Attached files
CASH
PROVISIONING AGREEMENT
This
CASH PROVISIONING
AGREEMENT (“Agreement”) is entered into and is effective this June 1,
2009 by and among U.S. Bank
National Association, doing business as Elan Financial Services (“Elan”),
with offices located at 1255 Corporate Drive, Irving, TX 75038, Nationwide Money Services with
its principal office located at 7800 Belfort Parkway, Suite 165, Jacksonville,
FL 32256 (“ATM Owner”), Nationwide Money Services with
its principal office located at 7800 Belfort Parkway, Suite 165, Jacksonville,
FL 32256 (“ATM Manager”), and Pendum, LLC, with its
principal office located at 4610 S. Ulster, Suite 300 Denver, CO 80237
(“Carrier”), each referred to herein as a “Party” and collectively referred to
herein as “Parties.”
PURPOSE
This
Agreement is for the purpose of enabling Elan to provide Currency (as
hereinafter defined), through the services of Carrier, to the ATM Manager for
use in the operation of the ATMs (as hereinafter defined) belonging to the ATM
Owner, without transferring ownership of the Currency from Elan, and to provide
rights and responsibilities for all Parties having access to the ATMs, including
without limitation, the entity providing maintenance services for the ATMs, as
such access relates to the Currency provided by and belonging to
Elan.
RECITALS
WHEREAS, ATM Owner owns and/or
manages for others a number of automated teller machines (individually and
collectively the “ATMs”) located in various sites throughout the United States,
which sites are accessible to customers of Elan and other financial institutions
for the provision of certain banking services on a daily basis; and
WHEREAS, ATM Manager is
responsible for the proper operation of the ATMs; and
WHEREAS, ATM Manager has a
need for supplies of Currency with which to operate the ATMs; and
WHEREAS, Elan provides various
services to ATM operators and independent sales organizations incidental to the
ownership and operation of ATMs; and
WHEREAS, Elan will, through
the use of Carrier and under certain conditions, supply Currency to ATM Manager
for use in the ATMs; and
WHEREAS, the Currency supplied
by Elan shall be in a bailment relationship between Elan and ATM Manager,
intended to allow ATM Manager the use of the money for proper operation of the
ATMs, indirectly providing benefits to customers of Elan who use the
ATMs.
NOW, THEREFORE, in
consideration of the covenants and conditions contained in this Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
is acknowledged, the Parties hereto, intending to be legally bound, agree to the
terms and conditions set forth below.
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I.
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DEFINITIONS.
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A.
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“Confidential
Information” shall mean information and proprietary materials of a Party
as defined more fully in Section
VI.
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B.
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“Currency” means United States
legal tender issued in the form of a Federal Reserve Note by the United
States Federal Reserve Banks or a United States Note by the United States
Treasury Department, owned by Elan and provided for the use of ATM Owner
under the terms and conditions set forth in this
Agreement.
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C.
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“Electronic
Lock” shall mean a Kaba Man Cencon 2000 lock or such other ATM electronic
lock as is agreed by the Parties as an equivalent
lock.
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Version
1207
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D.
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“Loss” shall mean the loss of
Elan's Currency, and costs and expenses of Elan incidental thereto,
resulting from theft, holdup, burglary, extortion, wrongful abstraction
from an ATM, fire, destruction, disappearance, defalcation, mysterious
disappearance, misappropriation, shortage, and any other type of casualty
or loss, whether explained or
unexplained.
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II.
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BAILMENT. This Agreement shall
create a bailment relationship between Elan, as bailor, and ATM Manager,
as bailee, for the specific purpose of Elan’s delivery of Currency to
Carrier, as agent for Elan, for use in the
ATMs.
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A.
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Amount
of Currency.
The amount of Currency that shall be delivered from time to time in
amounts based upon the ATM operational needs, as determined by the volume
and frequency of withdrawals from the ATMs documented by the ATM Manager
in the ATMs settlement process, up to the total amount outstanding at any
point in time as set forth in Exhibit A,
attached hereto and made a part hereof. At no time will Elan be obligated
to deliver an amount of Currency which, in total, exceeds the amount set
forth in Exhibit
A, unless a greater amount is agreed to in writing by
Elan.
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B.
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Ownership
of Currency. Notwithstanding that the Currency may be in the
physical possession or custody of someone other than Elan, including
without limitation, the ATMs, the Parties acknowledge and agree that until
dispensed from an ATM to a customer of that ATM, the Currency shall be the
sole and exclusive property of Elan and neither ATM Owner, nor ATM
Manager, nor Carrier, nor any third party shall have any interest
(including without limitation, legal, equitable or security interest) in
or to such Currency. In no event will legal title to the Currency pass to
ATM Owner, ATM Manager or Carrier.
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C.
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Acceptance
of Bailment. From and after delivery of Currency to the
ATMs by Carrier, and until the Currency is dispensed from the ATMs to
customers of the ATMs and the amount thereof is repaid to Elan, plus
Elan’s fees and charges, the ATM Owner and the ATM Manager hereby jointly
and severally assume all responsibility and bear all risk of loss for the
transfer, handling and settlement of the Currency, including without
limitation, loss suffered or created by theft, damage, destruction, fraud,
dispute resolution or incorrect dispensing. ATM Owner and ATM Manager
shall jointly and severally indemnify, defend and hold Elan harmless from
any loss, cost or expense incurred by Elan with regard to the Currency.
Carrier shall indemnify, defend and hold Elan harmless from any Loss
incurred by Elan if such Loss is the responsibility of Carrier as
described in Exhibit B, attached hereto and incorporated herein by this
reference.
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D.
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Processing
Agreement. The Parties agree that as of the Effective
Date hereof, ATM Manager has entered into that certain processing
agreement (“Elan Processing Agreement”) with Elan that governs Elan’s
processing ATM Owner’s ATMs. Elan or ATM Manager may terminate
this Agreement without penalty in the event the Elan Processing Agreement
is terminated.
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E.
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Termination
Rights. Elan may, at any time, terminate ATM Manager’s
right to hold the Currency under this bailment and take such action
necessary to recover the Currency from the ATMs. ATM Manager
and ATM Owner shall vigorously oppose any attempts made by a creditor of
ATM Manager or ATM Owner to levy the Currency placed in the ATMs by Elan
or its Carrier. If Elan terminates the bailment, ATM Manager
and ATM Owner shall comply with all post termination responsibilities
under this Agreement.
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III.
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SERVICE AND
ACCESS.
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A.
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Servicing
the ATMs. The ATM Manager shall maintain the ATMs,
including without limitation, replenishing the transaction receipts and
all levels of maintenance for the ATMs. This maintenance shall be
accomplished by ATM Manager at a level that, at a minimum, meets the
standards of the ATM industry. ATM Manager shall have no access to the ATM
vault, the Currency contained in the ATMs, or any form of deposits
contained within the ATMs.
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B.
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Access
to the Currency. During the Term of this Agreement and
until Elan recovers all the Currency, or its equivalent in another payment
medium, and all the fees due Elan, ATM Owner and ATM Manager shall have no
access to Elan’s vault, the vault of the Carrier, or to the vault of any
ATMs which contain the Currency supplied by Elan. Only the
Carrier shall have access to the Currency during transport and only the
Carrier may have access to the Currency contained in the
ATMs. Elan and Carrier may engage in a separate agreement for
the provision of services to transport the Currency, provided such
agreement does not alter the obligations of each of them under this
Agreement and does not alter the liability of either of them to the other
Parties to this Agreement in a manner that is inconsistent with the terms
of this Agreement, including without limitation the obligations of Carrier
contained in Exhibit B. Carrier expressly recognizes and acknowledges the
ownership rights of Elan in and to the Currency that is provided by Elan
for use in the ATMs. Carrier also recognizes and acknowledges the bailment
relationship existing between ATM Manager and Elan with respect to the
handling of the Currency. ATM Manager and ATM Owner agree that Elan shall
be the sole and exclusive source of cash for the ATMs listed on Exhibit D
through the end of the Term.
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IV.
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TERM AND
TERMINATION.
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A.
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Term. The initial term of
this Agreement shall be for a period of two (2) years, commencing on the
date of the signature of the last Party to sign the Agreement (“Initial
Term”). Thereafter, this Agreement shall automatically renew
for additional periods of one (1) year (each a “Renewal Term”) unless a
Party gives the other Parties written notice of its intent to terminate at
least sixty (60) days prior to the end of the Initial Term or any Renewal
Term. Together the Initial Term and, collectively, any Renewal
Terms shall be the “Term”.
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B.
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Termination.
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1.
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Any
Party may terminate this Agreement at any time upon written notice to the
other Parties in the event of the occurrence of one of the
following:
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(a)
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One
of the other Parties (i) terminates or suspends its business, (ii) becomes
subject to any bankruptcy or insolvency proceeding under Federal or state
statute, (iii) becomes insolvent or becomes subject to direct control by a
trustee, receiver or similar authority, (iv) has wound up or liquidated,
voluntarily or otherwise, or (v) is acquired by another party unrelated to
the acquired Party, or (vi) is required to terminate its involvement in
the activities covered by the Agreement by order of a court of competent
jurisdiction or a regulatory agency which governs the activities of the
Party.
