider. If there is a discrepancy between the amount of the currency
reported by a smart safe and the count of that currency by the relevant
safe provider, the safe provider's count will control. Similarly, we do not
have any responsibility or liability for any discrepancy between the
amount of currency counted by the relevant safe provider and our count
of that currency. If there is a discrepancy between a safe provider's
count of currency in a smart safe and our count of the currency from that
smart safe that is physically placed in our inventory held at such safe
provider's processing site, our count will be final.
8. Ownership. Pick-up and Shortfalls of Currency. If we have
given you provisional credit on the basis of an electronic posting file,
then you agree that the currency contained in your smart safe(s) to
which that provisional credit relates is our property, and we may pick up
that currency at any reasonable time. You will take any actions we
reasonably request to assist us in picking up the contents from your
smart safe(s). If, notwithstanding your agreement that ownership of
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SU1V Ruff TERMS AND CONDITIONS
currency contained in a smart safe is transferred to us at the time we
provisionally credit your account(s) for that currency, it is ever
determined that you have any ownership or other rights in that currency,
then (a) you grant us a security interest in all your right, titre and interest
in such currency to secure all of your obligations to us with respect to
the SSDDP service and (b) you acknowledge that your safe provider is
acting as our agent solely for the purpose of taking possession of such
currency. Notwithstanding the foregoing, and except as provided in the
next sentence, you will still be liable for the loss of any currency from
any smart safe until the relevant safe provider physically places that
currency in our inventory held at such safe providers processing site. If
we pick up the currency held in a smart safe, then you will not be
responsible for the loss of that currency (as reflected in the contents
report generated by such smart safe at the time we pick up such
currency) once it has been delivered to us or our armored courier. You
will not make any demand or bring any claim, action or proceeding of
any kind against any of our armored couriers, including any safe
provider serving as our armored courier, related to any of those armored
couriers picking up the contents of a smart safe or otherwise following
our instructions with respect to the contents of a smart safe. If, at any
time, there is not enough currency in that smart safe to satisfy both our
claim to the amount of currency that is our property and your claim to
any additional currency that the smart safe reports has been accepted
into it, then the currency that is in such smart safe will be allocated first
to satisfy our claim in full before any such currency is allocated to satisfy
any part of your claim. This means that you will be responsible for any
currency shortfall in such smart safe. For example, if we have given you
provisional credit for $1,000 with respect to the currency that has been
accepted into a smart safe as reported in an electronic posting file and
the smart safe also reports that it has accepted an additional $500, then
the smart safe should contain a total of $1,500 in currency. If, however,
the smart safe contains only $1,200 at the time we pick up the currency
Tax Payment Service
1. Description of the TTAXpIus Service. The SunTrust Electronic
Tax Payment or "TTAXpIus®" service allows you to initiate federal and
state electronic tax payment entries through the automated clearing
house ("ACH"), which is a funds transfer system for sending and settling
electronic entries among participating financial institutions. Details
regarding functionality and certain requirements that you must follow
when using the service are provided in the TTAXpIus reference
materials, which are made a part of this agreement, as they are updated
from time to time.
2. Functioning of the TTAXpIus Service. Under the TTAXpIus
service, we act as the originating depository financial institution or
"ODFI" with respect to tax payment entries that you send us or that are
sent to us on your behalf for the Federal Tax ID Numbers that you have
identified (in a form acceptable to us) and we have included in our
implementation of your setup for the TTAXpIus service. Those tax
payments entries will be settled to the account that is identified in your
TTAXpIus service profile as it is in effect at the relevant time. You may
use the TTAXpIus service to send us state tax payment entries with
respect to any state tax authority supported by the service after you
have complied with our service requirements and the state enrollment
process. You will be the "originator" for each of those entries (as that
that is our property from that smart safe, we would be entitled to the full
$1,000 that is our property before you would be entitled to any currency.
As a result, you would be responsible for the entire currency shortfall
($300 in this example) and would only have a claim to the remaining
currency in such smart safe ($200 in this example). Moreover, if the
smart safe contains only $900 at the time we pick up the currency that is
our property from that smart safe, we would be entitled to the full $900
that is our property and we would also be entitled to an adjustment to
your account(s) and exercise any other rights and remedies we have
against you to recover the remaining $100 that is our property. You
would not be entitled to any currency in such smart safe in this example.
9. Cash Vault Service. These SSDDP terms and conditions are
expressly made a part of the terms and conditions for the cash vault
service and are subject to the terms and conditions for the cash vault
service. Terms that are defined in the terms and conditions for the cash
vault service have the same meanings when used in these SSDDP
terms and conditions. If there is any inconsistency on a particular issue
between these SSDDP terms and conditions and the terms and
conditions for the cash vault service, these SSDDP terms and
conditions will control. You understand and agree, however, that our
agreement to provide the SSDDP service does not permit you to use
any other aspect of the cash vault service unless we have agreed to
include it in our implementation of your setup for the cash vault service.
Your right to use the SSDDP service will terminate immediately upon
termination of your right to use the cash vault service.
10. Termination. We may terminate the SSDDP Service
immediately by giving you written notice of that termination. You may
terminate your use of the SSDD Service by giving us written notice of
that termination; provided that any termination by you will not be
effective until we have had a reasonable time to act on your notice.
term is defined in) and your use of the TTAXpIus service is subject to
and you are bound by the National Automated Clearing House
Association Rules and Operating Guidelines as in effect at the relevant
time.
3. Your Warranties. You represent and warrant to us that (i) you
will complete and return to us IRS Form 8655-Reporting Agent
Authorization and (ii) you will comply with all equivalent state tax
payment requirements. You agree to immediately notify us if any
representation or warranty you make to us is no longer true.
4. Origination and Processing of Entries. You must send all tax
payment entries to us by using the procedures set forth in the TTAXpIus
reference materials. You will fund all tax payments at least two
business days prior to the date established for us to process and settle
your tax payment entries and we may not process tax payment entries if
timely funding has not occurred. Failure to provide timely funding may
be deemed a material violation of this agreement. If we receive your
tax payment entries after the delivery deadline set forth in the TTAXpIus
reference materials, we will treat them as if we received them on our
next business day. We will format, process and settle to the account
identified in your TTAXpIus service profile as it is in effect at the relevant
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time, all tax payment entries that we receive from you in accordance
with the ACH Rules, this agreement and the TTAXplus reference
materials.
5. Security Procedures. The following security procedures apply
to all tax payment entries:
(a) Access Code. We will give you an authorization code
that the TTAXplus system may refer to as an access code. You must
use the access code (or your Tax Payment Identification Number) to
send us a tax payment entry for any Federal Tax ID Number that we
have included in your setup for the service.
(b) Password/PIN. We will give you another authorization
code that the TTAXplu$ system may refer to as a password or PIN.
Universal Payment Identification Code Service
1. Description of the UPIC Service. The SunTrust Universal
Payment Identification Code or "UPIC' service provides a unique
number assigned to one of your SunTrust demand deposit accounts,
which you can provide to your trading partners who make payments to
you through ACH. Your use of the UPIC service allows you to mask
your banking relationship and account number to reduce the risk of
fraudulent use of your account. Details regarding UPIC's functionality
and certain formatting and other technical requirements that you must
follow when using the UPIC service are provided in the UPIC reference
materials as we update them from time to time.
2. Roles under the UPIC Service. We will assign a separate
UPIC number to each of your eligible accounts that is identified in your
UPIC service profiles as they are in effect at the relevant time. Under
the UPIC Service, we act as the receiving depository financial institution
or "RDFI" with respect to UPIC entries that are sent to us on your behalf.
As a Receiver, you agree to comply with the National Automated
Clearing House Association "NACHA" Rules and to comply with any
Wholesale Lockbox Service
1. Description of the WLB Service. The SunTrust Wholesale
Lockbox or "WLB' service is designed to facilitate the receipt and
processing of your accounts receivable remittances. Details regarding
WLB's functionality and certain formatting and other technical
requirements that you must follow when using the WLB service are
provided in the WLB reference materials as we update them from time
to time.
2. Implementation of the WLB Service. Once we have included
the account(s) identified in your WLB service profiles as they are in
effect at the relevant time in our implementation of your setup for the
WLB service, we will send you a copy of your initial lockbox operating
instructions for a particular lockbox number and will update those
instructions from time to time based on information you give us. Once
we send you a copy of the initial instructions, we will begin providing the
WLB service for you with respect to the account(s) described in those
instructions.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Each password/PIN is uniquely linked to a particular Federal Tax ID
Number and for each Federal Tax ID Number you must use the
appropriate password/PIN for each particular tax payment entry you
want to send us.
The authorization codes are not user -specific. This means that all of
your authorized users must use the same set of authorization codes to
initiate a tax payment entry for a particular Federal Tax ID Number. We
will send all of the authorization codes to the person identified as your
"contact" in your TTAXplus service profile as it is in effect at the relevant
time. Your contact is then responsible for distributing the authorization
codes to your users. You agree that these security procedures are
commercially reasonable.
UPIC rules and procedures as adopted by The Clearing House
Payments Company L.L.C.
3. Eligible Accounts. The UPIC service may only be used for a
demand deposit account or other transaction account of a corporation,
partnership, limited liability company, or unincorporated association; the
United States or an agency of the United States, a state or local
government or an agency of a state or local government; or one or more
individuals when the account is used primarily for business purposes.
An account of one or more individuals used primarily for personal or
household purposes may not be used with the UPIC Service.
4. Use of UPIC Number. The UPIC number is only to be used
for incoming electronic ACH credits. You may provide the UPIC number
and the related universal routing number to your business trading
partners that wish to originate ACH credit entries to you. You represent
that you have not and will not authorize any person or entity to originate
any debit entries using the assigned UPIC number. We may terminate
your use of the UPIC service at any time.
3. Rgguest for Image Services The Image services enable you
to view images of checks and remittance payment information that are
received through your lockbox. You can access these images and
transaction information through Image Browser, Image CD ROM and/or
Image Transmission file. Details regarding these services, their
functionality and certain requirements that you must follow when using
the Image services are provided in the Image reference materials as
they are updated from time to time. We will provide you one or more of
the following image service(s) as reflected in your WLB service profiles
as they are in effect at the relevant time:
(a) Image Browser - intemet-based access to your lockbox
images and data with flexible viewing parameters and search capability
for check and document information using a specific date or several
search criteria, administrative management over users and their access
privileges, Web -accessible historical data, exportable transaction
information, check and document images that can be emailed directly
from this Image service and annotation tools that can be used to create
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notes or highlight information on check or document images that can be
saved for future reference. Batch Download, Full Text Search, Remitter
Keying capabilities and direct access to the image browser using
Lockbox Programmer Interface are also available as additional service
selections. You must designate (in a fort that is acceptable to us) a
security administrator responsible for setting up and maintaining your
users' access to the Image Browser service. We will assign a unique
user -specific user ID and password to this designated security
administrator and enable access to Image Browser service for the
lockbox accounts which have been set up for you. This person has all
of the rights and duties described in the general terms and conditions.
If you implement image archival services as part of your Image Browser
service and your Image Browser service is later terminated, upon
request from you, we can create a CD ROM of your archived data and
mail it to you.
(b) Image CD ROM - after delivery by mail, you have access
to your lockbox images along with index fields of information for long
term archival purposes. CD ROM of lockbox images can be downloaded
onto your computer. You must designate (in a form that is acceptable to
us) a security administrator responsible for using the software needed to
access the CD ROM of your lockbox images. The CD ROM will be
encrypted to protect your data during transit in the mail. We will provide
(by e-mail) a unique PIN number that your security administrator will use
to de -encrypt and access the CD ROM. This person has all of the rights
and responsibilities described in the general terms and conditions.
(c) Image Transmission file - customized access to your
lockbox images along with index fields of information that can be
downloaded directly into your Accounts Receivable systems. Image
Transmission files are encrypted and are transmitted using File Transfer
Protocol (FTP). You must designate (in a form that is acceptable to us)
a technical contact responsible for receiving or retrieving your Image
Transmission files. You will retrieve your Image Transmission files by
accessing a FTP site and by using the unique user ID and password
assigned to your company. If you elect for us to "push" your Image
Transmission files to you, you can provide us the information needed to
access your computer system to deliver the files. We will send the URL
address and the user ID and password to the person you designate as
your contact. This person has all of the rights and duties described in
the general terms and conditions.
You agree that the security procedures for each of the Image services
you select are commercially reasonable.
4. Processing of Deposits. We will establish one or more post
office boxes or "lockboxes" in your name as described in your WLB
service profiles as they are in effect at the relevant time. On each
banking day after a lockbox has been established, we will process the
checks, drafts and money orders (all of which are referred to as "items")
received in a lockbox in accordance with the instructions in effect at the
relevant time and send you deposit advices for those items.
(a) Endorsement. We will endorse items for deposit with our
standard lockbox endorsement and deposit them to the relevant
account. We will not be liable for any failure to endorse an item
properly.
TREASURY MANAGEMENT
TERMS AND CONDITIONS
(b) ForwardingItems. tens. If you receive an item that should
have been delivered to a lockbox, you may forward it to our lockbox
department. If you have more than one lockbox, you must designate
the lockbox through which we should process the item.
(c) Inspection of Items. We will use good faith efforts to
inspect items as follows: (I) an item containing a payee name that does
not reasonably correspond with your acceptable payee list (if you have
given us one) will be handled in accordance with the instructions in
effect at the relevant time, and (ii) if an item contains inconsistent written
and numeric amounts, then: (A) if the item is accompanied by an invoice
and one of the amounts is consistent with the invoice amount, the item
will be deposited for the invoice amount or (B) if (1) the item is
accompanied by an invoice and neither of the amounts is consistent
with the invoice amount or (2) the item is not accompanied by an
invoice, the item will be deposited for the written amount unless the
instructions that are in effect at the relevant time direct otherwise. You
agree that we do not fail to exercise good faith efforts to inspect an item
solely because we process it in a manner inconsistent with this
paragraph.
(d) Signature. Date or Disputed Items. We will not inspect
(1) any item for the drawer's signature or date or (ii) unless otherwise
agreed in writing and in exchange for the payment of a separate per
item fee, any item and/or accompanying correspondence for "payment
in full" or other similar payment dispute language. We will not be liable
for any loss resulting from processing any such items, including any
items we may inspect for "payment in full" or similar payment dispute
language under a separate written agreement.
(a) Cash and Other Prope ft We will deposit any cash
received in a lockbox into the relevant account. Any property other than
items, cash and related remittance materials received in a lockbox will
be sent to you. You agree that we have no liability for any cash or other
property received in a lockbox.
5. Remittance Materials. We will only return to you the original
remittance materials (such as invoices, payment coupons,
correspondence and the like) received in a lockbox if the instructions in
effect at the relevant time direct us to return those materials. We will
destroy the original remittance materials within 10 days after we receive
them. Once we destroy the original remittance materials, the images of
them that we may capture during their processing will be the only source
of information about their contents. You agree that we will have no
liability for any missing image or if any image we capture is not legible.
