EXHIBIT 10.1
PALM DESERT NATIONAL BANK
ATM CASH AGREEMENT
This ATM Cash Agreement (this "Agreement") is made by and between PALM
DESERT NATIONAL BANK ("Bank"), located at 00-000 Xx Xxxxx, Xxxx Xxxxxx,
Xxxxxxxxxx 00000, and CARDTRONICS, LP ("Company"), located at 0000 Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, with Bank and Company hereinafter sometimes
referred to as "party" or "parties," with reference to the following:
RECITALS
WHEREAS, Company proposes to operate automated teller machines ("ATMs")
at various locations ("ATM Sites"); and
WHEREAS, Bank is willing to provide or arrange with third parties to
provide funds ("ATM Cash") for certain ATM Sites under the terms outlined below;
NOW, THEREFORE, for good and valuable consideration, Bank and Company
agree as follows:
AGREEMENT
1. DESIGNATED ATMS. Bank agrees to provide ATM Cash for the ATMs
designated in EXHIBIT "A" of this Agreement. Bank and Company
may amend EXHIBIT "A" from time to time in writing. Company is
responsible for requesting from Bank the timing and amount of
ATM Cash shipments. However, Bank will work closely with
Company to insure adequate ATM Cash is maintained at the ATM
Sites.
2. ATM CASH. Bank agrees to provide ATM Cash for the ATMs. Bank
may, for certain designated ATMs, use the cash of a third
party vault cash provider, in which case only cash provided by
the third party vault cash provider shall be used in the
designated ATMs. Company shall treat all such cash as ATM Cash
and all provisions of this Agreement as applicable to Bank's
ATM Cash shall apply equally with regards to such third party
cash, including all provisions regarding Bank's access to and
ownership of ATM Cash and Company's liability therefore;
provided, however, that Bank's "ownership" of such third party
cash is in the capacity of agent.
3. ARMORED CARRIER. Company and Bank shall enter into a Tri-party
agreement (the "Tri-party Agreement") with an armored carrier
to transport all ATM Cash. The Tri-party Agreement shall
require the armored carrier to maintain insurance coverage for
ATM Cash; as such coverage is described in Section 11 hereof.
Transportation of ATM Cash between Bank (or a third party,
such as the Federal Reserve Bank) and ATM Sites will be done
only with armored carriers who have executed a Tri-party
Agreement and are approved by the Bank. Company shall be
solely responsible for the cost of such armored carrier
services under any Tri-party Agreement and shall make payment
arrangements as set forth on EXHIBIT "C". Company will pay
costs directly billed to Bank for Company's cash deliveries.
Company will ensure, through its contracts with the armored
carrier, that the armored carrier is instructed and
acknowledges, in writing, that the ATM Cash delivered under
any Tri-party Agreement is the sole property of Bank or the
Third Party Provider and that the armored carrier disavows any
claims to the ATM Cash for any reason whatsoever, that the ATM
Cash must be segregated from all other cash held by the
armored carrier in the armored carrier's vault or elsewhere,
including segregation of Bank's ATM Cash from ATM Cash
provided by a Third Party Provider, and that Bank can request
the return of such cash at any time in the Bank's sole and
absolute discretion.
4. ATM MAINTENANCE. The Company shall be solely responsible for
first line maintenance and second line maintenance on all
ATMs, including the cost of such maintenance, consistent with
the provisions of Section 9.
5. ATM ELECTRONIC FUND TRANSACTIONS. Company's agreement (the
"EFT Agreement") with any entity (the "ATM Network Driver") to
provide the necessary communications and networking to settle
ATM transactions involving ATM Cash must provide for the
settlement for ATM Cash transactions in the manner outlined in
EXHIBIT "D" of this Agreement. Company shall be solely
responsible for all costs or fees charged by the ATM Network
Driver under the EFT Agreement for the ATM transactions.
6. ATM SITE AGREEMENT. Company's agreement(s) with third parties
that own on operate ATM Sites must acknowledge Bank's sole
ownership of all ATM Cash and disavow any claims to the ATM
Cash for any reason whatsoever. If requested, Company shall
provide Bank with either (i) a copy of the ATM Site Agreement
for any ATM covered under this Agreement, or (ii) a letter
executed by the third party owner/operator acknowledging
Bank's ownership of the ATM Cash and disavowing any claim or
right to the ATM Cash for any reason whatsoever. If requested
by Company, Bank will execute a nondisclosure or
confidentiality agreement wherein Bank agrees to keep
confidential any terms and conditions of such agreements;
provided, however, Bank may provide copies of the ATM Site
Agreement and any other agreements relating to the operation
of the ATM to any Third Party Provider whose cash is used at
the ATM, provided such provider agrees to the same
confidentiality terms.