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(b)
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At
least one of the other Parties materially defaults in the performance of
any of its duties or obligations hereunder, which default shall not be
substantially cured within thirty (30) days after notice is given to the
defaulting Party specifying the default, then any of the Parties not in
default may, by giving notice thereof to the defaulting Party and all the
other non-defaulting Parties, terminate this Agreement for
cause.
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2.
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Elan
may terminate the Agreement immediately upon written notice to the other
Parties upon the occurrence of one of the
following:
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(a)
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An
audit conducted by or on behalf of Elan reveals that Carrier has failed to
segregate Elan's Currency.
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(b)
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An
unauthorized Party or third party accesses a vault or an ATM and obtains
Currency belonging to Elan.
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(c)
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Termination
of the bailment pursuant to Section
II.E.
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3.
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Elan
or ATM Manager may terminate the Agreement immediately upon written notice
to the other Parties upon termination of the Elan Processing Agreement
between Elan and ATM Manager.
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4.
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Upon
termination of this Agreement, ATM Manager shall immediately pay all sums
due and owing to Elan, including without limitation, all Currency in the
ATMs, which Currency shall be returned to Elan pursuant to Section Xl.F.
In the event Elan directs Carrier to remove the Currency from the ATMs and
the ATM Manager or ATM Owner is unwilling or unable to pay the service
fees to Carrier for the removal of the Currency, Elan will pay the service
fees to the Carrier for such removal of Currency from the
ATMs.
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5.
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ATM
Manager can terminate specific sites from this Agreement at its sole
discretion, understanding that ATM Manager or ATM Owner may incur separate
liabilities for the termination of such sites under any other agreement,
which is unrelated to this
Agreement.
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V.
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FEES AND
PAYMENT.
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A.
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Fees. ATM Manager shall pay
Elan those fees and charges as set forth on Exhibit C,
attached hereto and made a part hereof, in accordance with the
requirements contained therein. In the event ATM Manager fails to pay the
fees and charges as agreed, ATM Owner shall be responsible for payment of
the fees and charges not paid by ATM Manager. Exhibit C shall
be maintained as a confidential document between Elan and ATM Manager and
no other Party to this Agreement, nor any third party, shall be allowed
access to such Exhibit C
except as required in accordance with Section VI.B. In the
event the fees and charges are not paid in accordance with the payment
obligations set forth in Exhibit C
interest shall be due and payable on the unpaid balance at the lesser of
1.5% per month, or the highest rate of interest allowed by
law. Elan shall pay Carrier those fees and charges as set forth
in Exhibit
E, attached hereto and made a part hereof, in accordance with the
requirements contained therein. Exhibit E shall
be maintained as a confidential document between Elan and Carrier and no
other Party to this Agreement, nor any third party, shall be allowed
access to such Exhibit
E.
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B.
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Security
Account. At the
request of Elan, the ATM Manager may be required to establish a separate
depository account with Elan, jointly owned in the name of Elan and ATM
Manager for the benefit of Elan (the “Security Account”). At all times
during the term of this Agreement, the ATM Manager shall maintain a
minimum monthly balance equal to the greater of five thousand U.S. Dollars
($5,000.00) or two (2) month's projected fees and charges payable by ATM
Manager to Elan as set forth in Exhibit
C. Elan may debit the Security Account to obtain payment
of any fees, charges, or other obligations of ATM Manager that have not
been paid as agreed from the Settlement Account. Elan shall
have the right to setoff against the Security Account any obligations for
payment of fees, charges, or other obligations ATM Manager may have to
Elan at any time during the Term of the Agreement and for so long
thereafter as the Security Account remains open. Elan will
notify ATM Manager prior to initiating activity on the
account. The Security Account shall remain open and funded by
ATM Manager in accordance with the requirements of this section for a
period of ninety (90) days after termination of this
Agreement.
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VI.
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CONFIDENTIAL
INFORMATION.
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The
Parties acknowledge that each may have access to, or be provided with,
information or documentation, which each Party regards as confidential or
proprietary. The receiving parties are referred to as ‘Recipient’ and the party
providing the information is referred to as `Owner'. Such information or
documentation shall be dealt with as set forth below.
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A.
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Definition
of Confidential Information. “Confidential
Information” includes both information of a commercial nature and
information related to customers of the ATMs. Confidential Information
includes, without limitation, the following whether now in existence of
hereafter created:
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1.
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Any
information of or about Elan's consumer customers of any nature
whatsoever, and specifically including without limitation, the fact that
someone is a customer or prospective customer of Elan, all lists of
customers, former customers, applicants and prospective customers and all
personal or financial information relating to and identified with such
persons (“Customer Information”);
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2.
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All
information marked as "confidential" or similarly marked, or information
that the Recipient should, in the exercise of reasonable business
judgment, recognize as
confidential;
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3.
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All
business, financial or technical information of the Owner and any of the
Owner's vendors (including, but not limited to account numbers, and
software licensed from third parties or owned by the Owner or its
affiliates);
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4.
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The
Owner's marketing philosophy and objectives, promotions, markets,
materials, financial results, technological developments and other similar
proprietary information and
materials;
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5.
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All
information protected by rights embodied in copyrights, whether registered
or unregistered (including all derivative works), patents or pending
patent applications, "know how," trade secrets, and any other intellectual
property rights of the Owner or Owner's
licensors;
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6.
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Information
with respect to employees of Elan which is non-public, confidential,
business related, or proprietary in nature, including, without limitation,
names of employees, the employees' positions within Elan company, the fact
that they are employees of Elan, contact information for employees,
personal employee identification numbers, and any other information
released to you regarding employees in the past and in the future;
and
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7.
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All
notes, memoranda, analyses, compilations, studies and other documents,
whether prepared by the Owner, the Recipient or others, which contain or
otherwise reflect Confidential
Information.
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B.
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Essential
Obligation.
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1.
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Confidential
Information must be held in confidence and disclosed only to those•
employees or agents whose duties reasonably require access to such
information. Recipient must protect the Owner's Confidential Information
using at least the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized use, disclosure or duplication
(except as required for backup systems) of such Confidential Information
as Recipient uses to protect its own confidential information of a similar
nature.
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2.
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Because
Elan is a federally-regulated financial institution that must comply with
the safeguards for Customer Information contained in the
Gramm-Leach-Bliley Act ("GLBA") and regulations promulgated pursuant to
GLBA, ATM Owner, ATM Manager and Carrier must each establish appropriate
measures designed to safeguard Customer Information. Specifically, ATM
Owner, ATM Manager and Carrier must establish and maintain data security
policies and procedures designed to ensure the
following:
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(a)
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Security
and confidentiality of Customer
Information;
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(b)
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Protection
against anticipated threats or hazards to the security or integrity of
Customer Information;
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(c)
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Protection
against the unauthorized access or use of Customer
Information.
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3.
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ATM
Owner, ATM Manager and Carrier must permit Elan to monitor and audit their
compliance with this Section during regular business hours upon not less
than 48 hours' notice to the ATM Owner, ATM Manager or Carrier and to
provide to Elan copies of audits and system test results acquired by ATM
Owner, ATM Manager and Carrier in relation to the data security policies
and procedures designed to meet the requirements set forth
above.
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C.
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Compelled
Disclosure. If
Recipient is required by a court or governmental agency having proper
jurisdiction to disclose any Confidential Information, Recipient must
promptly provide to the Owner notice of such request to enable the Owner
to seek an appropriate protective
order.
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D.
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Limited
Use of Confidential Information and Survival of Obligations.
Recipient may use the Confidential Information only as necessary for
Recipient's performance hereunder or pursuant to rights granted herein and
for no other purpose. Recipient's limited right to use the Confidential
Information expires upon expiration or termination of this Agreement for
any reason. Recipient's obligations of confidentiality and non-disclosure
survive termination or expiration for any reason of this
Agreement.
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E.
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Disposition
of Confidential Information. Recipient must develop and
maintain appropriate security measures for the proper disposal and
destruction of Confidential Information. Upon Expiration of Recipient's
limited right to use the Confidential Information, Recipient must return
all physical embodiments thereof to Owner or, with Owner's permission,
Recipient may destroy the Confidential Information. Recipient shall
provide written certification to Owner that Recipient has returned, or
destroyed, all such Confidential Information in Recipient's possession.
Notwithstanding the foregoing, Recipient may retain one archival copy of
Confidential Information, which may be used solely to demonstrate
compliance with the provisions of this
Section.
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F.
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Disclosure
to Third Parties. If disclosure of Confidential
Information to third parties is required or allowed under this Agreement,
Recipient must ensure that such third parties have express obligations of
confidentiality and non-disclosure substantially similar to Recipient's
obligations hereunder. Liability for damages because of disclosure of
Confidential Information by any such third parties must be borne by
Recipient.
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G.
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Exclusions. Except
for Customer(s) information, the term "Confidential Information" excludes
any portion of such information that Recipient can establish by clear and
convincing evidence to have been:
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1.
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Publicly
known without breach of this
Agreement;
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2.
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Known
by Recipient without any obligation of confidentiality, prior to
disclosure of such Confidential Information;
or
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3.
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Received
in good faith from a third-party source that to Recipient's reasonable
knowledge rightfully disclosed such information;
or
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4.
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Developed
independently by Recipient without reference to the Owner's Confidential
Information.
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H.