6. Affiliate Deposits. If you have not given us an acceptable
payee list, you represent and warrant to us that you have the authority
to have each item received in a lockbox endorsed and deposited into
your account(s), even if the payee name on an item is not your name as
shown in our records. In addition, if you have given us an acceptable
payee list, you represent and warrant to us that if any name on that list
that is a separate legal entity (rather than merely a "d/b/a" or trade name
that you use), you have authority from that entity to have items payable
to it endorsed and deposited into your account(s). You agree to provide
us with satisfactory evidence of that authority upon request.
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7. Return items. Unless otherwise stated in the instructions, we
will handle dishonored or returned items In accordance with our rules
and regulations for deposit accounts in effect at the relevant time.
8. Termination. If your use of the WLB service or the agreement
is terminated, we will complete the processing of items we received prior
to the termination date. For a period of 90 days after the termination
date, we will forward all lockbox remittances to you or as you may
otherwise direct (in a form acceptable to us). After that time, we will
stamp all remittances "refused" and return them to the sender.
Wire Transfer Service
1. Description of the Wire Transfer Service. The SunTrust Wire
Transfer service is a funds transfer system that is available over the
Internet through certain designated online services or dedicated
telephone lines for sending and settling payment orders among
participating financial institutions. You may use the Wire Transfer
service with respect to the accounts and authorized senders that you
have identified (by your confirmation of a Wire Schedule A and H
Service Profile and acceptance of the SunTrust Funds Transfer
Agreement) and that we have included in our implementation of your
setup for the Wire Transfer service. Details regarding the SunTrust
Funds Transfer Agreement are provided as an addendum to these
Terms and Conditions as we update them from time to time. In the
event of any conflict between these Terms and Conditions and the
SunTrust Funds Transfer Agreement, the Agreement will prevail.
Zero Balance Account Service
1. Description of the ZBA Service. The SunTrust Zero Balance
Account or "ZBA" service allows you to manage your cash flow by
aggregating debit and credit entries from one or more zero balance or
'subsidiary" accounts to a master account on a daily basis.
2. Daily Posting and Funding. You may use the ZBA service
with respect to the subsidiary accounts, master accounts any
supermaster accounts (if any) reflected in your ZBA service profiles as
they are in effect at the relevant time and that we have included in our
implementation of your setup of the ZBA service. At the end of each
banking day; we will transfer all debit and credit entries that were posted
to a subsidiary account that banking day to the master account for that
subsidiary account as identified in your ZBA service profiles as they are
in effect at the relevant time, so that each subsidiary account has a zero
ledger balance (or the target ledger balance, if any, indicated for that
subsidiary account in your ZBA service profiles as they are in effect at
the relevant time) at the end of each banking day. We will do this by
posting to the relevant master account a single debit entry equal to the
total amount of all checks, drafts, withdrawals and other debits (if any) in
each subsidiary account, and a single credit entry equal to the total
amount of all deposits, transfers and other credits (if any) in each
subsidiary account or, at your option, we will post to the relevant master
account a single entry equal to the net debit or credit activity in each
subsidiary account. When we post these entries to a master account,
we will also post offsetting entries to the relevant subsidiary account.
You agree to maintain sufficient available balances at all times in each
TREASURY MANAGEMENT
TERMS AND CONDITIONS
2. Designation of Authorized Senders. In order to use the Wire
Transfer service, you must designate person(s) as Authorized Senders
who will initiate and verify payment orders and provide instructions with
respect to any authorized account. These persons will have all of the
rights and responsibilities described in the SunTrust Funds Transfer
Agreement and will be identified in your Wire Transfer service profiles
as they are in effect at the relevant time.
3. Security Procedures. The security procedures for the Wire
Transfer service include the requirement that your Authorized Senders
use the PIN codes that we will assign as described in the SunTrust
Funds Transfer Agreement. You agree that these security procedures,
as defined in the SunTrust Funds Transfer Agreement are commercially
reasonable.
master account identified in your ZBA service profiles as they are in
effect at the relevant time to cover any debit activity (and any target
ledger balances) of all subsidiary accounts funded by that master
account as well as any debits presented directly against that master
account. We are not obligated to pay checks, drafts, withdrawal
requests or other debits presented against a master account or a
subsidiary account unless there are sufficient available funds on deposit
in the applicable master account. You agree that we may fund
subsidiary account activity from the applicable master account identified
in your ZBA service profiles as they are in effect at the relevant time
whether or not the ownership and/or authorized signers of the subsidiary
account are the same as those for the master account.
3. Super Master Accounts. If you have identified one or more
super master accounts in your ZBA service profiles as they are in effect
at the relevant time, any master account funded by the super master
account will be treated as a subsidiary account of that super master
account.
4. Duration and Changing of Options. Once you have confirmed
a service profile for this service and we have included the information
from it in our implementation of your setup for the ZBA service, we will
post the total of all debits and the total of all credits (or, at your option,
the net amount of all debits and credits) from each subsidiary account to
the relevant master account in accordance with the selections reflected
in that service profile for this service until (a) your use of the ZBA
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service or the agreement is terminated or (b) you confirm a ZBA service
profile that adds, deletes or modifies your previous selections and we
have had a reasonable time to act on it before we receive the relevant
debits or credits.
5. Termination of Service. We may terminate the ZBA service
immediately by giving you notice of the termination. You may terminate
Funds Transfer Agreement
This SunTrust Funds Transfer Agreement, the terms and conditions
of which are set forth below, shall govern all funds transfers between
Bank and Customer.
1. Definitions. The following are defined terms:
Account means the account(s) designated by Customer on its
Schedule A to this Agreement (as superseded from time to time by
Customer as provided herein) to be used as the source of payment for
Payment Orders.
Authorized Sender means a person designated by Customer on
its Schedule A to this Agreement (as superseded from time to time by
Customer as provided herein), authorized to submit and/or verify
Payment Orders and Instructions to Bank.
Bank means the SunTrust Bank(s) where the Account is
maintained, its/their successors and assigns.
Confirmation means any notice (oral, written, electronic, or
otherwise) informing Customer of the date and amount of each Transfer
to or from an Account.
Customer means the individual who or entity which signed
Schedule A to this Agreement.
Instructions means the Transfer related directions given by an
Authorized Sender to Bank, including amendments or cancellations of
Payment Orders.
Payment Order means a request (oral, written, or electronic) from
an Authorized Sender directing Bank to initiate a Transfer from an
Account.
International Payment Order means a Payment Order in which
the beneficiary's bank is located outside of the United States.
PIN means the personal identification number assigned by Bank to
each Authorized Sender.
Repetitive Transfers mean Transfers initiated by Payment Orders
in which the debit and beneficiary information designated by Customer
on its Schedule B to this Agreement (as amended from time to time by
Customer) remains constant, but the date and dollar amount vary.
Standing Order Transfers mean Transfers made as ordered by
Customer on its Schedule D to this Agreement (as amended from time
to time by Customer) in which the debit and beneficiary information
remain constant, but the date and dollar amount may vary.
Statement means Customer's periodic Account statement.
Transfer means a transfer of funds by Fedwire, SWIFT, telex,
computer terminal, electronic, or other means, including Repetitive
TREASURY MANAGEMENT
TERMS AND CONDITIONS
the ZBA service by giving us notice of the termination, provided that any
termination by you will not be effective until we have had a reasonable
time to act on your notice.
Transfers and Standing Order Transfers, but excluding transfers made
through the ACH system, as defined by the operating rules of the
National Automated Clearing House Association.
Test Key means a method for detecting errors in the amount of a
Payment Order through codes, mathematical equations, identifying
words, or numbers.
2. Authorized Sender.
Authorized Senders may provide Payment Orders and Instructions
to Bank with respect to any authorized Account. If Customer desires to
revoke or modify the authority of any Authorized Sender or add
additional Authorized Senders, Customer shall execute and deliver to
Bank a new Schedule A which shall supersede its prior Schedule A and
revoke all prior authorizations. In addition to listing new Authorized
Senders, any subsequent Schedule A must list all Authorized
Senders designated on its prior Schedule A and state whether or
not there is any revocation or change of authority for each
previously listed Authorized Sender. Bank shall have no liability for
any loss arising from Customer's failure to provide information revoking
or changing an Authorized Sender's authority in the manner stated
above. Any new Schedule A shall not be effective until accepted by
Bank and Bank has had a reasonable time to act upon it.
3. Form of Instructions.
Bank may act upon Payment Orders or Instructions. Any Payment
Order or Instruction which does not comply with Bank's procedures or
which exceeds the available balance of the funds on deposit in an
Account may be canceled from Bank's wire system without notice to
Customer or liability to Bank.
Special Instructions. Customer may elect to authorize Repetitive
Transfers on its Schedule B and Standing Order Transfers on its
Schedule D to this Agreement. Bank's assignment, if any, of a repetitive
code for Repetitive Transfers is not a security procedure and will not be
used as such.
Electronic Instructions. If Bank accepts Customer's election to
initiate Payment Orders and Instructions from Customer's electronic
access system, Customer shall be responsible for the security and
confidentiality of Customer's system and for the accuracy and
completeness of any data received by Bank. Bank will not verify any
electronically initiated Transfer.
4. Confirmations and Duty to Report Errors.
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The date and amount of each Transfer are described on the
applicable Statement Subject to the charges referenced in Paragraph
12, herein, Bank may also deliver Confirmations to Customer at the
address, telephone/facsimile number or other communications system
specified by Customer. Customer may elect on its Schedule E to this
Agreement, to receive facsimile Confirmations. A Customer initiating
Transfers from its electronic access system may receive on-line
Confirmation of each Transfer. Bank will not deliver next day notice of
receipt of incoming Transfers. Customer shall examine upon receipt, but
in no event later than 30 days after receipt, any Statement or
Confirmation (whichever first occurs) and notify Bank of errors, if any.
Failure to notify Bank of any error within such 30 day time period shall
relieve Bank of all liability for the Transfers reflected in such Statement
or Confirmation.
5. Amendment or Cancellation of Payment Orders.
Any Instruction canceling or amending a Payment Order is not
effective unless Bank has received such Instruction at a time and in a
manner affording Bank a reasonable opportunity to act before making
the Transfer. If an Authorized Sender requests that Bank attempt to
recover transferred funds, Customer may be required to deposit funds
with Bank or provide other payment assurances that are satisfactory to
Bank to cover the cost, expense, charges, and/or attorneys' fees
incurred by Bank in its recovery attempt. Bank's attempt to recover
funds shall not be an acceptance of responsibility for the completed
Transfer. Bank does not guarantee the recovery of all or any part of a
Transfer.
6. Deadlines.
Bank shall establish deadlines for the receipt of Payment Orders
and Instructions, including cancellations and amendments. Payment
Orders and Instructions received after the deadline shall be treated as
received on the next business day. Bank may, in its sole discretion,
execute Payment Orders received after the deadline on that same
business day only as an accommodation to Customer.
7. Security Procedures.
Acknowledgment and Amendment. Customer acknowledges that
the Bank's security procedures are commercially reasonable. Bank
reserves the right to change the security procedures from time to time.
PINS. Bank shall assign a PIN to each Authorized Sender which
must be used each time an Authorized Sender makes or verifies
Transfers or provides Instructions. Customer shall be responsible for
maintaining the confidentiality of the PINs and shall promptly report any
breach of confidentiality to Bank.
Verification. Bank may, in its sole discretion, verify or authenticate
any Payment Order or Instruction by contacting Customer by telephone
or by any other means deemed reasonable by Bank, but Bank is under
no obligation to do so. If Bank is unable to verify or authenticate a
Payment Order or Instruction, it is within the Bank's sole discretion to
either effect or refuse such Payment Order or Instruction. Bank will not
verify any Transfer initiated electronically.
Test Kev. Bank may upon Customer's written request, provide a
Test Key for detecting errors in the amount of a Payment Order. If
Customer elects to use a Test Key, any Payment Order which passes
the Test Key shall be deemed correct as to amount Bank and Customer
TREASURY MANAGEMENT
TERMS AND CONDITIONS
acknowledge that no other error detection procedure for dollar amount
verification has been established.
S. Recording.
Customer consents to Bank recording telephone calls, including,
without limitation, Payment Orders and Instructions. Customer assumes
the responsibility for obtaining the consent of the Authorized Senders for
these recordings. The recordings made shall be conclusive confirmation
of Payment Orders and Instructions. Customer acknowledges that not
all calls will be recorded.
9. International Transactions.
International Payment Orders. If Bank receives a U.S. Dollar -
denominated International Payment Order, then (except as provided in
the next sentence) Customer hereby instructs Bank to either.
(a) convert the amount of such International Payment Order into
the currency (the 'Conversion Currency") of the country in which the
beneficiary's bank is located (at Bank's sale rate for the Conversion
Currency in effect on the date Bank executes such International
Payment Order), execute such International Payment Order by issuing a
payment order for the corresponding amount of the Conversion
Currency and forward to the beneficiary's bank the relevant currency
conversion data; or
(b) execute such International Payment Order by issuing a U.S.
Dollar -denominated payment order in the amount of such International
Payment Order to an intermediary bank and instruct such intermediary
bank to convert the amount of such payment order into the Conversion
Currency (at such intermediary bank's sale rate for the Conversion
Currency in effect on the date such intermediary bank executes such
payment order).
Bank will not convert (or instruct an intermediary bank to convert) a
U.S. Dollar -denominated International Payment Order into the
Conversion Currency if (1) such International Payment Order specifies
an intermediary bank, (2) the amount of such International Payment
Order exceeds an amount (the "Conversion Cap") specified by Bank
and in effect on the date it executes such International Payment Order,
(3) the Conversion Currency is not a currency (an 'Eligible Currency")
specified by Bank as one into which it will convert U.S. Dollar -
denominated International Payment Orders on the date Bank executes
such International Payment Order, (4) Customer gives an Instruction (a
"No -Conversion Instruction") along with such International Payment
Order that it is not to be converted into the Conversion Currency or (5)
such Intemational Payment Order is subject to an opt out election for
automatic currency conversion as reflected on a Schedule H to this
Agreement (if any) that is in effect on the date Bank executes such
International Payment Order.
Bank's experience is that a very high percentage of U.S. Dollar -
denominated International Payment Orders are converted into the
Conversion Currency by the beneficiary's bank before being made
available to the beneficiary. Bank believes the conversion of U.S. Dollar -
denominated International Payment Orders into the Conversion
Currency before they are executed by Bank may offer several benefits
to Customer and/or the beneficiary, including earlier conversion, better
exchange rates and expedited availability of funds. However, Customer
is solely responsible for determining if the conversion of a U.S. Dollar -
denominated International Payment Order into the Conversion Currency
is consistent with Customer's contractual and other obligations to the
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beneficiary. If such conversion is not consistent with those obligations,
Customer should give Bank a No -Conversion Instruction along with the
Intemational Payment Order. Moreover, if Bank receives a demand from
the beneficiary or the beneficiary's bank for reimbursement of sums
relating to the conversion of a U.S. Dollar -denominated Intemational
Payment Order, Bank will seek an Instruction from Customer as to
whether Bank should remit those sums to the beneficiary's bank (in
which event, they will be charged to the Account).