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Remedies. If
Recipient or any of its representatives or agents breaches the covenants
set forth in this Agreement, irreparable injury may result to the Owner or
third parties entrusting Confidential Information to the Owner. Therefore,
the Owner's remedies at law may be inadequate and the Owner shall be
entitled to seek an injunction to restrain any continuing breach.
Notwithstanding any limitation on Recipient's liability, the Owner shall
further be entitled any other rights and remedies that it may have at law
or in equity.
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I.
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Intrusions/Disclosures.
If there is any actual or suspected theft of, accidental disclosure of,
loss of, or inability to account for any Confidential Information by a
Party or any of its subcontractors (collectively "Disclosure") or any
unauthorized intrusions into a Party's or any of its subcontractor's
facilities or secure systems, (collectively "Intrusion") the Party must
immediately i) notify the other Party, ii) estimate the Disclosure's or
Intrusion's effect on the other Party, iii) specify the corrective action
to be taken, and iv) investigate and determine if an Intrusion or
Disclosure has occurred. If, based upon the Party's investigation, the
Party determines that there has been an actual Disclosure or Intrusion,
the Party must promptly notify the other Party, and must promptly
investigate the scope of the Disclosure or Intrusion, and must promptly
take corrective action to prevent further Disclosure or Intrusion. The
Party must, as soon as is reasonably practicable, make a report to the
other Party including details of the Disclosure (including Customer(s)'
identities and the nature of the information disclosed) or Intrusion and
the corrective action the Party has taken to prevent further Disclosure or
Intrusion. The Party must, in the case of a Disclosure cooperate fully
with the other Party to notify the other Party's Customer(s) as to the
fact of and the circumstances of the Disclosure of the Customer's
particular information. Additionally, the Party must cooperate fully with
all government regulatory agencies or law enforcement agencies having
jurisdiction and authority for investigating a Disclosure or any known or
suspected criminal activity.
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VII.
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LIMITATION OF
LIABILITY, WARRANTIES AND
INDEMNIFICATION.
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A.
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LIMITATION
OF LIABILITY.
The Parties acknowledge that the fees for the services provided by
Elan are very small in relation to the Currency provided and consequently
Elan's willingness to provide the Currency is based in part upon the
liability limitations contained herein. Therefore, Elan's liability
hereunder shall not exceed, in the aggregate, an amount equal to the fees
received by Elan during the three (3) months prior to any claim made
against Elan for damages. In no event will Elan, or its agents, officers,
directors, or employees be liable for any indirect, exemplary, punitive,
special, or consequential damages. Except as set forth in Exhibit B.
Carrier and its agents, officers, directors, or employees shall not be
liable for any indirect, exemplary, punitive, special, or consequential
damages.
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B.
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WARRANTY
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, ELAN DISCLAIMS ANY AND ALL WARRANTIES CONCERNING ANY PRODUCTS
OR SERVICES PROVIDED UNDER THE AGREEMENT, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
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C.
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INDEMNIFICATION. ATM
Owner, ATM Manager, Carrier and Elan shall indemnify, defend and hold
harmless each other and their respective agents, officers, directors and
agents against all claims made by third parties arising out of this
Agreement and for all attorneys' fees and other costs and expenses paid or
incurred by the indemnified Party in the enforcement of the Agreement,
including without limitation, those resulting from any breach of the
Agreement or from any transaction occurring pursuant to the Agreement.
Notwithstanding the foregoing, Carrier shall not be liable for any
indirect, exemplary, punitive, special or consequential
damages.
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VIII.
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REPRESENTATIONS AND
WARRANTIES OF THE PARTIES.
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ATM
Owner, ATM Manager, Carrier and Elan, as appropriate, hereby represent and
warrant as follows and acknowledge that the other parties are relying on such
representations and warranties in entering into this Agreement:
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A.
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ATM
Owner has full and complete legal title to the ATMs or the right to
possess and use the ATMs, and, except as set forth on Schedule 1
hereof, the ATMs are free and clear of any prior claims, security
interests, pledges, attachment proceedings, seizures, mortgage, lien,
judgment, execution process or other encumbrance and ATM Owner has the
legal authority to place Elan's Currency into the
ATMs.
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B.
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Except
as set forth in Schedule 1, ATM
Owner, ATM Manager and Carrier have not permitted, suffered or caused, nor
will any of them permit, suffer or cause, as applicable, any encumbrances
to be placed upon the ATMs during the Term of this Agreement. In the event
any encumbrance not set forth in Schedule 1 is placed upon an ATM, the
Party responsible shall immediately cause such encumbrance to be
discharged, satisfied or bonded off to the satisfaction of
Elan.
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C.
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ATM
Owner and ATM Manager have the legal authority to locate and place all
ATMs at the designated locations as set forth in Exhibit D
attached hereto and incorporated herein by this
reference.
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D.
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There
are no pending or threatened litigations, suits, proceedings or claims
against ATM Owner, ATM Manager or Carrier, nor are there any liens,
contracts or court orders pending or existing which could encumber the
Currency once delivered to Carrier, or otherwise placed in the
ATMs.
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E.
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ATM
Owner and ATM Manager and their agents hold the Currency as a custodian,
acting in a fiduciary capacity for the benefit of
Elan.
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F.
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Each
of ATM Owner, ATM Manager, Carrier and Elan is duly organized, validly
existing and in good standing pursuant to applicable state and/or federal
laws under which it is organized, and each is qualified to do business in
all jurisdictions as may be required for the conduct of its respective
business activities hereunder. Each of ATM Owner, ATM Manager, Carrier and
Elan has full power and lawful authority to (i) own and operate its
assets, properties and business; (ii) carry on its business as presently
conducted; and (iii) enter into and perform this Agreement. The persons
executing this Agreement have full authority to bind their respective
Party to the terms and conditions
hereof.
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G.
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The
execution and delivery of this Agreement by each of ATM Owner, ATM
Manager, Carrier and Elan, and the performance by each such Party of its
respective obligations hereof (i) are within its organizational powers;
(ii) have been duly authorized by all necessary organizational action;
(iii) does not and will not conflict with or constitute a breach or
violation of its governing organizational documents; and (iv) does not and
will not conflict with or constitute a breach or violation of any material
agreement, indenture, deed of trust, lease, mortgage, loan agreement or
any other material instrument or undertaking to which such Party is a
party.
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H.
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This
Agreement constitutes a valid and legally binding obligation of each of
ATM Owner, ATM Manager, Carrier and Elan, enforceable against such Party
in accordance with its terms and
conditions.
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I.
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The
ATM Manager and ATM Owner will make every reasonable effort to ensure that
the cash remains the Bank's
property.
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1.
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Neither
the customer nor a third party has any possessory or ownership interest in
the cash for purposes of 11 U.S.C.
§362.
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2.
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It
is expressly understood that no other financial institution may utilize
the Elan's cash to satisfy its own
requirements.
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IX.
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INSURANCE.
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|
A.
|
ATM
Owner. ATM Owner
shall maintain the following insurance coverage during the Term of this
Agreement:
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|
|
1.
|
Workers'
compensation and employers' liability insurance to the extent required by
law covering all persons employed by ATM Owner to perform obligations
under this Agreement.
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|
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2.
|
Commercial
General liability insurance with broad form coverage covering, liability
to bodily and personal injury, damage to property, false arrest, false
imprisonment, malicious prosecution, defamation, liable, slander, legal
liability caused by any
act of ATM Owner or its employees or agents, and contractual
liability coverage. The amount of this insurance must be in an amount that
is reasonable prudent and necessary to cover damages from ATM Owner's
failure to perform its obligations hereunder. In no event shall such
coverage be less than $1 million dollars (USD) per occurrence with an
aggregate limit of not less than $2 million dollars
(USD).
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|
|
B.
|
ATM
Manager.
ATM Manager shall obtain and maintain during the Term of this
Agreement, at its sole expense, insurance sufficient to cover any and all
damages, liability and obligations contemplated by this Agreement. The
coverage by ATM Manager shall, at a minimum, provide for the
following:
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|
|
1.
|
Workers'
Compensation and Employer's Liability insurance to the extent required by
the laws of the state in which the services are performed under this
Agreement.
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|
|
2.
|
Commercial
General Liability insurance, including contractual liability coverage, in
an amount not less than $1 million dollars (USD) per occurrence, with an
aggregate limit of not less than $2 million dollars (USD). Elan must be
named as an additional insured on the
policy.
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|
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3.
|
Automobile
Liability insurance, including uninsured motorist and underinsured
motorist coverage, for every vehicle that is used in the performance of
ATM Manager's obligations under this Agreement, with both property damage
limits and personal injury and death limits of $5 million dollars (USD) in
the aggregate. If ATM Manager's agent is providing maintenance services,
this section will apply to that
agent.
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|
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C.
|
Carrier. Carrier
shall obtain and maintain during the Term of this Agreement, at its sole
expense, insurance sufficient to cover any and all damages, liability and
obligations contemplated by this Agreement. If Carrier's need for Currency
exceeds the insurance limits specified below, Carrier shall increase such
limits and provide verification thereof. The coverage by Carrier shall, at
a minimum, provide for the
following:
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|
|
1.
|
Workers'
compensation and employer's liability insurance to the extent required by
the laws of the state in which the services are performed under this
Agreement.
|
|
|
2.
|
Commercial
General Liability insurance, including contractual liability coverage, in
an amount not less than $ 3 million dollars (JSD) per occurrence, with an
aggregate limit of not less than $10 million dollars (USD). Elan must be
named as an additional insured on the
policy.
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|
|
3.
|
Fidelity
insurance in an amount not less than $5 million dollars (USD) for claims
arising from fraudulent or dishonest acts on the part of any
representative of Carrier.
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|
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4.
|
Automobile
Liability insurance for every vehicle that is used in the performance of
Carrier's obligations under this Agreement, with both property damage
limits and personal injury and death limits of $3 million dollars (USD)
each per occurrence, and $10 million dollars (USD) in the
aggregate.
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|
|
5.
|
In
addition, Carrier shall provide All Risk Armored Car Cargo Liability
insurance covering Currency, coin, checks and other property of Elan that
may be transported or be in Carrier's possession (including property at
Carrier's premises, in transit, and away from Carrier's premises) against
all risks of physical loss or damage, including coverage for any act or
omission of Carrier or any of its employees or agents. The amount of
insurance must be not less than $5 million dollars (JSD) per loss in
transit (armored car coverage) and $5 million dollars (USD) per loss per
vault for on- premises and vault coverage. There may be aggregate on this
insurance policy, provided that the aggregate total shall be no less than
the amount listed in Exhibit A. Elan must be listed as loss
payee.
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|
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D.
|
ATM
Owner, ATM Manager and Carrier will provide Elan with a Certificate of
Insurance evidencing the coverage specified above for each of them. ATM
Owner, ATM Manager and Carrier, as applicable, will notify Elan within one
(1) business day by telephone and by written notice if any insurance
required under this section is not in force at any time during the Term of
this Agreement. ATM Owner, ATM Manager and Carrier shall not take any
action that would invalidate or reduce coverage, and will take all action
necessary to prevent coverage from being invalidated or
reduced.
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|
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E.
|
Elan
will provide At Terminal insurance, which will insure the Currency while
in the ATMs. ATM Manager will pay Elan those fees and charges as set forth
in Exhibit C.
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|
|
F.
|
In
addition to its other rights and obligations under this Agreement, ATM
Owner shall, at its expense and sole responsibility, bolt the ATM to the
floor. In the event of a loss, should it be determined that the ATM was
not bolted to the floor, ATM Owner is responsible for the full amount of
the loss.
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|
X.
|
ACCOUNTING FOR
CURRENCY.
|
|
|
A.
|
Accounting.
ATM Manager, with the cooperation and assistance of Elan in its role as
processing services provider shall account for all transactions at the
ATMs daily and provide a daily status report with respect to each ATM,
showing the amount of Currency dispensed from each and the amount of
Currency remaining in the ATM. Elan in its role as Currency provider shall
also prepare its own daily reconciliation for the Currency it provided. To
the extent Elan's reconciliation shows a discrepancy, Elan shall, within
seventy-two (72) hours of discovery of such discrepancy, provide notice to
Carrier's customer service manager of the discrepancy. Elan's records
shall be prima facie evidence of the Currency outstanding and delivered to
the ATMs from time to time. Elan shall have the right, in its discretion
to audit, inspect and settle any Currency from time to time and at any
time, so as to reconcile all records of Currency held in each of the ATMs.
Elan may conduct such audit and inspection procedures as it deems
necessary, or as may be required by the regulatory agencies having
responsibility over Elan's activities or by Elan's external auditors.
Carrier shall provide Elan such access to the ATMs as is necessary for
Elan to conduct its inspection and
audit.
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|
|
B.
|
ATM
Reconciliation. Elan will reconcile each ATM with the
Currency load, residual and withdrawal information within five (5) days of
the date of replenishment. In the event of a failure to reconcile, Elan
will notify ATM Manager and Carrier. Failure of the ATM Manager to
reconcile the ATM by the end of the calendar month in which the failure
occurs, the failure to reconcile will be deemed to be a delinquent account
and Elan may debit the Security Account for the amount of the failure. For
any debit that exceeds the amount in the Security Account at the time the
debit is executed, Elan may reduce the payment of monthly interchange
income provided for under the Elan Processing Agreement in an amount
sufficient to fully cover the failure. Elan may also offset the amounts
due against any other funds of the ATM Manager on deposit with Elan or any
of its affiliates.
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|
|
C.
|
Return
of Currency to Elan. Elan acknowledges that the Currency
deposited with the Carrier is intended for distribution to customers using
the ATMs which have been loaded with the Currency supplied by Elan. The
amount of Currency provided by Elan for use in the ATMs is returned to
Elan via the transaction processing that occurs pursuant to the Processing
Agreement and is not returned by payments in Currency, except for the
Currency removed from the ATMs by the Carrier and delivered to Elan at the
termination of the Agreement. The fees assessed for the use of the
Currency by ATM Manager in the operation of the ATMs shall be based upon
the actual daily balance of Currency from Elan to ATM Manager that is
outstanding. The amount can only be increased by orders for additional
Currency and decreased only by Currency returns or withdrawal
activity.
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|
|
D.
|
Responsibility
for Loss.
|
|
|
1.
|
General
Responsibilities.
|
|
|
(a)
|
ATM
Manager and Carrier shall, at all times during the Term of this Agreement,
maintain systems and procedures intended to prevent a Loss or the misuse
of Elan's Currency. Elan shall, at all times during the Term of
this Agreement, maintain systems and procedures intended to assist in the
recovery of any Loss.
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|
|
(b)
|
ATM
Manager, Carrier and Elan are responsible to promptly notify the other
parties in writing within 72 hours of becoming aware of a
Loss.
|
|
|
2.
|
Responsibility
for Acts, Omissions or Negligence. It is understood and
agreed that ATM Manager is responsible for any Loss that occurs from the
time the Currency is placed in the ATM and until the Currency is dispensed
to an ATM customer or returned to Elan. Carrier is responsible for any
Loss of Elan's Currency that occurs while the Currency is in Carrier's
possession, or as a result of a cause set forth in Exhibit B. The Currency
while in the ATM is covered by Elan's At Terminal
insurance.
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|
|
3.
|
Payment
for Losses. If an ATM Manager or Carrier is required,
pursuant to an investigation, to compensate Elan for Losses, ATM Manager
or Carrier, as applicable, will pay the Losses by check or ACH made
payable to Elan within fourteen (14) days of conclusion of the
investigation into the matter.
|
|
|
4.
|
Exclusions. ATM
Manager and Carrier will not be responsible for Losses resulting from
illegal or fraudulent acts of Elan employees, agents, representatives, or
third-party contractors of Elan.
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|
|
E.
|
Loss
Procedures.
|
|
|
1.
|
In
the event of a Loss or a difference, Elan will provide notice to ATM
Manager and Carrier's CSM, as designated by Carrier from time to time, by
telephone (which must be followed up with notice in writing), by facsimile
(with written confirmation of receipt), by email to an address designated
by the receiving party, or by a written notice mailed in the US mail by
certified mail, return receipt requested of any claim for Loss within the
lesser of three (3) business days after discovery of the discrepancy, or
forty- five (45) days after ATM Service(s) was performed by Carrier. If
the Loss results in a claim being made by Elan, the notice of claim will
be provided to the attention of Carrier within the lesser of three (3)
business days after discovery of the discrepancy, or forty-five (45) days
after ATM Service(s) was performed by
Carrier.
|
|
|
2.
|
If
requested by ATM Manager or Carrier, Elan will make available to ATM
Manager and Carrier all necessary and available information that directly
relates to the Loss, and Elan will use commercially reasonable efforts to
cause its agents, officers and employees to cooperate with and assist ATM
Manager and Carrier in the investigation of such Loss, subject to
applicable law and regulation regarding financial privacy and any other
applicable law or regulation. Elan will maintain the records described
below for all ATMs serviced by Carrier and will use its best efforts to
make such records available to Carrier within seven (7) days after receipt
of a written request from Carrier and in any event within twelve (12) days
after receipt of written request.
|
|
|
(a)
|
As
available, records of ATM activity including, but not limited to, records
of transaction and ATM activity, ATM network records, error codes and ATM
vault openings for a reasonable period not to exceed 60 days prior to and
subsequent to any identified
shortage.
|
|
|
(b)
|
ATM
and vault balancing records
|
|
|
(c)
|
All
other pertinent receipts and other paperwork and ATM electronic
information pertaining to an identified
shortage.
|
|
|
(d)
|
As
available, and applicable, alarm access records of alarm by ATM
site.
|
|
|
3.
|
In
the event of a difference or loss, ATM Manager and Carrier will fully
cooperate with Elan to investigate, and share ATM Manager's and Carrier's
internal investigation report regarding any Carrier employee who had
potential access to the Currency. Elan will fully cooperate with ATM
Manager and Carrier to investigate the Loss, including sharing of Elan's
internal investigation report with regard to any Elan employee having
potential involvement in the Loss.
|
|
|
4.
|
The
Party responsible for the Loss under this Agreement will make full payment
of the Loss by check or ACH made payable
to Elan within fourteen (14) days of the determination of Loss
responsibility. Elan shall cooperate by providing information reasonably
requested by the insurance carrier for ATM Manager or
Carrier.
|
|
|
F.
|
Responsibilities
at Termination.