Information regarding the current Conversion Cap and Eligible
Currencies may be obtained by contacting Bank. In that regard, Bank
may determine the Eligible Currencies without regard to whether it
trades those currencies generally. If Customer desires to ensure that
Bank executes an Intemational Payment Order in a currency other than
U.S. Dollars, then Customer should denominate that Intemational
Payment Order in the desired currency.
If Bank receives an Intemational Payment Order that is
denominated in a currency other than U.S. Dollars, Bank will convert the
funds from the Account into the requested currency (at Bank's sale rate
for that currency in effect on the date Bank executes such Intemational
Payment Order). Any returned funds will be converted by Bank into U.S.
Dollars at Bank's then current buy rate for that currency on the day of
return. Bank shall not be liable for any resulting exchange losses. if, as
a result of the exchange rate, excess funds have been remitted, such
funds will be returned to the Account less the exchange costs.
Customer hereby instructs Bank that it may (a) obtain payment of
its charges for services and expenses in connection with the execution
of an Intemational Payment Order by issuing a payment order in an
amount equal to the amount of that Intemational Payment Order less
the amount of the charges and (b) instruct any subsequent receiving
bank to obtain payment of its charges in the same manner.
10. Name and Account Number Inconsistency.
Customer shall ensure the accuracy of its Payment Orders and
Instructions. If a Payment Order inconsistently describes the beneficiary,
beneficiary's bank, or intermediary bank by name and number, payment
might be made by the intermediary or beneficiary's bank on the basis of
the number even if the number identifies a person or bank other than
the named beneficiary or bank. Customer shall be responsible for any
loss associated with such inconsistency.
11. Liability.
Duty of Reasonable Care. Bank shall exercise good faith and
reasonable care in performing the services provided for in this
Agreement. Customer shall exercise good faith and reasonable care in
observing and maintaining security procedures, in communicating
Payment Orders and Instructions to Bank and in reviewing Statements
and Confirmations for errors.
Limitation of Liability. Bank shall only be liable as provided by
applicable law for any error or delay and shall have no liability for not
effecting a Transfer if: (a) Bank receives actual notice or has reason to
believe that Customer has filed or commenced a petition or proceeding
for relief under any bankruptcy, insolvency, or similar law; (b) the
ownership of the funds to be transferred or the Authorized Sender's
authority to do so are in question;
(c) Bank suspects a breach of the security procedures; (d) Bank
suspects that the Account has been used for illegal or fraudulent
purposes; (e) Bank attempts to verify a Payment Order and is unable to
TREASURY MANAGEMENT
TERMS AND CONDITIONS
do so;(f) Customer does not have available funds to effect the
Transfer,(g) Bank reasonably believes that a Transfer is prohibited by
federal law or regulation, including, but not limited to, those promulgated
by the Office of Foreign Assets Control/Department of the Treasury; or
(h) otherwise so provided in this Agreement.
Customer will hold Bank harmless: (w) if Bank ads in accordance
with Payment Orders and Instructions, including, but not limited to,
amendments or cancellations; (x) if Bank attempts to recover funds
upon the request of an Authorized Sender; (y) for any loss resulting from
the unauthorized access to or use of PINs, or (z) for any matters
referenced in this Agreement for which Customer has responsibility.
Any damages or other compensation due Customer resulting from
Bank's negligence shall be limited to interest on the funds at issue at the
federal funds rate paid by Bank at the close of business on each day the
error or delay remains uncorrected; provided, however, if Bank is unable
to recover the funds from the transferee who has no claim to all or any
portion of the funds erroneously transferred as a result of the Bank's
negligence, Bank shall be liable for Customer's actual loss, not to
exceed the amount of funds which Bank is unable to recover, plus
interest at the rate described above. Bank shall not be responsible for
any loss, damage, liability, or claim, arising directly or indirectly, from
any error, delay, or failure to perform any of its obligations hereunder
which is caused by fire, natural disaster, strike, civil unrest, any
inoperable communications facilities, or any other circumstance beyond
the reasonable control of the Bank. In no event shall Bank be liable to
Customer for indirect, consequential, special, punitive, or exemplary
damages.
12. Fees.
Customer shall pay all fees and charges which Bank may, from
time to time, impose for the performance of services provided in this
Agreement. In addition, Customer shall reimburse Bank for all out-of-
pocket expenses incurred by Bank in effecting Payment Orders and
Instructions, including cancellations, amendments and attempted
recoveries.
13. Notices.
Oral notices, Instructions, directions, Confirmations, verifications, or
other oral communications with respect to Transfers and this Agreement
shall be given, if to Bank, to Customer's assigned relationship manager,
and, if to Customer, to the telephone number provided by Customer on
its Schedule A to this Agreement. Written notices, Instructions,
directions, Confirmations, verifications, or other written communications
with respect to Transfers and this Agreement shall be sent, if to Bank, at
the Bank's address on the Statement, and if to Customer, at the address
provided by Customer on its Schedule A to this Agreement. Ether party
may change its telephone number or address by giving written notice to
the other party.
14. Applicable Law, Jurisdiction and Account Agreement.
This Agreement is subject to all applicable Federal Reserve Bank
operating circulars and any other applicable provisions of Federal law. If
Bank uses Fedwire to effect a Transfer, Federal Reserve Board
Regulation J, Subpart B shall apply. Except as so provided, this
Agreement shall be governed by and interpreted in accordance with the
laws of the state in which the Account is located. Customer consents to
the jurisdiction and venue of any court located in such state, selected by
Page 62 of 63
00 Svnfihusr
Bank in its sole discretion. The parties agree that, in the event of a
dispute, they will submit same to mediation prior to any legal action. The
terms and conditions of any schedule, account agreement, signature
card, authority, and the Bank's Rules and Regulations for Deposit
Accounts are incorporated herein by reference. If any conflict or
inconsistency exists between the terms and conditions of this
Agreement and any of the above, this Agreement shall control.
15. Jury Trial Waiver.
Customer and Bank hereby knowingly, voluntarily, intentionally,
and irrevocably waive the right either of them may have to a trial by
jury in respect to any litigation, whether in contract or tort, at law
or in equity, based hereon, or arising out of, under or in connection
with this Agreement and any other document or Instrument
contemplated to be executed in conjunction herewith, or any
course of conduct, course of dealing, statements (whether verbal
or written) or actions of any party hereto. This provision is a
material inducement for Bank entering into this Agreement.
Further, Customer hereby certifies that no representative or agent
of Bank, or Bank's counsel, has represented, expressly or
otherwise, that Bank would not, in the event of such litigation, seek
to enforce this waiver of right to jury trial provision. No
representative or agent of Bank, or Bank's counsel has the
authority to waive, condition, or modify this provision.
16. Amendment and Termination.
This Agreement may be amended by Bank from time to time by
written notice to Customer. Any use of services provided hereunder
after Customers receipt of the notice shall constitute acceptance of the
terms of the amendment. Either party may terminate this Agreement by
giving at least 30 days prior written notice to the other party. Bank may
terminate this Agreement immediately, without prior notice to Customer,
if: (a) the Account(s) has no annual activity or has been dosed; (b) Bank
suspects a breach of Customer's security procedures; (c) Bank receives
actual notice or has reason to believe that Customer has filed or
commenced a petition or proceeding for relief under any bankruptcy,
insolvency, or similar law; or (d) Bank suspects that the Account(s) have
been used for illegal or fraudulent purposes.
17. Miscellaneous.
This Agreement shall be binding upon and inure to the benefit of
the parties, their legal representatives, successors, and assigns, by
merger or otherwise. If any provision of this Agreement shall be
declared invalid or unenforceable, said provision shall be ineffective to
the extent it is invalid, without in any way affecting the remaining
provisions of this Agreement.
Client Name: City of Ld
SunTrust Bank
prized Signer.
Name:
Authorized Signer. .: L ( /
Print Name: Igilio, v
Print Title:
Date: defary-;-p6�3
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Wny �gj W J'a Page i33 of 63
Lease Number: 05049
Equipment Schedule: 004
PAYMENT REQUEST FORM NO.3
SUNTRUST BANK, as Escrow Agent under an Escrow Agreement dated as of December 15, 2010 (the "Escrow Agreement")
by and among the Escrow Agent, SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor, and CITY OF
LONGWOOD, FLORIDA, as Lessee, is hereby requested to pay, from the Equipment Acquisition Fund, to the person or entity
designated below as payee, that amount set forth opposite each such name, in payment of the Acquisition Costs of the Equipment
designated opposite such payee's name and described on the attached page(s). The terms capitalized in this Payment Request Form but not
defined herein shall have the meanings assigned to them in the Escrow Agreement.
Payee
SunTrust Equipment Finance & Leasing
The Lessee hereby certifies that:
Amount Eauipment
S 1,200.00 Administrative Fee for 12 month Extension
1. Attached hereto is a duplicate original or certified copy of the following documents relating to the order, delivery and
acceptance of the Equipment described in this Payment Request Form: (a) a manufacturer's or dealer's invoice; and (b) unless this
Payment Request Form relates to partial payment of a Vendor, as defined in the Lease, in connection with a purchase order approved by
Lessor, Lessee's Acceptance Certificate relating to the Equipment.
2. The representations and warranties contained in the Lease are true and correct as of the date hereof.
3. No Non -Appropriation or Event of Default, as each such term is defined in the Lease, or event which with the giving of
notice or passage of time or both would constitute an Event of Default, has occurred.
Dated: April 8 , 2013_
CITY OF LONGWOOD, FLORIDA,
Lessee
By cJ{
Name: Brian D. Sackett
Title: Mayor
Date: Al2ril8.2013
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.,
Lessor
By
Name:
Title: _
Date:
111114116
SUNTkUsr
SunTrust Eguiproent Finance & Leasing Corp.
300 E. Joppa Road, Suite 700
Towson, Maryland 21286
Phone (410) 307-6749
Fax: (410) 307.8885
April 05, 2013
Pamela Barclay
Longwood, FL, City of
175 West Warren Avenue
Longwood, Florida 32750
Elsie Fabrick
Collateral and Support Service Specialkst 2
Nsle.fabrkk@suntrustcom
RE: Master Lease Agreement, Lease No. 05049-004 dated December 15, 2010, between
SunTrust Equipment Finance & Leasing Corp., and Longwood, FL, City of (the
"Agreement")
Dear Ms. Barclay:
This letter shall act as Lessor's written approval of your request to extend the above -referenced escrow
account ( "Account") for the period of April 6, 2013 to April 6, 2014, ("Closing Date") upon the
following terms and conditions:
- Lessee shall be assessed a $1,200.00 administrative fee in order to effectuate the extension;
- The current principal balance in the Account is $46,950.08;
If a balance remains in the Account after the Closing Date, the Account shall be closed by
Lessor;
Pursuant to Section 3.4 of the Agreement, upon closing the account, Lessee shall be
assessed a 2% fee (the "Fee") of the remaining principal balance;
After deducting the Fee, the remaining principal balance in the Account shall be applied to
Lessee's account balance with Lessor; and
Any interest earned in the Account shall be returned to Lessee.
Please sign below acknowledging that you agree to the terms stated in this letter. Should you have any
questions or need any further information, do not hesitate to contact me directly at (410) 307-6749 .
Sincerely yours,
E 'C'
4,uz-, � Oinv-1k
Elsie Fabrick
Collateral and Support Service Specialist 2
Letter to Pamela Barclay
April 05, 2013
Page Two
Please review the terms contained herein and, if acceptable to Lessee, please execute where indicated
below and return an executed original along with a Payment Request Form authorizing SunTrust
Equipment Finance & Leasing Corp to deduct the $1,200.00 administrative fee from the Account within 10
(ten) business days.
I HAVE REVIEWED THE TERMS AND CONDITIONS HEREIN AND ON BEHALF OF
Longwood, FL, City of, AGREE TO THE TERMS AS WRITTEN.
Longwood, FL, City of
Lessee
By.
Z
N: J•w, C. t i
Title: 0-,Ty AoMsN6sTxAT*R-
Date: 4 8.2013
CITY OF LONGWOOD, FLORIDA
INDEX TO LEGAL DOCUMENTS
BANK -QUALIFIED ESCROW
First Amended Master Lease Agreement No. 05049. Dated as of December 15, 2010; ON FILE
Exhibit A - Equipment Schedule No. 05;
Acceptance Certificate;
Payment Schedule;
Exhibit B-1 - Tax Agreement and Arbitrage Certificate;
Exhibit C-1 - Ordinance of Governing Body;
Exhibit D - Incumbency Certificate;
Exhibit E - Opinion of Counsel;
Exhibit F - Escrow Agreement, with its Schedule I and Exhibit A;
Exhibit G-1 Confirmation of Outside Insurance;
Exhibit G-2 Questionnaire for Self -Insurance to Lease and Addendum;
Form 8038-G or 8038GC.
EXHIBIT A
EQUIPMENT SCHEDULE NO.05
TO LEASE NO.05049
The following Equipment comprises an Equipment Group which is the subject of the First Amended Master Lease Agreement
dated as December 15, 2010 (the "Agreement") between the undersigned Lessor and Lessee. The Agreement is incorporated herein in its
entirety, and Lessee hereby reaffirms each of its representations, warranties and covenants contained in the Agreement. Lessee warrants
that no Non -Appropriation and no Event of Default, or event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default, has occurred under the Agreement. An Acceptance Certificate and Payment Schedule are attached to this
Equipment Schedule and by reference are made a part hereof. The terms capitalized in this Equipment Schedule but not defined herein
shall have the meanings assigned to them in the Agreement.