Upon termination of this Agreement for any reason, Carrier, ATM
Manager, ATM Owner and Elan will cooperate to complete the following
activities.
|
|
|
1.
|
Carrier
must remove all Currency from the ATMs of ATM Owner and deliver the
Currency to Carrier's cash vault.
|
|
|
2.
|
Carrier
shall provide final terminal balancing activity and reports to Elan, ATM
Manager and ATM Owner.
|
|
|
3.
|
Elan
shall perform a final balance on each ATM and cash
vault.
|
|
|
4.
|
Upon
agreement by Elan, ATM Owner, ATM Manager and Carrier that all ATMs and
cash vaults are in balance, Elan shall instruct Carrier as to the location
where the Currency shall be delivered. Carrier will thereafter deliver the
Currency to the designated location. Risk of loss of the Currency remains
with Carrier until the Currency is accepted by Elan at the designated
location. All fees and charges relating to the delivery of the Currency to
Elan to Carrier shall be paid in accordance with Section
IV.B.3.
|
|
|
5.
|
The
fees for the use of the Currency shall be assessed by Elan until such time
as Elan has accepted the final deposit from the
Carrier.
|
|
|
G.
|
No
Creditor Relationship. Entering
into this Agreement does not, nor is it intended to create a
debtor-creditor or lending arrangement or relationship between Elan and
any other Party. In consideration of Elan providing Currency to the ATM
Manager for the ATMs, ATM Manager agrees to pay Elan the compensation
determined in accordance with the terms and conditions of this Agreement,
as the same may be amended from time to
time.
|
|
XI.
|
GENERAL
PROVISIONS.
|
|
|
A.
|
Accounting
Principles.
Where the character or amount of any item of income, revenue,
costs, expenses or similar monetary calculation is required to be
determined or other accounting computation is required to be made for
purposes of this Agreement, this will be done in accordance with
appropriate accounting principles, which shall be consistently
applied.
|
|
|
B.
|
Attorneys'
Fees. If any
dispute arises between the Parties regarding any Party's rights or
obligations pursuant to this Agreement, the prevailing Party will be
entitled to reasonable attorneys' fees attorneys' costs, expert witness
fees, and court costs incurred in connection with
litigation.
|
|
|
C.
|
Compliance
with Laws. Each Party may rely on the other Parties' compliance
with all applicable laws. Violation of applicable law by a Party which
allows or permits said Party to take any action under or pursuant to this
Agreement which such Party would not otherwise have been able to do or
take, shall constitute a breach of this
Agreement.
|
|
|
D.
|
Assignment. ATM Owner,
ATM Manager and Carrier may not assign this
Agreement.
|
|
|
E.
|
Force
Majeure. No Party shall be liable for a delay in
performance hereunder where the cause for such delay is beyond the
reasonable control of that Party. Such causes shall include, without
limitation, acts of God; riots; acts of war; epidemics; governmental
regulations imposed after the fact; earthquakes or other disasters
("Occurrence"). Provided, however, that, where possible, written notice of
the cause of the delay shall be given, by the Party to the other Parties
within three (3) days after the Occurrence, and further provided that best
efforts shall be made to restore performance hereunder. If a delay by a
Party lasts more than five (5) business days, any of the other Parties
shall have the right to terminate this Agreement with no penalty, early
termination fees, or liquidated damages
applicable.
|
|
|
F.
|
Governing
Law. The rights and obligations of the Parties under
this Agreement shall be governed and interpreted by the internal laws of
the State of Minnesota, including the Minnesota Uniform Commercial Code,
without reference to the conflict of laws
rules.
|
|
|
G.
|
Jurisdiction. The
Parties hereby irrevocably submit to the nonexclusive jurisdiction of any
court of the State of Minnesota or the United States of America sitting in
Minneapolis, Minnesota, in any action or proceeding arising out of or
relating to this Agreement, and the Parties hereby irrevocably agree that
all claims in respect of such action or proceeding may be heard and
determined in any such court. The Parties hereby irrevocably waive, to the
fullest extent they may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The Parties agree
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
|
|
|
H.
|
Headings. The
headings contained in this Agreement are for convenient reference only,
and shall not be considered substantive, and shall not affect the
interpretation of this Agreement.
|
|
|
I.
|
Non-Exclusive. This
is not an exclusive agreement. Nothing in this Agreement is intended to
restrict Elan or Carrier from entering into similar agreements with any
third party.
|
|
|
J.
|
Notices. Except
as otherwise specified in Article X, Section E.1, any notice permitted or
required by this Agreement must be in writing and shall be deemed given
when sent by registered or certified mail, return receipt requested, or
overnight delivery, and addressed as
follows:
|
|
Original:
|
With
Copy To:
|
|||
|
To
Elan Financial Services:
|
Elan
Financial Services
ISO
ATM Sale Support
1255
Corporate Drive
Irving,
TX 75038
|
U.S.
Bank Legal Dept.
Mail
Stop BC-MN-H21N
800
Nicollet Mall
Minneapolis,
MN 55402
Attn:
Corporate Counsel,
Transaction
Services
|
||
|
To
ATM Owner:
|
Nationwide
Money Services
7800
Belfort Pkwy, Suite 165, Jacksonville, FL 32256
|
|||
|
To
ATM Manager:
|
Nationwide
Money Services
7800
Belfort Pkwy, Suite 165, Jacksonville, FL 32256
|
|||
|
To
Armored Carrier:
|
Pendum,
LLC
4610
S. Ulster, Suite 300
Denver,
CO 80237
|
|
|
K.
|
Relationship
of the Parties. No joint venture, partnership, agency, employment
relationship or other joint enterprise is contemplated by this Agreement.
No employee or representative of one of the Parties shall be considered an
employee of any of the other Parties. In making and performing this
Agreement, the Parties shall act at all times as independent contractors,
and at no time shall any Party make any commitments or incur any charges
or expenses for or in the name of the other
Party.
|
|
|
L.
|
Right
to Audit and Obtain Reports.
|
|
|
1.
|
Elan's
business operations are regularly audited by (i) various government
agencies having supervisory and regulatory authority over Elan (the
"Regulatory Authorities") and (ii) Elan's own internal auditors. Elan is
also required to audit its vendors.
|
|
|
2.
|
ATM
Owner, ATM Manager and Carrier must cooperate with Elan's efforts to meet
its regulatory obligations and must comply in a timely manner with Elan's
reasonable requests for documentation and information. ATM Owner, ATM
Manager or Carrier's refusal or failure to comply is a material breach of
this Agreement. If Elan reasonably determines that ATM Owner, ATM Manager,
or Carrier's data security, internal controls, or financial stability are
inadequate and not susceptible to cure within any reasonable time frame or
that an unacceptable risk to Elan or Elan's customer's exists, Elan may
terminate this Agreement by providing written notice to ATM Owner, ATM
Manager, or Carrier. Elan will identify its reasons for such termination
in the notice.
|
|
|
3.
|
The
following are deemed reasonable requests of Elan, with which ATM Owner,
ATM Manager, and Carrier must
comply:
|
|
|
(a)
|
ATM
Owner, ATM Manager and Carrier must make their books, records, and
operations relating to all products and services provided to Elan or
Elan's customers available for audit or inspection by the Regulatory
Authorities, by Elan, or by Elan's independent auditors with at least two
(2) business days advance notice from
Elan.
|
|
|
(b)
|
Within
five (5) business days of Elan's written request, ATM Owner, ATM Manager
or Carrier must provide all applicable audit reports, including but not
limited to: performance, financial, internal control and security reviews;
penetration testing; intrusion detection; and firewall
configuration.
|
|
|
(c)
|
If
a deficiency is noted or determined in any such audit report,
ATM Owner, ATM Manager or Carrier must also provide to Elan any and all
documentation related to resolution of the audit deficiencies and the
corrective actions implemented to prevent recurrence of such
deficiency.
|
|
|
(d)
|
ATM
Owner, ATM Manager or Carrier must reasonably cooperate with Elan's
periodic vendor assessments. Elan is required on an annual or semi-annual
basis to perform the following vendor
assessments:
|
|
|
1.
|
Risk
assessments with respect to the providers of goods and services for Elan's
business; and
|
|
|
2.
|
Data
security, internal controls and financial stability of those providers
commensurate with the level of risk
assessed.
|
|
|
(e)
|
Non-Publicly
Traded Organizations. If ATM Owner is not listed on a recognized
stock exchange in the United States, then ATM Owner shall provide
unaudited financial statements, as soon as available and in any event not
later than ninety-one (91) days after the end of each fiscal year of ATM
Owner. ATM Owner shall provide individual tax returns of ATM Owner's
principles if requested by Elan. ATM Owner agrees to provide to Elan, from
time to time, such other information regarding the business, operations,
affairs, and financial condition of ATM Owner as Elan may reasonably
request, including all documentation supporting employee bonds and
insurance policies of ATM Manager and ATM
Owner.
|
|
|
Publicly
Traded Organizations. If ATM Owner is listed
on a recognized stock exchange in the United States, Elan shall obtain
from publicly available sources Form 10-K, as provided by ATM Owner to the
U.S. Securities and Exchange Commission.. ATM Owner agrees to provide to
Elan, from time to time, such other information regarding the business,
operations, affairs, and financial condition of ATM Owner as Elan may
reasonably request, including all documentation supporting employee bonds
and insurance policies of ATM Manager and ATM
Owner.