EQUIPMENT GROUP
The cost of the Equipment Group to be funded by Lessee under this Lease is $480,000.00 (the "Acquisition Cost"). The
Equipment Group consists of the following Equipment which has been or shall be purchased:
Department/Equipment:
Total Cost:
Police - Marked Police Vehicles -12
$384,000.00
Police - Unmarked Police Vehicles - 3
$ 96 000.00
GRAND TOTAL:
$480 000.00
The Equipment Group is essential to the governmental functions of Lessee. The Equipment Group is or will be located at the
following address(es). Prior to relocation of the Equipment Group or any portion thereof during the Lease Term, Lessee will provide
written notice to Lessor:
CITY OF LON�OD, FLORIDA,
Lessee A /
By:
Name: Brian D. Sackett
Title: Mayor
Date: Oil —/ S --13
Address: 175 West Warren Avenue
Longwood, FL 32750
Telephone: 407/260-3445
Facsimile: 407/260-3419
V5/2013:LBS-BQ-BSRDOC/rev.1/04Aemr
VARIOUS LOCATIONS
SUNTRUST EQUIPMENT FINANCE
& LEASING CORP.,
Lessor
By:
Name: Gregory Faherty
Title: Vice President
Date:
Address: 300 East Joppa Road, 7 h Floor
Towson, MD 21286
Telephone: 410/307-6648
Facsimile: 410/307-6668
a'
Lease No.: 05049
Equipment Schedule: 05
ACCEPTANCE CERTIFICATE
I, the undersigned, hereby certify that I am the duly qualified and acting officer of the Lessee identified below and, with respect to
the above referenced Equipment Schedule and Lease, that:
1. The Equipment described below has been delivered and installed in accordance with Lessee's specifications, is in good
working order and is fully operational and has been fully accepted by Lessee on or before the date indicated below:
2. Attached are (a) evidence of insurance with respect to the Equipment in compliance with Article VII of the Agreement; (b)
Vendor invoice(s) and/or bill(s) of sale relating to the Equipment, and if such invoices have been paid by Lessee, evidence of payment
thereof (evidence of official intent to reimburse such payment as required by the Code having been delivered separately by Lessee); and (c)
financing statements executed by Lessee as debtor and/or the original certificate of title or manufacturer's certificate of origin and title
application, if any, for any Equipment which is subject to certificate of title laws.
4. Lessee hereby authorizes and directs Lessor to fund the Acquisition Cost of the Equipment by paying, or directing the payment
by Escrow Agent (if applicable) of, the invoice prices to the Vendor(s), in each case as set forth above, or by reimbursing Lessee in the
event such invoice prices have been previously paid by Lessee.
5. No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default (as
defined in the Lease) exists at the date hereof
6. Final Acceptance Certificate. This Acceptance Certificate constitutes final acceptance of all of the Equipment identified in
the Equipment Schedule described above. Lessee certifies that upon payment in accordance with paragraph 4 above, or direction to
Escrow Agent (if applicable) to make payment, Lessor shall have fully and satisfactorily performed all of its covenants and obligations
under the Lease. [CHECK BOX IF APPLICABLE.]
vsnm 3:I.Es-EQ-Esxnoc/rev. iro4nessor
CITY OF LONGWOOD, FLORIDA,
Lessee
By:
Name. Brian D. Sackett
Title: Mayor
Date:
Lease Number: 05049
Equipment Schedule: 05
' • 1uI �� ;I I I
The Funding Date with respect to the above referenced Equipment Group shall be February 19, 2013. Lessor shall retain any
interest accruing between the Funding Date and the date on which interest begins to accrue in accordance with the Payment Schedule more
fully set forth below. The annual Interest rate applicable to the Equipment Group shall be 1.5331%. Lessee will make Rental Payments
each consisting of Principal and Interest as set forth below for a term of 30 months. The first Rental Payment is due on August 19, 2013
and subsequent payments are due semi-annually as set forth below.
Payment
Payment
Payment
Principal
Interest
Principal
Number
Date
Amount
Component
Component
Balance*
1
8/19/13
82,160.01
78,480.55
3,679.46
401,519.45
2
2/19/14
82,160.01
79,082.15
3,077.86
322,437.31
3
8/19/14
82,160.01
79,688.35
2,471.66
242,748.95
4
2/19/15
82,160.01
80,299.21
1,860.80
162,449.74
5
8/19/15
82,160.01
80,914.74
1,245.27
81,535.00
6
2/19/16
82,160.01
81,535.00
625.01
0
Totals $492,960.06 $480,000.00 $12,960.06
CITY OF LONGWOOD, FLORIDA,
Lessee
By
Name: Brian D. Sackett
Title: Mayor
Date: = 2 _/3
* After payment of Rental Payment due on such date.
4
2/5/2013:LES-BQ-ESRDOGrev.1/04/lessor
EXHIBIT B-1
[Escrow]
TAX AGREEMENT AND ARBITRAGE CERTIFICATE
Lease Number: 05049
Equipment Schedule: 05
This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate") is executed and delivered by CITY OF
LONGWOOD, FLORIDA ("Lessee") in favor of SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and its successors and
assigns ("Lessor") in connection with that certain First Amended Master Lease Agreement dated as of December 15, 2010 (the
"Agreement"), and the Equipment Schedule referenced above (the "Equipment Schedule"), each by and between Lessor and Lessee. The
terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement.
Section 1. In General
1.1. This Certificate is executed for the purpose of establishing the reasonable expectations of Lessee as to future events regarding the
financing of certain equipment (the "Equipment") to be acquired by Lessor and leased to Lessee pursuant to and in accordance with the
Agreement and Equipment Schedule (together with all related documents executed pursuant thereto and contemporaneously herewith, the
"Financing Documents"). As described in the Financing Documents, Lessor shall apply $480,000.00 (the "Principal Amount") toward the
acquisition of the Equipment and Lessee shall make Rental Payments under the terms and conditions as set forth in the Financing
Documents.
1.2. The individual executing this Certificate on behalf of Lessee is an officer of Lessee delegated with the responsibility of reviewing and
executing the Financing Documents, pursuant to the resolution or other official action of Lessee adopted with respect to the Financing
Documents, a copy of which has been delivered to Lessor.
1.3. The Financing Documents are being entered into for the purpose of providing funds for financing the cost of acquiring, equipping and
installing the Equipment which is essential to the governmental functions of Lessee, which Equipment is described in the Equipment
Schedule. The Principal Amount will be deposited in escrow by Lessor on the date of issuance of the Financing Documents and held by
SUNTRUST BANK, as escrow agent (the "Escrow Agent") pending acquisition of the Equipment under the terms of that certain :Escrow
Agreement dated as of February 19, 2013, (the "Escrow Agreement"), by and between Lessor, Lessee and Escrow Agent.
1.4. Lessee will complete and timely file for each payment schedule issued under the Lease a Form 8038-G (or, if the invoice price of the
Equipment under such schedule is less than $100,000, a Form 8038-GC) relating to such Lease with the Internal Revenue Service in
accordance with Section 149(e) ofe Internal Revenue Code of 1986, as amended (the "Code").
1.5. Lessee has not issued, and reasonably anticipates that it and its subordinate entities, if any, will not issue, tax-exempt obligations
(including the Lease) in the amount of more than $10,000,000 during the current calendar year. Lessee hereby designates the Lease as a
"qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code and agrees that it and its subordinate entities, if any,
will not designate more than $10,000,000 of their obligations as "qualified tax-exempt obligations" during the current calendar year.
Section 2. Non-Arbitrase Certifications.
2.1. The Rental Payments due under the Financing Documents will be made with monies retained in Lessee's general operating fund (or an
account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the payment
of the Rental Payments due under the Financing Documents or pledged as security therefor.
2.2. There have been and will be issued no obligations by or on behalf of Lessee that would be deemed to be (i) issued or sold within
fifteen (15) days before or after the date of issuance of the Financing Documents, (ii) issued or sold pursuant to a common plan of
financing with the Financing Documents and (iii) paid out of substantially the same source of funds as, or deemed to have substantially the
same claim to be paid out of substantially the same source of funds as, the Financing Documents.
2.3. Other than the Principal Amount held under the Escrow Agreement, Lessee does not and will not have on hand any funds that are or
will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or
separate source of financing for the Equipment.
2.4. No portion of the Principal Amount is being used by Lessee to acquire investments which produce a yield materially higher than the
yield realized by Lessor from Rental Payments received under the Financing Documents. As used in this certificate, the term "yield"
means yield computed by the actuarial method using a 360-day year and semi-annual compounding, resulting in a discount rate which,
when used in computing the present worth of all payments of principal and interest to be paid on an obligation, produces an amount
equal to the issue price, fair market value, present value or purchase price thereof, as applicable, and is determined in all respects in
accordance with Section 148 of the Code.
2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were
entered into. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the
Equipment.
2.6. Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or in part, at a date which is earlier than
the final Payment Date under the Financing Documents.
2/5/2013:LES-BQ-ESRDOGrov.1/04/lessor
Section 3. Disbursement of Funds: Reimbursement to Lessee.
3.1. It is contemplated that the entire Principal Amount deposited in escrow will be used to pay the acquisition cost of Equipment to the
vendors or manufacturers thereof; provided that, if applicable, a portion of the principal amount may be paid to Lessee as reimbursement
for acquisition cost payments already made by it so long as the conditions set forth in Section 3.2 below are satisfied.
3.2. Lessee shall not request that it be reimbursed for Equipment acquisition cost payments already made by it unless each of the following
conditions have been satisfied:
(a) Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150-2 (the
"Declaration of Official Intent'), wherein Lessee expressed its intent to be reimbursed from the proceeds of a borrowing for all or a portion
of the cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Lessee adopted the
Declaration of Official Intent;
(b) The reimbursement being requested will be made by a written allocation before the later of eighteen (18) months after the
expenditure was paid or eighteen (18) months after the items of Equipment to which such payment relates were placed in service;
(c) The entire payment with respect to which reimbursement is being sought is a capital expenditure, being a cost of a type properly
chargeable to a capital account under general federal income tax principles; and
(d) Lessee will use any reimbursement payment for general operating expenses and not in a manner which could be construed as an
artifice or device under Treasury Regulation § 1.148-10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate
requirements.
Section 4. Use and Investment of Funds, Temporary Period.
4.1. Lessee has incurred or will incur, within six (6) months from the date of issuance of the Financing Documents, binding obligations to
pay an amount equal to at least five percent (5%) of the Principal Amount toward the costs of the Equipment. An obligation is not binding
if it is subject to contingencies within Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due
diligence to the date of final acceptance of the Equipment.
4.2. An amount equal to at least eighty-five percent (85%) of the Principal Amount will be expended to pay the cost of the Equipment by
the end of the three-year period commencing on the date of this Certificate. No portion of the Principal Amount will be used to acquire
investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield in
excess of the yield on the Lease.
4.3. (a) Lessee covenants and agrees that it will rebate an amount equal to excess earnings on the Principal Amount deposited under the
Escrow Agreement to the Internal Revenue Service if required by, and in accordance with, Section 148(f) of the Code, and make the
annual determinations and maintain the records required by and otherwise comply with the regulations applicable thereto. Lessee
reasonably expects to cause the Equipment to be acquired by August 19, 2014.
(b) Lessee will provide evidence to Lessor that the rebate amount has been calculated and paid to the Internal Revenue Service in
accordance with Section 148(f) of the Code unless: (i) the entire Principal Amount is expended on the Equipment by the date that is the
six-month anniversary of the Financing Documents or (ii) the Principal Amount is expended on the Equipment in accordance with the
following schedule: At least fifteen percent (15%) of the Principal Amount and interest earnings thereon will be applied to the cost of the
Equipment within six months from the date of issuance of the Financing Documents; at least sixty percent (60%) of the Principal Amount
and interest earnings thereon will be applied to the cost of the Equipment within 12 months from the date of issuance of the Financing
Documents; and one hundred percent (100%) of the Principal Amount and interest earnings thereon will be applied to the cost of the
Equipment prior to eighteen (18) months from the date of issuance of the Financing Documents.
[(c) Lessee hereby covenants that (i) Lessee is a governmental unit with general tax powers; (ii) the Lease is not a "private activity bond"
under Section 141 of the Code; (iii) at least ninety-five percent (95%) of the Principal Amount is used for the governmental activities of
Lessee; and (iv) the aggregate principal amount of all tax-exempt obligations (including the Lease) issued by Lessee and its subordinate
entities, if any, during the current calendar year is not reasonably expected to exceed $5,000,000. Accordingly, the rebate requirements of
Section 148(f) of the Code are treated as being met, in lieu of the spending exceptions set forth in paragraph (b) above.]'
Section 5. Escrow Account.
The Financing Documents provide that the monies deposited in escrow shall be invested until payments to the vendor(s) or manufacturer(s)
of the Equipment are due. Lessee will ensure that such investment will not result in Lessee's obligations under the Financing Documents
being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
respectively. Any monies which are earned from the investment of these funds shall be labeled as interest earned. All such monies will be
disbursed on or promptly after the date that Lessee accepts the Equipment.
Section 6. No Private Use, No Consumer Loan.
6.1. Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Lessee will not permit more than
10% of the Principal Amount to be used for a Private Business Use (as defined herein) if, in addition, the payment of more than ten percent
(10%) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be
' Not applicable to all transactions; see amount limitation.
2/5/2013:LES-EQ-ESRDOGrev.1/04Aessor
used for a Private Business Use or (ii) any interest in payments in respect of such property or derived from any payment in respect of
property or borrowed money used or to be used for a Private Business Use.
In addition, if both (A) more than five percent (5%) of the Principal Amount is used as described above with respect to Private
Business Use and (B) more than five percent (5%) of the Principal Amount plus interest earned thereon is secured by Private Business Use
property or payments as described above, then the excess over such five percent (501a) (the "Excess Private Use Portion") will be used for a
Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will
not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use
Portion is related. For purposes of this paragraph 6.1, "Private Business Use" means use of bond proceeds or bond financed -property
directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural
person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public.
6.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or finance any loans to non-
governmental entities or to any governmental agencies other than Lessee.
Section 7. No Federal Guarantee.
7.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by
the United States or an agency or instrumentality thereof.
7.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of
which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or
indirectly, in federally insured deposits or accounts if such investment would cause the financing under the Financing Documents to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
Section 8. Post -Issuance Compliance.
8.1 In the event an action takes place (or is anticipated to take place) that will cause the Equipment not to be used for qualified uses
under Section 141 of the Code, Lessee will consult with bond counsel as soon as practicable about taking remedial action as described in
Treasury Regulation Section 1.141-12. Lessee will take all actions necessary to ensure that the "nonqualified bonds" (as defined in
Treasury Regulation Section 1.141-12) are properly remediated in accordance with the requirements of the Treasury Regulations. Lessee
is familiar with the Internal Revenue Service's Voluntary Compliance Agreement Program pursuant to which issuers of tax-exempt debt
may voluntarily resolve violations of the Code and applicable Treasury Regulations on behalf of the holders of such debt or themselves
through closing agreements with the Internal Revenue Service.
8.2. Lessee will actively monitor the requirements of the Code and the Treasury Regulations (a) set forth in this certificate and confirm that
such requirements are met no less than once per year; (b) related to the allocation and accounting of proceeds to capital projects and will
maintain a list that specifies the allocation of proceeds of the Lease to the costs of the Equipment; (b) related to arbitrage limitations,
including yield restriction, rebate requirements and the investment of gross proceeds of the Lease. The offices within Lessee that are
currently responsible for such monitoring are the administration and accounting departments.
Section 9. Miscellaneous.
9.1. Lessee shall keep a complete and accurate record of all owners or assignees of the Financing Documents in form and substance
satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as
Lessee's agent for such purpose.