|
|
|
M.
|
Use
of Name. All Parties agree not to refer to any other
Party directly or indirectly in any promotion or advertisement, any
metatag, any news release or release to any general or trade publication
or any other media without the prior written consent of the Party whose
information is intended to be used, which consent may be withheld at that
Party's sole and complete
discretion.
|
|
|
N.
|
Signage. Elan
or Carrier, as agent for Elan, may post signage on the vaults of the ATMs
indicating ownership of the
Currency.
|
|
|
O.
|
Severability. If
any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the Term
hereof, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof; and the remaining provisions
of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid or unenforceable provision, there shall be added automatically as
a part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid
and enforceable.
|
|
|
P.
|
Successors. Subject
to the foregoing, this Agreement shall be binding upon, and inure to the
benefit or, the successors and permitted assigns of the Parties
hereto.
|
|
|
Q.
|
Survival. Any
provision of this Agreement that requires performance or grants a benefit
after termination of the Agreement shall be deemed to survive the
termination of the Agreement.
|
|
|
R.
|
Entire
Agreement. This Agreement and the referenced exhibits,
attachments and schedules, contains the sole and complete understanding of
the Parties with respect to the subject matter hereof and supersedes all
prior agreements relating thereto, whether written or oral, among the
Parties.
|
|
|
S.
|
Authorization. No
Party hereto shall be legally bound hereunder until this Agreement has
been signed by a duly authorized representative of each Party
hereto.
|
|
|
T.
|
Exhibits.
|
Exhibit A - Currency
Amounts
Exhibit B - Carrier
Services
Exhibit C - Elan Fees
and Charges for ATM Manager
Exhibit D - ATM
Locations
Exhibit E - Elan Fees
and Charges for Carrier
IN WITNESS WHEREOF, the
Parties hereto, by and through their respective duly authorized representatives,
do execute this Agreement as of the year and day first above written by signing
their names in the appropriate place below.
|
ELAN
FINANCIAL SERVICES
|
NATIONWIDE
MONEY SERVICES
|
|||
|
(“Elan”)
|
(“ATM
Owner”)
|
|||
|
By:
|
/s/ Stephen E. Gauger
|
By:
|
/s/ George A. McQuain
|
|
|
Print:
|
Stephen E. Gauger
|
Print:
|
George A. McQuain
|
|
|
Title:
|
Vice President
|
Title:
|
CEO
|
|
|
Date:
|
10/14/09
|
Date:
|
||
|
NATIONWIDE
MONEY SERVICES
|
PENDUM,
LLC
|
|||
|
(“ATM
Manager”)
|
(“Carrier”)
|
|||
|
By:
|
/s/ George A. McQuain
|
By:
|
/s/ David Maginsky
|
|
|
Print:
|
George A. McQuain
|
Print:
|
David Maginsky
|
|
|
Title:
|
CEO
|
Title:
|
SVP and General Counsel
|
|
|
Date:
|
Date:
|
10/8/09
|
||
EXHIBIT
A
CURRENCY
AMOUNTS
|
I.
|
CURRENCY
AMOUNT. Elan shall
provide up to forty million U.S. Dollars ($30,000,000.00) in the aggregate
in Currency to ATM Owner and ATM Manager. For purposes of
clarity, if Elan, ATM Owner and ATM Manager enter into other contractual
relationships, together, with other carriers, the total amount of Currency
provided to ATM Owner and ATM Manager will not exceed thirty million U.S.
Dollars ($30,000,000.00).
|
EXHIBIT
B
CARRIER
DUTIES
|
I.
|
DEFINITIONS.
|
The
following definitions apply only to this Exhibit B.
|
|
A.
|
"ATM
Balancing Group" means the Elan staff in Minneapolis, Minnesota or Irving,
Texas that balance each ATM using the dispense activity, load and residual
amounts. This group will work with Carrier to research and resolve all ATM
differences.
|
|
|
B.
|
"Cash
Management Group" means the Elan staff in Minneapolis, Minnesota or
Irving, Texas that orders currency and discusses any currency matter with
Carrier. This group serves as an escalation point for
Carrier.
|
|
|
C.
|
"Distinctively
and Securely Sealed" means that the container(s) used to hold the currency
to be transported by Carrier has been closed and fastened with a device
having a distinguishing mark that can be clearly seen and recognized as
Elan's (or that of the Federal Reserve or a correspondent bank, if
applicable) special mark. Said device is attached to the container(s) so
that the currency is enclosed and firmly fixed therein and said device
cannot be removed and reapplied to the container(s) without leaving
visible external evidence of tampering with the
container(s).
|
|
|
D.
|
"Dual
Control" means that the services must be performed by i) Carrier's
representative in the presence of one or more other qualified Carrier
representatives, or ii) Carrier's representative working at all times
under video camera surveillance (video camera surveillance shall provide
full view of all work areas).
|
|
|
E.
|
"Emergency
Cash ("E-Cash")" means an amount of Currency established by ATM Manager
and Elan to replenish an ATM that runs out of Currency prior to its
standard cash balancing day, or to facilitate cash requirements for the
installation of a new ATM. Elan will determine the amount of Emergency
Cash to be held by Carrier and/or provide the Carrier with specific
instructions contained in the most recent version of Elan's E-Cash
guidelines.
|
|
|
F.
|
“Emergency
Cash Call” means services provided by Carrier where, upon request by ATM
Manager or Elan, Carrier will make an unscheduled Replenishment trip to a
particular Elan ATM. Specific Currency and ATM site locations will vary
per occurrence. The cost of an Emergency Cash Call will be as established
in Exhibit E.
|
|
|
G.
|
"Replenishment"
means replenishment of an ATM with Currency in denominations determined by
Elan.
|
Any other
capitalized terms in this Exhibit B shall have the meaning attributed to such
term in the language of the exhibit, or if no definition appears, the term shall
have the meaning as set forth in the Agreement.
|
II.
|
ATM CASH
REPLENISHMENT.
|
|
|
A.
|
General. Carrier shall be
available Sunday through Saturday, including all holidays except Christmas
Day, to replenish ATMs with Emergency Cash. Specific Replenishment
requirements are set forth and communicated by Elan Cash Management.
Carrier must use an armored vehicle and use a minimum of two person crews
for all Replenishment services.
|
|
|
B.
|
Initial
Currency Loading of a New ATM Installation shall occur within two (2)
business days of the date Carrier is notified of the New ATM
Installation.
|
|
|
C.
|
Property
in Distinctively and Securely Sealed Shipments. Carrier will receive
currency for replenishing ATMs in Distinctively and Securely Sealed
Shipments from locations local to Carrier's facility providing service to
the applicable ATM location, identified by Elan. Carrier will give a
receipt for currency as evidence that Carrier received the currency.
Carrier is responsible to safeguard such currency until it is placed in an
ATM pursuant to this Agreement or until it is returned to Elan's
designated agent as evidenced by a receipt for such currency from such
designated agent. If the Shipment bag(s) or container(s) does not appear
to be sealed, Carrier must not accept said bag(s) or container(s) from
Elan or its designated agent.
|
|
|
D.
|
Currency
in Property Shipment. Carrier may
obtain currency for replenishing ATMs in a currency shipment from Elan, or
a third-party source as identified by Elan. Elan requires that all
currency received by Carrier must be strap counted under Dual Control
prior to being placed in Carrier's inventory or in an ATM vault. Carrier
must report any variance in the currency count to Elan's Cash Management
Group within twenty-four (24) hours of discovery, Carrier may not utilize
any currency from the Shipment, and Carrier must return the strapped
currency to Elan in accordance with the Cash Management Group's
instructions. If no variance exists in the strap count, Carrier shall,
under Dual Control, consolidate the currency and package it in secured
cassettes or poly pac bags in amounts specified in Elan's written
instructions for delivery to the ATM. Carrier shall not be responsible for
differences within strapped packs of currency which Carrier verifies by
strap count under Dual Control, it being understood and agreed that in
handling any such shipment of currency, Carrier's strap count or piece
count, as applicable, shall be binding and conclusive unless further
investigation provides convincing evidence
otherwise.
|
|
|
E.
|
Keys. ATM
Manager will provide Carrier with an adequate number of site access keys
and ATM keys in order to provide timely services under this Agreement for
replenishment services. Carrier is responsible for securely maintaining
all keys and keeping them in good working
order.
|
|
|
F.
|
ATM
Supplies.