9.2. Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount and interest earnings
thereon for a period of five (5) years after payment in full under the Financing Documents.
9.3. To the best of the undersigned's knowledge, information and belief, the above expectations are reasonable and there are no other
facts, estimates or circumstances that would materially change the expectations expressed herein.
IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Lessee as of February
19, 2013.
CITY OF LONGWOOD, FLORIDA,
Lessee /)
By:� .,.mac.
Name: Brian D. Sac
Title: Mayor
Harp• 7'S� /8
7
2/5/2013: LES-B Q-ESR DOGrev.1 /04/lessor
[Escrow]
EXHIBIT C-1
Lease Number: 05049
Equipment Schedule: 05
ORDINANCE NO.13-2003
AN ORDINANCE OF THE CITY OF LONGWOOD, FLORIDA, APPROVING
AND AUTHORIZING THE EXECUTION AND DELIVERY OF EQUIPMENT
SCHEDULE NO. 5 TO FIRST AMENDED MASTER LEASE AGREEMENT
WITH SUNTRUST EQUIPMENT FINANCE & LEASING CORP., AN ESCROW
AGREEMIKNT, AND RELATED INSTRUMENTS, AND DETERMINING
OTHER MATTERS IN CONNECTION THEREWITH; PROVIDING FOR
CONFLICTS, SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the governing body of the City of Longwood, Florida ("Lessee" or "City") desires to obtain
certain equipment (the "Equipment") described in the Equipment Schedule No. 05 to the First Amended Master
Lease Agreement (collectively, the "Lease") between SUNTRUST EQUIPMENT FINANCE & LEASING
CORP. dated December 15, 2010, the form of which has been available for review by the governing body of
Lessee prior to adoption of this Ordinance; and
WHEREAS, the Equipment is essential for the Lessee to perform its governmental functions; and
WHEREAS, the funds made available under the Lease will be deposited with SUNTRUST BANK (the
"Escrow Agent") pursuant to an Escrow Agreement between Lessor, Lessee and the Escrow Agent (the Escrow
Agreement") and will be applied to the acquisition of the Equipment in accordance with said Escrow
Agreement; and
WHEREAS, Lessee has satisfied the legal requirements, including those relating to any applicable
public bidding requirements, to arrange for the acquisition of the Equipment; and the execution and delivery of
the Lease and the Escrow Agreement; and
WHEREAS, Lessee proposes to enter into the Lease with SUNTRUST EQUIPMENT FINANCE &
LEASING CORP. and the Escrow Agreement with Lessor and Escrow Agent substantially in the forms attached
to this Ordinance; and
WHEREAS, the City Commission finds that entering into and approving the Lease, the Escrow
Agreement and other related instruments generally in the forms attached to this Ordinance (collectively, the
"Financing Documents") are in the best interests of the Lessee for the acquisition of the Equipment.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
LONGWOOD, FLORIDA AS FOLLOWS:
Section 4. Recitals. The above" recitals are true and correct and constitute the City Commission's
findings.
Section 2. Approval:, The Financing Documents and the acquisition and financing of the Equipment
under the terms and conditions as described in the Financing Documents attached to this Ordinance are hereby
approved. The Mayor and any other officer of the City of Longwood who shall have the power to execute
2/5/2013:LES-BQ-ESRDOC/rev.1/04/lessor
contracts on behalf of the City be, and each of them hereby is, authorized to execute,.acknowledge-aAd deliver
the Financing Documents with any reasonable changes, insertions and omissions theriin as may be approved by
the officers who execute the Financing Documents. The City Clerk of the City Bf Longwood and any other
officer of the City who shall have the power to do so be, and each of them hereby is,, authorize& to, affhc the
official seal of the City of Longwood to the Financing Documents and attest the same. The proper officers .of
Lessee be, and each of them is, authorized and directed to execute and deliver any and all papers, instruments,
opinions, certificates, affidavits and other documents and to do or caused to be done any and all other acts and
things necessary or proper for carrying out this Ordinance and the Financing Documents.
Section 3. Qualified Tax -Exempt. Pursuant to Section 265(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), Lessee hereby specifically designates the Lease as a "qualified tax-exempt obligation'
for purposes of Section 265(b)(3) of the Code.
Section 4. Conflicts. If any Ordinances or parts of thereof are in conflict herewith, this Ordinance shall
control to the extent of the conflict.
Section 5. Severability. If any portion of this Ordinance is determined to void, unconstitutional, or invalid by a
court of competent jurisdiction, the remainder of this Ordinance shall remain in full force and effect.
Section 6. Effective Date. This Ordinance shall take effect upon its second reading and final adoption by City
Commission.
FIRST READING this day of �Y _, A.D. 2013.
SECOND READING AND ADOPTION this �� day of q-yt, A.D. 2013.
CITY COMIl HSSION
CITY OF LONGWOOD, FLORIDA
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ATTEST:
Sarah M. Mirus, City Clerk
Approved as to form and legality for the use and reliance of the City of Longwood, Florida only.
215/2013:LEs-sQ-ESRDOGrev.1/04nessor 10
EXHIBIT D
Lease No.: 05049
Equipment Schedule: 05
INCUMBENCY CERTIFICATE
I do hereby certify that I am the duly elected or appointed and acting Cjjy Clerk of CITY OF LONGWOOD, FLORIDA, a
political subdivision duly organized and existing under the laws of the State of Florida ("Lessee"), that I have custody of the records of
such entity, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding the
offices set forth opposite their respective names.
I further certify that (i) the officers of Lessee listed below have the authority on behalf of Lessee to execute and deliver the
Equipment Schedule No. 05 to the First Amended Master Lease Agreement dated as of December 15, 2010 between SunTrust Equipment
Finance & Leasing Corp. and Lessee, and all other documents, agreements and certificates contemplated by the foregoing; and (ii) the
signatures set opposite the respective names and titles of such officers are their true and authentic signature.
Brian D. Sackett
Mayor
TITLE
IN WITNESS WHEREOF, I have duly executed this certificate as of this
Fame: Sarah Mirus
Title: City Clerk
11
715/2013:LES-BQ•ESR DOGrev.1/04/lessor
ram.,
of 012.
EIm1T E
[LETTERHEAD OF LESSEE'S COUNSEL]
February 19, 2013
TO BE PROVIDED BY THE CITY ATTORNEY
vsrzois:Les-sQ-ESRDOGrev.1/oanessor 12
EXHIBIT F
Lease No.: Shown on Schedule I
Equipment Schedule: Shown on Schedule I
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
ESCROW AGREEMENT
This ESCROW AGREEMENT, made and entered into as of the Date shown on Schedule I, by and among SUNTRUST EQUIPMENT
FINANCE & LEASING CORP., a Virginia corporation ("Lessor"), the lessee named on Schedule I, which is a political subdivision or
public body politic and corporate of the State or Commonwealth shown on Schedule I ("Lessee"), and SUNTRUST BANK, a Georgia
banking corporation, as Escrow Agent ("Escrow Agent").
In consideration of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS AND RECITALS
Section 1.1. Definitions. The terms defined in this Section 1.1 shall, for all purposes of this Escrow Agreement, have the meanings
specified below or on Schedule I.
"Acquisition Costs" means, with respect to the Equipment, the contract price paid or to be paid to the person entitled to such payment
upon acquisition or delivery of any portion of the Equipment in accordance with the purchase order or contract therefor. Acquisition Costs
may include the administrative, engineering, legal, financial and other costs incurred by Lessee in connection with the acquisition, delivery
and financing of the Equipment, if approved by Lessor.
"Equipment" means the personal property described in the Acceptance Certificate executed pursuant to the Lease, together with any and
all modifications, additions and alterations thereto, to be acquired from the moneys held in the Equipment Acquisition Fund.
"Equipment Acquisition Fund" means the account by that name established and held by Escrow Agent pursuant to Article H of this
Escrow Agreement.
"Escrow Agent Fee" has the meaning set forth in Section 6.1 and the amount of such Escrow Agent Fee is shown on Schedule I.
"Escrow Agreement" means this Escrow Agreement and any duly authorized and executed amendment or supplement hereto.
"Initial Deposit Amount" means the amount shown as the Initial Deposit Amount on Schedule I.
"Lease" means the First Amended Master Lease, together with the Equipment Schedule identified on Schedule I, by and between Lessee
and Lessor, and any duly authorized and executed amendment or supplement thereto.
"First Amended Master Lease" means the First Amended Master Lease Agreement, dated as of the date shown on Schedule I, by and
between Lessee and Lessor, including any Equipment Schedules entered into thereunder and any duly authorized and executed amendment
or supplement thereto.
"Payment Request Form" means the document substantially in the form attached hereto as Exhibit A to be executed by Lessee and
Lessor and submitted to Escrow Agent to authorize payment of Acquisition Costs.
"Qualified Investments" means the ST Leasing — Corp Agency NOW Account, a SunTrust Deposit Account for Escrow customers of
SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and SunTrust Bank. By signing this Escrow Agreement, Lessee
acknowledges that such Qualified Investment is a permitted investment under any state, county or municipal law applicable to the
investment of Lessee's funds.
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ARTICLE H. APPOINTMENT OF ESCROW AGENT; AUTHORITY
Section 2.1. Appointment of Escrow Agent. Lessor and Lessee hereby appoint and employ Escrow Agent to receive, hold, invest and
disburse the moneys to be paid to Escrow Agent pursuant to this Escrow Agreement and to perform certain other functions, all as
hereinafter provided. By executing and delivering this Escrow Agreement, Escrow Agent accepts the duties and obligations of Escrow
Agent hereunder.
Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no additional duties or obligations shall be
implied hereunder. In performing its duties under this Escrow Agreement, or upon the claimed failure to perform any of its duties
hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of
Escrow Agent so acting or failing to so act; provided however, Escrow Agent shall not be relieved from liability for damages arising
out of its proven gross negligence or willful misconduct under this Escrow Agreement. Escrow Agent shall in no event incur any
liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to
any party hereto, given with respect to any question relating to the duties and responsibilities of Escrow Agent hereunder or (ii) any
action taken or omitted to be taken in reliance upon any instrument delivered to Escrow Agent and believed by it to be genuine and to
have been signed or presented by the proper party or parties. Escrow Agent shall not be bound in any way by any agreement or
contract between Lessor and Lessee, including the First Amended Master Lease, whether or not Escrow Agent has knowledge of any
such agreement or contract.
Section 2.2. Authority. Each of the parties has authority to enter into this Escrow Agreement, and has taken all actions necessary to
authorize the execution of this Escrow Agreement by the representatives whose signatures are affixed hereto.
ARTICLE III. EQUIPMENT ACQUISITION FUND
Section 3.1. Equipment Acquisition Fund. Escrow Agent shall establish a special escrow account designated as the "Equipment
Acquisition Fund" (the "Equipment Acquisition Fund"), shall keep such Equipment Acquisition Fund separate and apart from all other
funds and moneys held by it and shall administer such Equipment Acquisition Fund as provided in this Escrow Agreement.
Section 3.2. Deposit. Upon execution of the Lease and delivery to Lessor by Lessee of all documents required to be delivered thereunder,
Lessor shall deposit or cause to be deposited with Escrow Agent an amount equal to the Initial Deposit Amount. Escrow Agent shall credit
such amount to the Equipment Acquisition Fund. The Initial Deposit Amount is to be sent by Lessor to Escrow Agent by wire transfer to:
SunTrust Bank, ABA# 061000104, Account# 9443001321, Account Name: Escrow Services Richmond, Beneficiary as shown on
Schedule I, Attention: Matthew Ward.
Section 3.3. Disbursements. Escrow Agent shall use the moneys in the Equipment Acquisition Fund from time to time to pay the
Acquisition Cost of each item of Equipment, within a reasonable time of receipt with respect thereto of a Payment Request Form executed
by Lessor and Lessee. Upon receipt of a Payment Request Form executed by Lessor and Lessee, an amount equal to the Acquisition Cost
as shown therein shall be paid directly by Escrow Agent to the person or entity entitled to payment as specified therein. Although the
Payment Request Form may have schedules, invoices and other supporting document attached to it, Lessor will send to Escrow Agent only
the page or pages showing the signatures of Lessor and Lessee, the Acquisition Cost and related payment information, without such
schedules, invoices or other supporting documentation. Escrow Agent may act and rely upon the signed Payment Request Form without
the need to review or verify any such schedules, invoices or other supporting documentation.
Section 3.4. Transfers Upon Completion. Unless all of the funds deposited by Lessor in the Equipment Acquisition Fund have been
previously disbursed pursuant to Section 3.3 or paid to Lessor pursuant to Section 3.5, on the Ending Date shown on Schedule I, Escrow
Agent shall pay upon written direction all remaining moneys in the Equipment Acquisition Fund to Lessor or its assignee for application as
a prepayment of the unpaid Principal under the related Lease. Any amounts paid pursuant to this Section 3.4 shall be subject to a
prepayment fee equal to two percent (2%) of such amount. Lessor shall apply amounts received under this Section 3.4 first to unpaid fees,
late charges and collection costs, if any, which have accrued or been incurred under the First Amended Master Lease, then to overdue
Principal and Interest on the Lease and then, in the sole discretion of Lessor, either (i) to Principal payments thereafter due under the Lease
in the inverse order of their maturities or (ii) proportionately to each Principal payment thereafter due under the Lease. In the event that
Lessor elects to apply any such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make Rental
Payments as scheduled in the applicable Payment Schedule. In the event that Lessor elects to apply such amounts in accordance with
clause (ii) of this Section 3.4, Lessor shall provide Lessee with a revised Payment Schedule which shall reflect the revised Principal
balance and reduced Rental Payments due under the Lease. Capitalized terms used in this Section 3.4, but not defined herein, shall have
the meanings given to such terms in the Lease. Escrow Agent shall have no responsibility to see to the appropriate application of any
moneys returned under this Section 3.4.
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Section 3.5. Lfauidation. Upon receipt of written notice from Lessor or Lessee that the Lease has been terminated pursuant to Sections
3.2 or 12.2 thereof, Escrow Agent shall liquidate all investments held in the Equipment Acquisition Fund and transfer the proceeds thereof
and all other moneys held in the Equipment Acquisition Fund to Lessor.
ARTICLE IV. TRUST; INVESTMENT
Section 4.1. Irrevocable Trust. The moneys and investments held by Escrow Agent under this Escrow Agreement are irrevocably held
in trust for the benefit of Lessor and Lessee, and such moneys, together with any income or interest earned, shall be expended only as
provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either
Lessor or Lessee (other than Lessor's security interest granted hereunder).
Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Equipment
Acquisition Fund or any part of the Equipment Acquisition Fund or to file any financing statement under the Uniform Commercial
Code of any jurisdiction with respect to the Equipment Acquisition Fund or any part thereof.
Section 4.2. Investment. Moneys held by Escrow Agent hereunder shall be invested and reinvested by Escrow Agent only in Qualified
Investments. Such investments shall be registered in the name of Escrow Agent and held by Escrow Agent for the benefit of Lessor and
Lessee. Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by this Article IV. Such
investments and re -investments shall be made giving full consideration for the time at which funds are required to be available. Any
income received on such investments shall be credited to the Equipment Acquisition Fund and any loss on such investments shall be
charged to the :Equipment Acquisition Fund. Escrow Agent shall not be responsible or liable for any loss suffered in connection with any
investment of moneys made by it in accordance with this Article IV.
Section 4.3. Disposition of Investments. Escrow Agent shall, without further direction from Lessor or Lessee, sell such investments as
and when required to make any payment from the Equipment Acquisition Fund.
Section 4.4. Accounting. Escrow Agent shall keep complete and accurate records of all moneys received and disbursed under this
Escrow Agreement which shall be available for inspection by Lessor or Lessee, or the agent of either of them, at any time during regular
business hours upon prior written request. Escrow Agent shall famish to Lessor and Lessee no less than quarterly an accounting of all
investments and interest and income therefrom.
Section 4.5. Termination. This Escrow Agreement shall terminate upon disbursement by Escrow Agent of all moneys held by it
hereunder. Notwithstanding the foregoing, this Escrow Agreement shall not be considered to be terminated until all fees, costs and
expenses of Escrow Agent have been paid in full. Upon termination, Escrow Agent shall be discharged from all duties and responsibilities
under this Escrow Agreement.
ARTICLE V. ESCROW AGENT'S AUTHORITY; INDEMNIFICATION
Section 5.1. Validity. Escrow Agent may act upon any writing or instrument or signature which it believes to be genuine, may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to
give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so, and Escrow
Agent shall be under no duty to make any investigation or inquiry as to any of the foregoing. Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited with it, nor as to the
identity, authority or right of any person executing the same.
Escrow Agent shall be entitled to rely upon any statement, certificate, document or instrument presented to it by or on behalf of :Lessee
by any of Lessee's Authorized Representatives shown on Schedule I and shall be entitled to rely upon any such statement, certificate,
document or instrument presented to it by any other person who identifies himself or herself as an authorized representative of Lessee.
Section 5.2. Use of Counsel and Agents. Escrow Agent may execute any of the trusts or powers hereof and perform the duties required
of it hereunder by or through attorneys, agents, or receivers. Escrow Agent shall be entitled to advice of counsel concerning all matters of
trust and its duties hereunder and shall be paid or reimbursed the reasonable fees and expenses of such counsel, as provided in Section 6.1.
Escrow Agent shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable
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care.
Section 5.3. Interuretation. As an additional consideration for and as an inducement for Escrow Agent to act hereunder, it is
understood and agreed that, in the event of any disagreement between the parties to this Escrow Agreement or among them or any
other persons resulting in adverse claims and demands being made in connection with or for any money or other property involved in
or affected by this Escrow Agreement, Escrow Agent shall be entitled, at the option of Escrow Agent, to refuse to comply with the
demands of such parties, or any of such parties, so long as such disagreement shall continue. In such event, Escrow Agent shall make
no delivery or other disposition of the Equipment Acquisition Fund or any part of the Equipment Acquisition Fund. Anything herein to
the contrary notwithstanding, Escrow Agent shall not be or become liable to such parties or any of them for the failure of Escrow
Agent to comply with the conflicting or adverse demands of such parties or any of such parties.
Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the Equipment Acquisition Fund or
any part thereof or to otherwise act hereunder, as stated above, unless and until:
1. the rights of such parties have been finally settled by binding arbitration or duly adjudicated in a court having
jurisdiction of the parties and the Equipment Acquisition Fund; or
2. the parties have reached an agreement resolving their differences and have notified Escrow Agent in writing of such
agreement and have provided Escrow Agent with indemnity satisfactory to Escrow Agent against any liability, claims or damages
resulting from compliance by Escrow Agent with such agreement.
In the event of a disagreement between such parties as described above, Escrow Agent shall have the right, in addition to the rights
described above and at the option of Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all money
and property comprising the Equipment Acquisition Fund and may take such other legal action as may be appropriate or necessary, in
the opinion of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent shall be discharged from all further duties
and responsibilities under this Escrow Agreement; provided, however, that the filing of any such legal proceedings shall not deprive
Escrow Agent of its compensation hereunder earned prior to such filing and discharge of Escrow Agent of its duties and
responsibilities hereunder.
The parties hereto jointly and severally agree that, whether under this Section 5.3 or any other provisions of this Escrow Agreement, in
the event any controversy arises under or in connection with this Escrow Agreement or the Equipment Acquisition Fund or in the event
that Escrow Agent is made a party to or intervenes in any litigation pertaining to this Escrow Agreement or the Equipment Acquisition
Fund, to pay to Escrow Agent reasonable additional compensation for its extraordinary services and to reimburse Escrow Agent for all
costs and expenses associated with such controversy or litigation, including reasonable attorney's fees.
Section 5.4. Limited Liability of Escrow Agent, Escrow Agent shall not be liable in connection with the performance or observation of
its duties or obligations hereunder except for in the case of its proven gross negligence or willful misconduct. Escrow Agent shall have no
obligation or liability to any of the other parties under this Escrow Agreement for the failure or refusal of any other party to perform any
covenant or agreement made by such party hereunder or under the first Amended Master Lease, but shall be responsible solely for the
performance of the duties and obligations expressly imposed upon it as Escrow Agent hereunder.
Section 5.5. Indemnification. Escrow Agent shall have no obligation to take any legal action in connection with this Escrow
Agreement or towards its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might
involve it in any cost, expense, loss or liability unless security and indemnity, as provided in this Section 5.5, shall be furnished.
To the extent permitted by applicable law, Lessee agrees to indemnify Escrow Agent and it officers, directors, employees and agents and
save Escrow Agent and its officers, directors, employees and agents harmless from and against any and all Claims (as hereinafter
defined) and Losses (as hereinafter defined) which may be incurred by Escrow Agent or any of such officers, directors, employees or
agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents as a result of or in
connection with Escrow Agent's capacity as such under this Escrow Agreement by any person or entity. Notwithstanding the
foregoing provisions, no provisions affording relief contained herein shall: (a) be deemed to be a waiver of sovereign or statutory
immunity from tort or otherwise; (b) require the Lessee to spend any sums which are not properly appropriated, attributable to
insurance proceeds, legally available, or otherwise in an account of fund designated for indemnification, tort, or similar costs and
expenses; and (c) be permitted beyond that scope which is permitted as a matter of applicable law. Should any provisions of this
section be deemed to be illegal or void as matter of law, the parties have agreed that such invalid provisions or invalid portions of such
provisions shall be deemed to be non -essential and such invalid provisions will be severed from the balance of this Agreement without
affecting the enforceability of any other provision hereof. For the purposes hereof, the term "Claims" shall mean all claims, lawsuits,
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causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action,
counterclaim, cross action or impleader) Escrow Agent or any such officer, director, employee or agent, even if groundless, false or
fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or
indirectly, to arise out of, result from, relate to or be based upon, in whole or in part: (a) the acts or omissions of Lessor or Lessee, (b)
the appointment of Escrow Agent as escrow agent under this Escrow Agreement, or (c) the performance by Escrow Agent of its powers
and duties under this Escrow Agreement; and the term "Losses" shall mean losses, costs, damages, expenses, judgments and liabilities
of whatever nature (including but not limited to attorneys', accountants' and other professionals' fees, litigation and court costs and
expenses and amounts paid in settlement), directly or indirectly resulting from, arising out of or relating to one or more Claims. Upon
the written request of Escrow Agent or any such officer, director, employee or agent (each referred to hereinafter as an "Indemnified
Party"), and to the extent permitted by law, Lessee agrees to assume the investigation and defense of any Claim, including the
employment of counsel acceptable to the applicable Indemnified Party and the payment of all expenses related thereto and,
notwithstanding any such assumption, the Indemnified Party shall have the right, and Lessee agrees to pay the cost and expense
thereof, to employ separate counsel with respect to any such Claim and participate in the investigation and defense thereof in the event
that such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to such
Indemnified Party which are different from or additional to those available to either Lessor or Lessee. Lessee hereby agrees that the
indemnifications and protections afforded Escrow Agent in this Section 5.5 shall survive the termination of this Escrow Agreement.
ARTICLE VI. COMPENSATION
Section 6.1. Escrow Agent Fee. Escrow Agent shall be paid by Lessee the Escrow Agent Fee shown on Schedule I for the ordinary
services to be rendered hereunder (the "Escrow Agent Fee"), and will be paid and/or reimbursed by Lessee upon request for all costs,
expenses, disbursements and advances, such as reasonable attorney's fees and court costs, incurred or made by Escrow Agent in
connection with carrying out its duties hereunder, including the costs, expenses, disbursements and advances described in Sections 5.2, 5.3
and 6.2; provided the Escrow Agent Fee and such other costs, expenses, disbursements and advances shall be payable from the interest
earnings from the Equipment Acquisition Fund.
Section 6.2. Investment Fees. Escrow Agent shall be entitled to charge reasonable fees and commissions in connection with the
investment by it of amounts held in the Equipment Acquisition Fund (the "Investment Fees"). Lessor and Lessee hereby authorize Escrow
Agent to periodically deduct the Investment Fees from investment earnings on the Equipment Acquisition Fund.
Section 6.3. Security for Fees and Expenses. As security for all fees and expenses of Escrow Agent hereunder and any and all losses,
claims, damages, liabilities and expenses incurred by Escrow Agent in connection with its acceptance of appointment hereunder or
with the performance of its obligations under this Escrow Agreement and to secure the obligation of Lessee to indemnify Escrow
Agent as set forth in Section 5.5, Escrow Agent is hereby granted a security interest in and a lien upon the Equipment Acquisition
Fund, which security interest and lien shall be prior to all other security interests, liens or claims against the Equipment Acquisition
Fund or any part thereof to the extent not prohibited by law.
ARTICLE VIL CHANGE OF ESCROW AGENT
Section 7.1. Removal of Escrow Agent. Lessor and Lessee, by written agreement, may by written request, at any time and for any
reason, remove Escrow Agent and any successor thereto, and shall thereupon appoint a successor or successors thereto, but any such
successor shall have capital (exclusive of borrowed capital) and surplus of at least Fifty Million Dollars ($50,000,000), and be subject to
supervision or examination by federal or state authority. If such bank or trust company publishes a report of condition at least annually,
pursuant to statute or the requirements of any federal or state supervising or examining authority, then for the purposes of this Section 7.1,
the combined capital and surplus of such bank or trust company may be conclusively established in its most recent report of condition so
published.
Section 7.2. Resignation of Escrow Agent. Escrow Agent may resign at any time from it obligations under this Escrow Agreement by
providing written notice to the parties hereto. Such resignation shall be effective on the date set forth in such written notice which shall
be no earlier than 30 days after such written notice has been given, unless an earlier resignation date and the appointment of a successor
Escrow Agent shall have been approved by Lessor and Lessee. In the event no successor escrow agent has been appointed on or prior to
the date such resignation is to become effective, Escrow Agent shall be entitled to tender into the custody of a court of competent
jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Escrow
Agreement. Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
Section 7.3. Merger or Consolidation. Any entity into which Escrow Agent may be merged or converted, or with which it may be
consolidated, or any entity resulting from any merger, conversion or consolidation to which it shall be a party, or any company to which
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Escrow Agent may sell or transfer all or substantially all of its corporate trust business (provided that such company shall be eligible under
Section 7.1) shall be the successor to Escrow Agent without any execution or filing or further act.
ARTICLE VIII. ADMINISTRATIVE PROVISIONS.
Section 8.1. Notice. All written notices to be given under this Escrow Agreement shall be given by mail, by facsimile or by overnight
courier to the party entitled thereto at its contact information specified on Schedule I, or at such contact information as the party may
provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after
deposit in the United States mail in registered or certified form, with postage fully prepaid, or if given by other means, when delivered at
the address or facsimile number specified in Schedule I. Any notice given by any party shall be given to both other parties.
Section 8.2. Assignment. Except as expressly herein provided to the contrary, the rights and duties of each of the parties under this
Escrow Agreement shall not be assignable to any person or entity without the written consent of all of the other parties. Notwithstanding
the above, Lessor may freely assign all or any part of its interest in this Escrow Agreement and the Equipment Acquisition Fund in
connection with an assignment by Lessor of its rights under the Lease.
Section 8.3. Bindine Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.
Section 8.4. Severability. In the event any provision of this Escrow Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Section 8.5. Entire Aereement: Amendments. This Escrow Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and
representations, express or implied. By execution of this Escrow Agreement, Escrow Agent shall not be deemed or considered to be a
party to any other document, including the first Amended Master Lease.
This Escrow Agreement may be amended, supplemented or modified only by written documents duly authorized, executed and delivered
by each of the parties hereto.
Section 8.6. Cautions. The captions or headings in this Escrow Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions, Articles, Sections or clauses hereof.
Section 8.7. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as
may be necessary or proper to carry out the intention or to facilitate the performance of the parties under this Escrow Agreement, and for
better assuring and confirming the rights and benefits provided herein.
Section 8.8. Governine Law. This Escrow Agreement shall be governed by and construed in accordance with the laws of the State of
Florida, and exclusive venue and jurisdiction shall lie in a court of proper jurisdiction in Seminole County, Florida for state court actions,
or in the Middle District of Florida, Orlando Division for federal court actions.
Section 8.9. Execution in Counterparts. This Escrow Agreement may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same Escrow Agreement.
Section 8.10. Waiver of Jury Trial. Lessor, Lessee and Escrow Agent hereby waive any right to trial by jury in any action or proceeding
with respect to, in connection with or arising out of this Escrow Agreement.
Section 8.11. No Tax Reporting. Escrow Agent will not be responsible for tax reporting of any income on the Equipment Acquisition
Fund.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
1J5/2013:LES-BQ-ESRD0C/rev.1/04/lessor 18
EXECUTION PAGE OF ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the Date of Escrow Agreement shown on Schedule I.
SUNTRUST BANK,
Escrow Agent
By: _
Name:
Title:
[SEAL]
Schedule I Information to Complete Escrow Agreement
Exhibit A Payment Request Form
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.,
Lessor
Name: Gregory Faherty
Title: Vice President
CITY OF LONGWOOD, FLORIDA,
Lessee
Name: Brian D. Sackett
Title: Mayor
215/2013:LES-BQ-ESR.D0C/rev.1104Aemr 19
SCHEDULE I
INFORMATION TO COMPLETE ESCROW AGREEMENT
Lease Number: 05049
Equipment Schedule: 005
Date of Escrow Agreement: February 19, 2013
Name of Lessee: CITY OF LONGWOOD, FLORIDA
Lessee's State / Commonwealth: Florida
Fees: $250.00 (Escrow Agent)
Investment Fees, if any, are more fully defined on the attached prospectus, if any
Extension and other fees may be applicable if not disbursed by the Ending Date.