ATM Manager shall provide • Carrier with a necessary reserve of all
consumable supplies necessary to support the
ATMs.
|
|
|
G.
|
Emergency
Cash. Upon
notification from ATM Manager or Elan, Carrier agrees to replenish an ATM
with emergency cash with in four (4) hours, plus travel time, of such
notice.
|
|
III.
|
VAULT CASH
BALANCING.
|
|
|
A.
|
Carrier
shall not allow any representative of any other entity, to have access to
the cash contained in the ATMs.
|
|
|
B.
|
Carrier
shall obtain currency for the ATMs only from the cash vaults designated by
Elan. The amount of the currency obtained shall be as designated by Elan
and shall be in accordance with the limits contained in Exhibit
A.
|
|
|
C.
|
Until
such time as the currency is transported to the ATMs, Carrier shall store
currency received from Elan in separate lockers within Carrier's vault. In
no event shall Carrier co-mingle the currency received from Elan with that
received from any other financial
institution.
|
|
|
D.
|
Carrier
shall report all ATM funds held within its vault, including any currency
that has been pre-loaded into ATM cassettes or sealed bags. ATM cassettes
and sealed bags shall not be pre- loaded more than one (1) business day
prior to the scheduled service day.
|
|
|
E.
|
Carrier
shall notify the Cash Management Group representative at Elan appointed to
work with Carrier of any vault cash overages and shortages on the day they
are identified.
|
|
|
F.
|
Carrier
shall hold unfit currency in inventory of currency and report it as unfit
currency. When the amount of unfit currency is a full strap by
denomination, Carrier
shall contact the Cash Management representative for instructions on where
to deposit
or exchange the currency.
|
|
|
G.
|
Carrier
shall correct any clerical or other error made on a vault or terminal
activity summary sheet on the date such error is discovered or Carrier is
informed of the error, whichever comes first. Such corrections must be
made by completing a new vault or terminal activity summary sheet and
under no circumstances shall the Carrier revise, backdate, or recreate a
prior day's vault or terminal activity summary
sheet.
|
|
IV.
|
ATM
BALANCING.
|
|
|
A.
|
Carrier
shall use a cash swap method to perform cash replenishments at all
ATMs.
|
|
|
B.
|
Carrier
shall provide Elan with an updated route schedule whenever a change in
frequency or balancing day is made.
|
|
|
C.
|
Carrier
shall complete the closeout administrative function at the ATM whenever
the cash is swapped.
|
|
|
D.
|
Carrier
shall fine bill count all returned/residual cash from the ATMs and shall
not mark bills by strap as a method of counting back returned/residual
cash.
|
|
|
E.
|
Carrier
shall report returned/residual cash on the business day following
service.
|
|
|
F.
|
Carrier
shall handle all overages and shortages of cash as proscribed in Section C
hereof.
|
|
|
G.
|
Carrier
shall balance and properly close out every ATM at intervals no greater
than every twenty-eight (28) days.
|
|
V.
|
CASH OVER/SHORT
POLICY.
|
|
|
A.
|
The
ATM Balancing Group will identify all cash differences and notify Carrier
in accordance with Section X.E of the
Agreement.
|
|
|
B.
|
Reimbursement
of Elan for any shortages shall be accomplished in accordance with Section
X.D of the Agreement
|
|
|
C.
|
If
Carrier is swapping cassettes, Carrier shall configure all cash cassettes
properly to ensure that the correct currency denomination is
dispensed.
|
|
|
1.
|
In
the event that Carrier discovers that a cassette is not configured
properly, configures a cassette incorrectly, or loads the cassettes in an
ATM improperly, Carrier will perform that corrective activities set forth
in b.
|
|
|
2.
|
For
incorrect loading of cassettes as described in a., Carrier shall: i)
immediately perform a full cash balance on the ATM and correct the
improper configuration of a cassette or the incorrect loading of cassettes
in an ATM; ii) immediately notify Elan's ATM Cash Balancing Department and
ATM Manager via telephone and provide specific information of the error
that has occurred; and iii) include specifics regarding the error on the
next business day's vault summary.
|
|
|
D.
|
Cash
difference caused by a clerical error on the vault or terminal activity
summary sheet, require Carrier to make a correction on the vault or
terminal activity summary sheet on the date Carrier discovers or is
informed of the error.
|
|
|
E.
|
Elan
will provide Carrier with a notice of a Loss and a claim for reimbursement
in accordance with the requirements of Section X.E of the Agreement and
provide the information called for in said Section X.E of the Agreement.
If requested by Carrier, and to the extent available, Elan and ATM Manager
will provide Carrier with additional information that is reasonably
necessary for Carrier to conduct its
investigation.
|
|
VI.
|
TIMING REQUIREMENTS
FOR REPORT VAULT/AMT BALANCING
ACTIVITY.
|
|
|
A.
|
Carrier
shall use the reporting format and delivery as required by
Elan.
|
|
|
B.
|
Carrier
shall provide Elan with a vault summary each business day, including
business days when Carrier has performed no
services.
|
|
|
C.
|
Carrier
shall provide Elan with a terminal activity summary on a daily basis,
including business days when Carrier has performed no
services.
|
|
|
D.
|
Carrier
shall provide the vault summary and terminal activity summary via
facsimile or email to Elan ATM Cash Management no later than 2:00 p.m.
Central Time on the business day following the day for which the report
was prepared.
|
|
|
E.
|
The
Carrier shall include in the vault summary and terminal summary activity
reports detail regarding previous cycle
activity.
|
|
VII.
|
ATM SERVICE
MEETS.
|
If ATM
Manager deems that a call necessitates access to the cash or the vault, ATM
Manager must make a request that Carrier meet the ATM Manager at the ATM. All
parties must make best efforts to schedule the meet expeditiously. Carrier
agrees that it will make personnel available for the meet not to exceed four (4)
hours of the request from ATM Manager. The cost of meetings will be detailed in
Exhibit C and
Exhibit E and
will be invoiced to ATM Manager by Elan.
|
VIII.
|
CARRIER PERSONNEL
REQUIREMENTS.
|
|
|
A.
|
Training. It is
Carrier's responsibility to ensure that appropriate training is provided
to its employees, representatives, agents and other individuals who will
perform Carrier's obligations set forth in this Agreement and the attached
exhibits, including but not limited to the ability to recognize and
escalate to Elan the need for Bio-hazard services to be provided by a
third party at Elan ATM sites. Carrier represents that the training
provided meets all guidelines of any insurance requirements. Carrier's
employees, agents or representatives shall make reasonable efforts to
comply with Elan's policies and procedures, provided that, Elan has
provided Carrier with a written copy of such relevant policies and
procedures, upon Carrier's request.
|
|
|
B.
|
Required
Criminal Background and Drug Pre-screening
of Personnel. Carrier
hereby represents that it conducts, at no additional cost to Elan, the
Required Pre-screening measures, listed herein below, for all of Carrier's
agents and employees ("Personnel") assigned to work for Elan. Provided,
however, that Carrier understands that Carrier shall be solely responsible
for compliance with all local, state and federal laws and regulations
applicable to the Required Pre-screening measures and Carrier's
Personnel.
|
|
|
1.
|
References
and Employment Verification. Personal and business
reference checks resulting in reasonable and satisfactory verification of
previous employment and of periods of non-employment (such as enrollment
in colleges or universities, etc.);
and
|
|
|
2.
|
Drug
Test. At a minimum a five panel drug test must be
conducted within twenty-four (24) hours of informing the specified
personnel of his/her assignment at Elan or its affiliate. At a minimum,
the drug test must meet the standards set forth in the attached protocol
(Attachment 1, "Drug Screening Protocol"). The specified personnel may
begin work under this Agreement only if the drug test results are
negative. If the Carrier has conducted the required tests with regard to
the assigned employee at some point prior to the assignment and, since
such testing, the employee has been continuously employed by Carrier, the
requirements set forth in this Section 2.b shall be deemed to have been
fulfilled by Carrier.
|
|
|
3.
|
Criminal
Background Check. At a minimum, the criminal background
check must include the county or counties listed by Carrier's Personnel as
current places of residence and employment, and for past places of
residence and employment for the previous ten (10) years. See the Section,
Social Security Number Cross Check, below, an expanded criminal background
check may be required in certain
cases.
|
|
|
4.
|
Social
Security Number Cross Check. Where the social security number cross
check results in the discovery of additional (undisclosed) counties, in
such undisclosed counties, the criminal background check for the
particular Personnel will include those undisclosed
counties.
|
|
|
C.
|
Carrier's
Personnel may not begin work under this Agreement if any of the Required
Prescreening measures, as set forth above, have not been conducted or if
the drug test results are positive or if there are disclosed or
undisclosed criminal convictions, or pretrial diversion, which violate
FDIC Section 19 guidelines (acts of dishonesty or breach of trust, theft);
or conviction or pretrial diversion for criminal offences concerning the
manufacture, sale, distribution of or trafficking in controlled
substances, to the extent that pretrial diversions are able to be
considered under state law.
|
|
|
D.
|
If
the Required Pre-screening measures result in positive drug test results
and/or discovery/disclosure of any criminal convictions or pretrial
diversion (other than minor traffic offenses) for any of Carrier's
Personnel, each of such Personnel shall not begin servicing Elan's ATMs
unless:
|
|
|
1.
|
Carrier
forwards the Required Pre-screening results for each of such Personnel to
Customer's Director of Employment Services, (provided that Carrier shall
be responsible for forwarding such only in compliance with all applicable
local, state, and federal laws);
and
|
|
|
2.
|
Elan's
Director of Employment Services consents specifically and in writing to
assignment of each of such Personnel to work for Elan under this
Agreement. Additionally, at Elan's written request, with respect to any
Carrier Personnel assigned to work for Elan under this Agreement and
specified in such written request, Carrier shall verify in writing that
the Required Pre-screening measures were conducted, that the drug test
results were negative, and that no criminal offenses (other than minor
traffic offenses) were discovered. Elan acknowledges that to the extent
Carrier is not subject to the FDIC regulations, Carrier must comply with
various state laws regarding employment practices. Notwithstanding the
foregoing, if Carrier's compliance with state law results in Carrier's
employee failing to satisfy any one or more of the above listed
pre-screening criteria, Carrier shall not permit such employee to provide
service to Elan without Elan's advance written
consent.
|
|
|
3.
|
Subcontractors. Carrier
agrees not to contract with any subcontractor or other third person to
perform, in whole or in part, any of Carrier's obligations hereunder
without the prior written consent of Elan, which consent or refusal shall
not be unreasonably delayed. Carrier agrees it will require all
subcontractors to consent, in writing, to i) perform their services in
accordance with the terms and conditions and the standards set forth in
this Agreement, including but not limited to the terms of Section VI,
Confidentiality, and ii) to defend and indemnify Elan from and against
actions, suits, proceedings, claims or liability based on their acts and
omission to the same extent Carrier agrees to defend and indemnify Elan.