Initial Deposit Amount: $480,000.00
Date of the First Amended Master Lease Agreement: December 15, 2010
Beneficiary Name for Fund: CITY OF LONGWOOD, FLORIDA
Ending Date:
Lessee's Address:
Attention:
Lessee's Telephone:
Lessee's Facsimile:
Lessee's Taxpayer Identification Number:
Lessee's Authorized Representatives
Escrow Agent's Address:
Escrow Agent's Telephone:
Escrow Agent's Facsimile:
Lessor's Address:
Lessor's Telephone:
Lessor's Facsimile:
Lessor's Taxpayer Identification Number:
Aumust 19, 2014
175 West Warren Avenue
Longwood, FL 32750
Brian D. Sackett
407/260-3445
407/260-3419
59-1008196
Brian D. Sackett, Mayor
SunTrust Bank
919 East Main Street, 7s' Floor
Richmond, VA 23219
Attention: Matt Ward
(804)782-7182
(804)782-7855
[signature]
[name/title [signature]
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
300 East Joppa Road, 7 h Floor
Towson, MD 21286
Attention: Escrow Disbursement Coordinator
(410)307-6749
(410)307-6665
26-1256148
2/5/2013:LES-BQ-ESRDOC/rev.1/04/lessor 20
Lease Number: 05049
Equipment Schedule: 005
EXHIBIT A
PAYMENT REQUEST FORM NO.
SUNTRUST BANK, as Escrow Agent under an Escrow Agreement dated as of Febru lary 9.2013 (the "Escrow Agreement") by
and among Escrow Agent, SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor, and CITY OF LONGWOOD,
FLORIDA, as Lessee, is hereby requested to pay, from the Equipment Acquisition Fund, to the person or entity designated below as
payee, that amount set forth opposite each such name, in payment of the Acquisition Costs of the Equipment designated opposite such
payee's name and described on the attached page(s). The terms capitalized in this Payment Request Form but not defined herein shall have
the meanings assigned to them in the Escrow Agreement.
Payee
Lessee hereby certifies that:
Amount
Eauinment
1. Attached hereto is a duplicate original or certified copy of the following documents relating to the order, delivery and
acceptance of the Equipment described in this Payment Request Form: (a) a manufacturer's or dealer's invoice; and (b) unless this
Payment Request Form relates to partial payment of a Vendor, as defined in the Lease, in connection with a purchase order approved by
Lessor, Lessee's Acceptance Certificate relating to the Equipment.
2. The representations and warranties contained in the Lease are true and correct as of the date hereof.
3. No Non -Appropriation or Event of Default, as each such term is defined in the Lease, or event which with the giving of
notice or passage of time or both would constitute an Event of Default, has occurred.
Dated: , 20_.
CITY OF LONGWOOD, FLORIDA,
Lessee
By
Name: Brian D. Sackett
Title: Mayor
Date: ,5A-•/$ AR
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.,
Lessor
By —
Name:
Title:
Date:
21
2/5/2013:1BS-BQ-BSRD0C1rev.1/04/lessor
EXHIBIT G-1
Lease No.: 05049
Equipment Schedule: 05
TO: World Risk Management
Attn: Sonia Fatheree
141 Terra Mango Loop. Suite A
Orlando. FL 32835
Phone: 407/445-2414 Fax: 407/445-2868
Insurance Agent Name & Address
Phone Number and Fax Number
Gentlemen:
CITY OF LONGWOOD, FLORIDA has entered into a First Amended Master Lease Agreement dated as of December 15,
2010 with SUNTRUST EQUIPMENT FINANCE & LEASING CORP.. In accordance with the Agreement, Lessee certifies that it has
instructed the insurance agent named above to issue:
a. All Risk Physical Damage Insurance on the leased Equipment evidenced by a Certificate of Insurance and Long Form Loss
Payable Clause naming SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and/or its assigns as Loss Payee.
The Coverage Required is $480,000.00.
b. Public Liability Insurance evidenced by a Certificate of Insurance naming SUNTRUST EQUIPMENT FINANCE &
LEASING CORP. and/or its assigns as Additional Insured.
The following minimum coverage is required:
Liability: $ 500,000.00 per person
Liability - Bodily Injury: $1,000,000.00 aggregate
Liability - Property Damage: $1,000,000.00 property damage liability
PROPERTY:
Department/Equipment:
Total Cost:
Police - Marked Police Vehicles -12
$384 000.00
Police - Unmarked Police Vehicles - 3
$ 96,000.00
GRAND TOTAL:
$480 000.00
LOCATION: VARIOUS LOCATIONS
Upon issuance of the coverage outlined above on the previous page, please mail a certificate of insurance to SUNTRUST
EQUIPMENT FINANCE & LEASING CORP., 300 East Joppa Road, 7 h Floor, Towson, MD 21286.
Your courtesy in issuing and forwarding the requested certificate at your earliest convenience will be appreciated.
Very truly yours,
CITY OF L0>40OD, FWRID
By:
\-A
Name:
rian D. Sackett
Title:
Ma or
0 —/' -
Date:
/ 3
2/5/2013:LES-BQ-ESRDOC/rev.1/04/lessor 22
EXHIBIT G-2
Lease Number: 05049
Equipment Schedule: 05
QUESTIONNAIRE FOR SELF-INSURANCE TO
FIRST AMENDED MASTER LEASE AGREEMENT
In connection with the First Amended Master Lease Agreement (the "Agreement'), dated as of December 15, 2010, made and entered into
by and between SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor (the "Lessor"), and the lessee identified below,
as Lessee (the "Lessee"), Lessee warrants and represents to Lessor the following information. The terms capitalized herein but not defined
herein shall have the meanings assigned to them in the Agreement.
1. Property Insurance.
Lessee is self -insured for damage or destruction to the Equipment.
YES NO (circle one)
If yes, the dollar amount limit for property damage to the Equipment under the Lessee's self-insurance program is $
b. Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for property damage
to the Equipment as indicated above.
YES NO (circle one)
If yes, the umbrella policy provides coverage for all risk property damage.
YES NO (circle one)
If yes, the dollar limit for property damage to the Equipment under such umbrella policy is $
2. Bab&N Insurance.
Lessee is self -insured for liability for injury or death of any person or damage or loss of property arising out of or relating to
the condition or operation of the Equipment.
YES NO (circle one)
If yes, the dollar limit for such liability claims under the Lessee's self-insurance program is $
b. Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for liability
including injury or death of persons or damage to property as indicated above.
YES NO (circle one)
If yes, the umbrella policy provides coverage for liabilities for injury and death to persons as well as damage or loss of
properly arising out of or relating to the condition or operation of the Equipment.
YES NO (circle one)
If yes, the dollar amount of the umbrella policy's limits for such liability coverage is $
3A. Selflnsurance Fund.
a. Lessee maintains a self-insurance fund.
YES NO (circle one)
If yes, please complete the following:
Monies in the self-insurance fund are subject to annual appropriation.
YES NO (circle one)
The total amount maintained in the self-insurance fund to cover Lessee's self-insurance liabilities is $
b. Amounts paid from Lessee's self-insurance fund are subject to limitations for each claim.
YES NO (circle one)
If yes, the dollar amount of limit per claim is $.
23
2J52013:LES-BQ-ESKDOGrev.1104Aessor
3B. No Sennsurance Fund.
a. If Lessee does not maintain a self-insurance fund, please complete the following:
Lessee obtains funds to pay claims for which it has self -insured from the following sources:
b. The limitations on the amounts payable for claims from the above sources are as follows:
4. Authority.
a. The following entity or officer has authority to authorize payment for claim:
b. In the event the entity or officer named in the prior response denies payment of a claim, does the claimant have recourse to
another administrative officer, agency or the courts?
YES NO (circle one)
If yes, to whom does the claimant have recourse?
5. Certificates o Insurance.
Attached hereto are copies of certificates of insurance with respect to policies maintained by Lessee.
IN WITNESS WHEREOF, Lessee has caused this Questionnaire to be executed as a supplement to the representations of Lessee in the
Agreement by its duly authorized officer.
CITY OF LONGWOOD, FLORIDA,
Lessee
By:
Name: Brian D. Sackett
Title: Mayor
Date: o /3
Telephone: 407/260-3445
Facsimile: 407/260-3419
Attachment
2/5/2013:LES-EQ-ESRDOGrev.1/04flemr 24
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
ADDENDUM TO EQUIPMENT SCHEDULE NO. 05
TO THE FIRST AMENDED MASTER LEASE AGREEMENT (LEASE NO.05049)
RELATING TO SELF-INSURANCE
THIS ADDENDUM is made as of February 19, 2013, between SUNTRUST EQUIPMENT FINANCE & LEASING CORP. (the
"Lessor") and CITY OF LONGWOOD, FLORIDA ("Lessee").
Recitals
A. Lessor and Lessee have entered into a First Amended Master Lease Agreement dated as of December 15, 2010 (the "Agreement").
B. Lessee desires to lease equipment described in Equipment Schedule No. 05 to the Agreement (the "Equipment") and Lessee has
requested that Lessor lease such Equipment to Lessee.
C. With respect to Equipment Schedule No. 05, Lessee has requested that Lessor permit it to provide self-insurance for liability claims and
property damage.
D. Lessor is willing to grant Lessee's request subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein and in the Agreement, it is
hereby agreed as follows:
1. The terms capitalized in this Addendum but not defined herein shall have the meanings assigned to them in the Agreement.
2. Lessee hereby represents and warrants that all representations and warranties contained in the Agreement are true and correct
as of the date hereof and that neither a Non -Appropriation nor any Event of Default or event which, with the passage of time or giving of
notice or both, would constitute an Event of Default has occurred under the Agreement.
3. All other terms and conditions of the Agreement not specifically amended by this Addendum shall remain in full force and
affect and are hereby ratified and confirmed by Lessee.
4. Lessee represents and warrants that all representations and warranties contained in the Questionnaire for Self- Insurance to the
First Amended Master Lease Agreement (the "Questionnaire") are true and correct as of the date hereof.
5. Lessor acknowledges receipt of the Questionnaire and, in reliance upon the information provided therein, agrees that Lessee
may satisfy the requirements of Sections 7.1 through 7.3 of the Agreement with respect to Equipment Schedule No. 05 through self-
insurance.
6. By written notice to Lessee, Lessor may revoke its agreement relative to Equipment Schedule No. 05 to accept self-insurance
in lieu of the insurance required by Section 7.1 through 7.3 of the Agreement at any time during the related Lease Term when Lessor
deems itself insecure with respect to such self-insurance. Within thirty (30) days of receipt of notice from Lessor, Lessee agrees to obtain
insurance in compliance with Section 7.1, 7.2 and 7.3 of the Agreement and provide evidence thereof to Lessor.
IN WITNESS WHEREOF, the parties by their duly authorized officers have executed this Addendum as of the date and year first above
written.
CITY OF LONGWOOD, FLORIDA,
Lessee
r
By:
Name: Brian D. Sackett
Title: Mayor
Date: d tz
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.,
Lessor
By:
Name: Gregory Faherty
Title: Vice President
Date:
2/5/2013:LES-EQ-ESRDOC/rev.1/04Aessor 25
G. BEN FISHBACK (1893-1983)
JULIAN K. DOMINICK (1924-2003)
MARK F. AHLERS
A. KURT ARDAMAN
JOHN F. BENNETT
CHRISTOPHER R. CONLEY
KEVIN M. DILG
RICHARD S. GELLER
BRIAN T. HANLEY
• DANIEL W. LANGLEY
• GAYLE A. OWENS
MICHAEL D. TEMPKINS
CHARLES R. STEPTER, JR.
OF COUNSEL
'JIFISHBACK DOMINICK
ATTORNEYS AT LAw
1947 LEE ROAD
WINTER PARS, FLORIDA 32789-1834
February 19, 2013
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
300 East Joppa Road, 7t` Floor
Towson, Maryland 21286
TELEPHONE (407) 426-2786
FAX (407) 425-2863
WWW.FISHBACKLAW.COM
' FLORIDA BAR BOARD CERTIFIED IN
CITY, COUNTY AND LOCAL GOVERNMENT
Re: Equipment Schedule No. 05 to First Amended Master Lease Agreement dated as of
December 15, 2010 (the "Agreement") by and between SUNTRUST EQUIPMENT
FINANCE & LEASING CORP. ("Lessor") and CITY OF LONGWOOD, FLORIDA
("Lessee")
Ladies and Gentlemen:
I have acted as counsel to Lessee with respect to the Agreement described above, and in this capacity
have reviewed a copy thereof and Equipment Schedule No. 05 to be executed pursuant thereto (together with
the Agreement, the "Lease"). The terms capitalized in this opinion but not defined herein shall have the
meanings assigned to them in the Lease. Based upon the examination of these and such other documents as
we have deemed relevant, it is my opinion, subject to the qualifications, limitations and assumptions set
forth herein, that:
1. Lessee is a (municipal corporation) political subdivision of the State of Florida (the "State")
within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended, and is duly
organized, existing and operating under the Constitution and laws of the State.
2. Lessee is authorized and has the power under applicable law to enter into the Lease, and to
cant' out its obligations thereunder and the transactions contemplated thereby.
3. The Lease's execution and delivery has been duly authorized by and on behalf of Lessee,
and when executed and delivered will constitute a legal, valid and binding obligation of Lessee enforceable in
accordance with its terms, subject to the annual appropriation by Lessee of legally available funds for each
fiscal year to make payments required under the Lease in each such fiscal year, except as enforcement thereof
may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
4. The authorization and execution of the Lease and all other proceedings of Lessee relating to
the transactions contemplated thereby have been performed in accordance with all applicable open meeting,
public records and all other laws, rules and regulations of the State of Florida.
5. The execution of the Lease and the appropriation of moneys to pay the Rental Payments
FX*ZWAvs, DOIDM43K, BioNwBw, A mA31", Affimua6 LAX01,MY & (TELLER LLP
coming due thereunder do not and will not result in the violation of any constitutional, statutory or other
limitation relating to the manner, form or amount of indebtedness which may be incurred by Lessee.
6. To the best of my knowledge, there is no litigation, action, suit or proceeding pending or
before any court, administrative agency, arbitrator or governmental body that challenges the organization or
existence of Lessee, the authority of Lessee or its officers or its employees to enter into the Lease, the proper
authorization and/or execution of the Lease or the documents contemplated thereby, the appropriation of
moneys to make Rental Payments under the Lease for the current Fiscal Year of Lessee, or the ability of
Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. To
the best of my knowledge, no such litigation, action, suit or proceeding is threatened.
7. The Equipment is personal property, and when used by Lessee will not be or become
fixtures under the laws of the State.
8. Ordinance No. 13-2003 of the governing body of Lessee was duly and validly adopted by
such governing body on February 18, 2013, and such ordinance has not been amended, modified,
supplemented or repealed and remains in lull force and effect.
I render no opinion concerning the determination of taxability of the Lease or Rental Payments. I
render no opinion on the Federal and State of Florida tax-exempt status of the interest income,
documentary taxes and intangible taxes arising from the Lease and this transaction. I render no opinion
on any tax -related document or matters related to the transaction contemplated by the Lease. I render no
opinion concerning the City's financial stability, revenues, expenses, existing notes and obligations, and
financial ability to make payments under the Lease and the City's other leases and obligations. I render
no opinion concerning the truthfulness, accuracy or validity of any statements and/or representations
(whether oral or written) made by City and its Mayor, City Clerk, City Administrator, Finance Director,
financial advisor, or any other City representative made in connection with or in the Lease and various
certificates or any other document related to the transaction contemplated by the Lease.
I have assumed that the Lease submitted to me is to be properly executed in its current form
without changes. My opinion set forth in this letter is limited to the law of the State of Florida and I
express no opinion with respect to the laws of any other state or jurisdiction. My opinions set forth in this
letter are based upon the facts in existence and laws in effect on the date hereof and I expressly disclaim
any obligation to update my opinions herein, regardless of whether changes in such facts or laws come 1.0
my attention after the delivery hereof. I have relied upon various representations from the City and its
officials, employees and agents in rendering my opinion.
This opinion may be relied upon by the addressee hereof and its successors and assignees of interests
in the Lease, but only with regard to matters specifically set forth herein. This opinion may not be relied
upon in any manner by any other entity or person without the undersigned's prior written consent.
Ve ours,
Daniel . L y
City tto
cc: Jon C. Williams, City Administrator
sAaWelients\longwood, city oflgeneral 1324-21313\suntrust bank equipment lease\equipment schedule no. 5\attorney opinion letter february 2013.doc
,<1
G. BEN FISHBACK (1893-1983)
JULIAN K. DOMINICK (1924-2003)
MARK F. AHLERS
*A. KURT ARDAMAN
JOHN F. BENNETT
CHRISTOPHER R. CONLEY
KEVIN M. DILG
RICHARD S. GELLER
BRIAN T. HANLEY
* DANIEL W. LANGLEY
w GAYLE A. OWENS
MICHAEL D. TEMPKINS
CHARLES R. STEPTER, JR.
OF COUNSEL
Via U.S. Mail
Pamela Barclay
Finance Director
City of Longwood
175 West Warren Avenue
Longwood, FL 32750
ATTORNEYS AT LAW
1947 LEE ROAD
WINTER PAR$, FLORIDA 32789 - 1834
February 20, 2013
TELEPHONE (407) 425-i!786
FAX (407) 425-2863
WWW.FISHBACKLAW.COM
" FLORIDA BAR BOARD CERTIFIED IN
CITY, COUNTY AND LOCAL GOVERNMENT
Re: Equipment Schedule No. 05 to First Amended Master Lease Agreement
Attorney Opinion Letter
Dear Pamela:
Please find enclosed my original executed attorney opinion letter dated February 19, 2013
regarding the Equipment Schedule No. 05 transaction with Suntrust Equipment Finance & Leasing
Corp.
Sincerely,
Dictated but not re=:3,
lrtaifed i,• ,., �(
to a old
d l
Daniel W. Langley
DWL/sg
Enclosure
SmMCLIENTSU.ongwood, City oftGene al L324-21313%Suntmst Bank Equipment Leasc Equipment Schedule No. 5\Ltr.To Pamela Bartley 2-20-13.docx
FraHBAm, Dommiox. BBxxwrr. ARDAMAx, ABZBu& LAxaa.BY A GBirmim LLP
Form 8038-G Information Return for Tax -Exempt Governmental Obligations
(Rev. September 2011) ► Under Internal Revenue Code section 149(e) OMB No.1545-0720
Department of the Treasury ► Sea separate Instructions.
Internal Revenue Service Caution: If the issue price Is under $100,000, use Form 8038-GC.
• Reportlng Authority If Amended Retum, check here ► ❑
1 Issuer's name
2 Issuer's employer Identification number (EIN)
City of Longwood
59-1008196
3s Name of person (other than Issuer) with whom the IRS may communicate about this return (see Instructions)
3b Telephone number of other person shown on 3a
Pamela N. Barclay, Finance Director
407-260-3475
4 Number and street (or P.O. box If mail Is not delivered to street address)
Room/suite
5 Report number (For IRS Use Only)
175 West Warren Road
13
e City, town, or post office, state, and ZIP code
7 Date of Issue
Longwood, FL 32750
February 19, 2013
8 Name of Issue
9 CUSIP number
Master Lease Agreement No. 05049, Schedule 005
10s Name and title of officer or other employee of the Issuer whom the IRS may call for more information (see
10b Telephone number of officer or other
Instructions)
employee shown on 10a
Brian D. Sackett, Mayor
407-260-3345
92MM Type of Issue (enter the issue price). See the instructions and attach schedule.
11 Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12 Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . . .
13 Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14 Public safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15 Environment Qncluding sewage bonds) . . . . . . . . . . . . . . . . . . . .
16 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18 Other. Describe ►
11
12
13
14
480,000 00
15
16
17
18
19 If obligations are TANS or RANs, check only box 19a . . . . . . . . . . . . . ► ❑
If obligations are BANS, check only box 19b . . . . . . . . . . . . . . ► El
20 If obligations are in the form of a lease or installment sale, check box . _ . . . . . . ► ❑✓
ad.
•
Description of Obligations. Complete for the entire issue for which this form is beingI
(a) Final maturity date
(b) Issue price
(c) Stated redemption
price at maturity
(d) Weighted
average maturity
(a) Yield
21
02/19/2016
480,000.00
1.761 ears
1.533 %
Uses of roceeds of Bond Issue (including underwriters' discount)
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . .
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . .
24 Proceeds used for bond issuance costs (including underwriters' discount) . . 24
25 Proceeds used for credit enhancement . . . . . . . . . . . . 25
26 Proceeds allocated to reasonably required reserve or replacement fund . 26
27 Proceeds used to currently refund prior issues . . . . . . . . . 27
28 Proceeds used to advance refund prior Issues . . . . . . . . . 28
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . . . . .
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here)
22
23
480,000
00
00
29
30
480,000
00
Description of Refunded Bonds. Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . . ► NA years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . . ► NA years
33 Enter the last date on which the refunded bonds will be called (MM/DD/YYYY) . . . . . . ► NA
34 Enter the date(s) the refunded bonds were Issued ► (MM/DD/Y"
For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8M-G (Rev. 9-2011)
Form 8038-G (Rev. 9-2011)
35
36a
b
c
37
380
b
c
d
39
40
41a
b
d
42
43
44
45a
b
Enter the amount of the state volume cap allocated to the Issue under section 141(b)(5) . . . .
Enter the amount of gross proceeds Invested or to be Invested in a guaranteed Investment contract
(GIC) (see instructions) . . . . . . . . . . . . . . . . . . . . . . . . .
Enter the final maturity date of the GIC ►
Enter the name of the GIC provider Do -
Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans
1 it
2
to other govemmenta un s . . . . . . . . . . . . . . . . . . . . . . . . I WE I I
If this issue Is a loan made from the proceeds of another tax-exempt Issue, check box ► ❑ and enter the following information:
Enter the date of the master pool obligation ►
Enter the EIN of the Issuer of the master pool obligation ►
Enter the name of the Issuer of the master pool obligation ►
If the issuer has designated the Issue under section 265(b)(3)(13)(1)(III) (small Issuer exception), check box .
. ►
If the Issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . . . . . . .
. ►
If the Issuer has Identified a hedge, check here ► ❑ and enter the following information:
Name of hedge provider Do -
Type of hedge No.
Term of hedge ►
If the Issuer has superintegrated the hedge, check box . . . . . . . . . . . . .
►
If the Issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations (see instructions), check box . . . . . . .
. ►
If the Issuer has established written procedures to monitor the requirements of section 148, check box . . . .
. ►
If some portion of the proceeds was used to reimburse expenditures, check here ► ❑ and enter the amount
of reimbursement . . . . . . . . . ►
Enter the date the official intent was adopted ►
0
Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
Signature and belief, they are true, correct, and complete. I further declarlp that I consent to the IRS's disclosure of the Issuer's return Information, as necessary to
and process this retur person that �0-
Consent ' ' Brian D. Sackett, Mayor
Signature of Issue's authorl P—Mlpr-entalnDate Type or print name and title
Paid Print/Type preparer's name spare's signature Date Check ❑ If PTIN
Preparer self-employed
Use Only Fimn's name ► Fir m's EIN ►
Firm's address ► Phone no.
Form 8M-Gi (Rev. 9-2011)
Sarah Mirus
From:
Jon C. Williams
Sent:
Monday, February 25, 2013 2:02 PM
To:
Sarah Mirus
Cc:
Pamela N. Barclay
Subject:
please have the mayor execute
Attachments:
8038g.pdf
Sarah,
Can you have the mayor execute the attached with the revised payment schedule.
Jon C. Williams
City Administrator
City of Longwood
Phone (407)260-3445
Fax (407)260-3419
Lease Number: 05049
Equipment Schedule: 05
PAYMENT SCHEDULE
The Funding Date with respect to the above referenced Equipment Group shall be February 19, 2013. Lessor shall retain any
interest accruing between the Funding Date and the date on which interest begins to accrue in accordance with the Payment Schedule more
fully set forth below. The annual Interest rate applicable to the Equipment Group shall be 1.533 1%. Lessee will make Rental Payments
each consisting of Principal and Interest as set forth below for a term of 36 months. The first Rental Payment is due on August 19, 2013
and subsequent payments are due semi-annually as set forth below.
Payment
Payment
Payment
Principal
Interest
Principal
Number
Date
Amount
Component
Component
Balance*
1
8/19/13
82,160.01
78,480.55
3,679.46
401,519.45
2
2/19/14
82,160.01
79,082.15
3,077.86
322,437.31
3
8/19/14
82,160.01
79,688.35
2,471.66
242,748.95
4
2/19/15
82,160.01
80,299.21
1,860.80
162,449.74
5
8/19/15
82,160.01
80,914.74
1,245.27
81,535.00
6
2/19/16
82,160.01
81,535.00
625.01
0
Totals
$492,960.06
$480,000.00
$12,960.06
CITY OF LONGWOOD, FLORIDA,
Lessee
By:
Name: Brian D. Sackett
Title: Mayor
Date:
* After payment of Rental Payment due on such date.
i"
Sarah Mirus
From:
Jon C. Williams
Sent:
Monday, February 25, 2013 1:16 PM
To:
Sarah Mirus
Cc:
Michelle Longo; Pamela N. Barclay
Subject:
FW: City of Longwood Executed Capital Lease - Equipment Schedule #5
Attachments:
Revised Payment Schedule.pdf; ATT00001.htm
Sarah,
There was an error discovered on the payment schedule of the new SunTrust Lease. Attached is a revised schedule in
which the Mayor needs to execute. Can you please have him sign it so that we may be able to return.
Thanks.
Jon C. Williams
City Administrator
City of Longwood
Phone (407)260-3445
Fax (407)260-3419
From: Pamela N. Barclay
Sent: Monday, February 25, 2013 1:08 PM
To: Jon C. Williams
Subject: Fwd: City of Longwood Executed Capital Lease - Equipment Schedule #5
Can you handle this? They also were looking for the originals thanks
Sent from my iPhone
Begin forwarded message:
From: Hepner.Nancy <Nancy.Hepner@suntrust.com>
Date: February 25, 2013, 12:00:34 PM EST
To: "Pbarclay@lonawoodfl.org" <pbarclay@lonswoodfl.orR>
Cc: Gatton.Lawanna <Lawanna.Gatton@suntrust.com>
Subject: FW: City of Longwood Executed Capital Lease - Equipment Schedule #5
Ms. Barclay,
An error was found on the Payment Schedule which now have been corrected. The error was for a term
of 30 months and should have been 36 months.
Is it possible to have the Mayor sign the new Payment Schedule attached?
Please advise.
Thank you.
Nancy Hepner
Officer
SunTrust Equipment Finance & Leasing Corp.
300 E. Joppa Road, 7th Floor
Towson, MD 21286
(410) 307-6607 Phone
(410) 307-6668 Fax
From: Hepner.Nancy
Sent: Monday, February 25, 2013 11:19 AM
To: 'pbarclay0longwoodfl.org'
Cc: Gatton.Lawanna
Subject: FW: City of Longwood Executed Capital Lease - Equipment Schedule #5
Good morning Ms. Barclay,
I am in receipt of the scanned copies except for the 8038-G which will be needed to fund. We can fund
off the copies but I will the original documentation and the attorney opinion letter within the next few
days. We will be unable to disburse from the escrow account until the receipt of the original
documentation.
If you have any questions regarding the above, please contact Lu or myself.
Thank you.
Nancy Hepner
Officer
SunTrust Equipment Finance & Leasing Corp.
300 E. Joppa Road, 7th Floor
Towson, MD 21286
(410) 307-6607 Phone
(410) 307-6668 Fax
From: Gatton.Lawanna
Sent: Monday, February 25, 2013 11:11 AM
To: Hepner.Nancy
Subject: FW: City of Longwood Executed Capital Lease - Equipment Schedule #5
From: Pamela N. Barclay [mailto:pbarclay@longwoodfl.org]
Sent: Tuesday, February 19, 2013 5:30 PM
To: Gatton.Lawanna; Turner.Debbie
Subject: FW: City of Longwood Executed Capital Lease - Equipment Schedule #5
Here is the Attorney's Opinion Letter for our Capital Lease — Equipment Schedule #5. Please let me
know if there is anything else you need from us.
Thank you.
Pam
From: Pamela N. Barclay
Sent: Tuesday, February 19, 2013 4:48 PM
To: Gatton.Lawanna <Lawanna.GattonC@suntrust.com> (Lawanna.Gatton@suntrust.com);
Turner.Debbie'
Cc: ]on C. Williams
Subject: City of Longwood Executed Capital Lease - Equipment Schedule #5
A file has been sent to you via the YouSendlt File Delivery Service.
Download the file - SunTrust Equipment Finance & Leasing Corp - 02-18-13.0
Your file will expire after 14 days or 500 downloads.
Lu and Debbie,
Last night the City of Longwood Commissioners approved and signed the Capital Lease Equipment
Schedule #5. 1 have attached the executed copy. Upon execution by your SunTrust representative,
please provide me with a fully executed copy.
Our Police Chief is moving forward to purchase the $480,000 of police vehicles and we will be submitting
reimbursement requests within the next couple of months.
Thank you both for all of your help with this transaction.
PameCa N. BarcCay, CPA
Director of Financial Services
City of Longwood
155 W. Warren Avenue
Longwood, Florida 32750
Phone: 407.260.3475
Cell: 407.490.3475
Fax: 407.260.3451
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