Notwithstanding the foregoing, Carrier agrees to be responsible to Elan
for any breach of this Agreement by a Subcontractor to the same extent
that Carrier would be responsible to Elan for Carrier's own such breach of
the Agreement.
|
|
IX.
|
CARRIER
LIABILITY.
|
|
|
A.
|
Carrier
shall be liable for Losses from an ATM if such losses result from
Carrier's actions, or failure to act, including without limitation (a)
kidnapping or robbery of Carrier employees, (b) negligence or dishonesty
of Carrier employees, management or owners, or (c) damage to Currency
cassettes or cartridges caused by
Carrier.
|
|
|
B.
|
Carrier
shall not be liable for Losses resulting from (a) ATM equipment hardware
malfunction, (b) currency dispensed due to mistake for fraudulent
instruction, manually or electronically transmitted to an ATM, (c) access
to the ATM by a third party which access is not made possible by Carrier,
or (d) breaking and entering or burglary to the
ATM.
|
|
ELAN
FINANCIAL SERVICES
|
NATIONWIDE
MONEY SERVICES
|
|||
|
(“Elan”)
|
(“ATM
Owner”)
|
|||
|
By:
|
/s/ Stephen Gauger
|
By:
|
/s/ George A. McQuain
|
|
|
Print:
|
Stephen Gauger
|
Print:
|
George A. McQuain
|
|
|
Title:
|
Vice President
|
Title:
|
CEO
|
|
|
Date:
|
10/14/09
|
Date:
|
||
|
NATIONWIDE
MONEY SERVICES
|
PENDUM, LLC | |||
|
(“ATM
Manager”)
|
(“Carrier”) | |||
|
By:
|
/s/ George A. McQuain
|
By:
|
/s/ David Maginsky
|
|
|
Print:
|
George A. McQuain
|
Print:
|
David Maginsky
|
|
|
Title:
|
CEO
|
Title:
|
SVP and General Counsel
|
|
|
Date:
|
Date:
|
10/8/09
|
||
CONFIDENTIAL
EXHIBIT
C
FEES AND CHARGES FOR ATM
MANAGER
|
I.
|
CURRENCY
FEES.
|
|
|
A.
|
ATM
Owner/Manager will be charged a "Cash Rate", defined as the highest Prime
Rate as published by The Wall Street
Journal for the applicable month per the schedule below, for the
Cash Balance by terminal.
|
|
Monthly Cash Balance
|
Cash Rate
|
|
|
0 –
1,000,000
|
Prime
– 1%
|
|
|
1,000,0001+
|
Prime
–
1.25%
|
The cash
rate as quoted above will be applied as a "step rate" and not a "blended rate",
meaning, as the outstanding cash balance moves into a higher rate tier, the rate
will apply to the entire cash balance. For example, a monthly outstanding
balance of $1,875,000 would have a flat rate of Prime minus 25 basis points
applies to the entire balance. Alternatively, a monthly outstanding balance of
$2,875,000 would have a flat rate of Prime minus 50 basis points applies to the
entire outstanding balance.
|
|
B.
|
The
"Cash Balance" will be determined by taking the average cash in the
terminal multiplied by • a Factor of X. The Factor is determined by the
frequency of cash loads during the course of one month of services. Factor
Schedule for service frequencies as follows: Every 28 day Service = 1.25;
Bi-Weekly Service = 1.45; Weekly Service =1.8; Semi-Weekly Service =
2.55.
|
|
Vault Cash valuation
example:
ATM
is loaded with $10,000 on 1/1, serviced on 1/31 and $2,000 residual cash
remains in the ATM. The average cash in the terminal is ($10,000 load +
$2,000 residual) / 2, = to $6,000. $6,000 * 1.25 factor = $7,500 (the Cash
Balance). For this example, Prime = 7% and the Cash Rate is Prime + 2%, or
9%.
|
|
Cash
Balance
|
$7,500.00 | |
|
Times
Cash Rate
|
9.00% | |
|
Times
days in the month, Divided by 365 days
|
31/365
(in a 31 day month)
|
|
|
Calculation
|
$57.33 |
|
II.
|
CARRIER
FEES.
|
|
Weekly
Cash Replenishment Services
|
$0.00
|
|
Every
Other Week Cash Replenishment Services
|
$0.00
|
|
Every
28 Day Cash Replenishment Services
|
$0.00
|
|
Emergency
Cash Services
|
$0.00
per hour
|
|
Meet
Services
|
$0.00
per hour
|
|
|
A.
|
If
these fees are $0.00, ATM Manager is paying Carrier directly for Carrier
Services.
|
|
|
B.
|
Fees
do not include taxes and
surcharges.
|
|
III.
|
OTHER
FEES.
|
|
Other Fees
|
One
Time
|
Monthly Recurring
|
Description
|
|||
|
Insurance
|
$2,500
deductible
|
$15
per terminal
|
“At
Terminal” insurance – If an ATM is stolen with Currency still present,
customer is responsible for the first $2,500 of the Currency lost, per ATM
per occurrence. Bank is responsible for the remainder of the
Currency lost. If the amount lost is less than $2,500, Customer
is responsible for the loss in its entirety.
|
|||
|
Cash
Management
|
WAIVED
|
Includes
prediction, settlement, reconciliation, exception processing, ordering,
coordination of vendors
|
||||
|
Full
Function Cash Management and Monitoring Package
|
$6.00
per terminal
|
Includes
prediction, settlement, reconciliation, exception processing, ordering
coordination of vendors and Device Monitoring.
|
||||
|
Heartbeats
|
WAIVED
on all heartbeats per terminal per day
|
Heartbeat
transactions must be turned on for monitoring. Elan agrees to
waive all fees on heartbeat transactions per terminal per
day.
|
|
|
A.
|
These
fees are based upon Elan current insurance variables. If these variables
change, Bank reserves the right to change
rates.
|
|
ELAN
FINANCIAL SERVICES
|
NATIONWIDE MONEY SERVICES | |||
|
(“Elan”)
|
(“ATM Manager”) | |||
|
By:
|
/s/ Stephen Gauger
|
By:
|
/s/ George A. McQuain
|
|
|
Print:
|
Stephen Gauger
|
Print:
|
George A. McQuain
|
|
|
Title:
|
Vice President, Authorized
Signer
|
Title:
|
CEO
|
|
|
Date:
|
10/14/09
|
Date:
|
||
EXHIBIT
D
ATM
LOCATIONS
|
ATM
ID
|
ATM
OWNER
|
LOCATION
NAME
|
ADDRESS
|
CITY
|
STATE
|
ZIP
|
MAKE
|
|
ELAN
FINANCIAL SERVICES
|
NATIONWIDE
MONEY SERVICES
|
|||
|
(“Elan”)
|
(“ATM
Owner”)
|
|||
|
By:
|
/s/ Stephen Gauger
|
By:
|
/s/ George A. McQuain
|
|
|
Print:
|
Stephen Gauger
|
Print:
|
George A. McQuain
|
|
|
Title:
|
Vice President
|
Title:
|
CEO
|
|
|
Date:
|
10/14/09
|
Date:
|
||
|
NATIONWIDE
MONEY SERVICES
|
PENDUM,
LLC
|
|||
|
(“ATM
Manager”)
|
(“Carrier”)
|
|||
|
By:
|
/s/ George A. McQuain
|
By:
|
/s/ David Maginsky
|
|
|
Print:
|
George A. McQuain
|
Print:
|
David Maginsky
|
|
|
Title:
|
CEO
|
Title:
|
SVP and General Counsel
|
|
|
Date:
|
Date:
|
10/8/09
|
||
CONFIDENTIAL
EXHIBIT
E
ELAN FEES AND CHARGES FOR
CARRIER
|
I.
|
CARRIER
FEES.
|
|
Weekly
Cash Replenishment Services
|
$0.00
|
|
Every
Other Week Cash Replenishment Services
|
$0.00
|
|
Every
28 Day Cash Replenishment Services
|
$0.00
|
|
Emergency
Cash Services
|
$0.00
per hour
|
|
Meet
Services
|
$0.00
per
hour
|
x If this box
is checked, this Exhibit is not applicable as ATM Manager pays fees directly to
Carrier.
**All
fees in this Exhibit are in accordance with Servicing Agreement with U.S. Bank
and Carrier, therefore are left blank in this section**