7. BANK'S OWNERSHIP OF ATM CASH. Company hereby acknowledges that
Bank is at all times the sole owner of all ATM Cash prior to
its withdrawal by cardholders from ATMs, and that the ATM Cash
is treated as Bank's "vault cash." No other person, including
Company, shall have any right, title, claim or interest in the
ATM Cash prior to its withdrawal by cardholders as
contemplated by this Agreement. Bank's ownership of and right
to access ATM Cash shall not be subject to any claim, set off,
arbitration or lien by Company or others under any
circumstances. To the extent ATM Cash is provided by a third
party vault cash provider, the parties hereto agree and
acknowledge that Bank is acting as such third party's agent
with respect to ownership of the ATM Cash.
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8. BANK'S ACCESS TO ATM CASH. Company shall arrange with armored
carriers, ATM maintenance personnel and ATM Site owners for
Bank to have ready access to its ATM Cash (wherever located)
upon its request. Company understands and agrees that such
funds must be readily available to Bank for reserve purposes
(Federal Reserve Board Regulation D, Section 204.2(k)) and to
satisfy the demands of Bank's depositors. Bank shall have the
right to demand the return of any portion or all of its ATM
Cash at any time, with or without cause. Without limiting the
generality of the foregoing, Bank shall be entitled to demand
the return of its ATM Cash whenever: (a) it is directed to do
so by state or federal regulatory agencies; (b) it needs the
ATM Cash to satisfy the claims of its depositors; (c) Bank has
reason to believe that its ATM Cash may be subject to loss
through fraud or other means; (d) Bank has reason to believe
its access to ATM Cash may be delayed (e.g., due to a
threatened strike or labor dispute); (e) Company breaches any
of its agreements with armored carriers, processors,
maintenance companies or ATM Site owners who handle or have
access to ATM Cash; (f) Company breaches this or any other
Agreement with Bank; (g) Bank has reason to believe that ATM
transactions will not be processed in a correct or timely
fashion, or that Bank will not receive timely payment for ATM
Cash disbursed to cardholders; (h) an ATM processor,
maintenance company, armored carrier, or ATM Site
owner/operator breaches its agreement with Company with
respect to ATM Cash; (i) Bank is requested to do so by a Third
Party Provider, to the extent the ATM Cash is provided by that
Third Party Provider; or (j) ATM Cash is determined not to be
vault cash for reserve purposes. Bank's access to any ATM for
purposes of removing ATM Cash may be done only with the
armored carrier designated in the Tri-Party Agreement between
Bank, Company and said armored carrier. Although not a
prerequisite or condition to its right to remove ATM Cash,
Bank will endeavor to give Company three (3) days written
notice of its decision (for whatever reason) to remove ATM
Cash. Bank is required to notify Company in writing of its
decision to remove ATM Cash at the same time Bank issues
instructions/orders to the armored carrier for retrieval of
the ATM Cash.
9. COMPANY ACCESS TO ATM CASH. Company agrees that it and its
employees and agents will not take possession of or have
access to ATM Cash at any time, either directly or through a
third party, without Bank's prior written consent. Company's
contracts with armored carriers for transportation and
maintenance shall prohibit Company's access to ATM Cash.
10. BANK ACCESS TO COMPANY RECORDS. Company shall provide Bank,
its agents, accountants, attorneys and regulatory examiners
with reasonable access to Company's records and contracts
involving the dispensing of any ATM Cash.
11. INSURANCE.
11.1. PROVIDED BY BANK. Bank, through its relationship with
its insurance carrier (the "ATM Cash Insurer"), will provide
insurance on the ATM Cash (regardless whether such cash is
provided by Bank or a Third Party Provider) at Company's
expense. The current pricing for insurance is set forth in
EXHIBIT "E" of this
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Agreement. The ATM Cash Insurer will issue Company a
certificate of insurance evidencing the limits of coverage
carried by the Bank. The limits of coverage are (i)
$300,000.00 per ATM; and (ii) $5,000,000.00 aggregate, with
policy retentions satisfactory to the Bank. Bank will use its
best efforts to cause all insurance policies on the ATM Cash
to expressly waive any right of subrogation, contribution or
any other form of recovery against Company, its officers,
directors or employees for any covered loss, save and except
for losses resulting from the intentional or criminal acts of
the Company, its officers, directors or employees. The Bank
will provide the Company with thirty (30) days prior written
notice of any material modification or termination of the
policy. The insurance policy provided by the ATM Cash Insurer
must insure both Bank and Company against any loss of ATM Cash
that is caused by or results from: (a) any theft, vandalism,
burglary or robbery of an ATM machine, except for such thefts
or robberies that occur when the armored carrier is present at
the ATM; (b) any fire; and (c) any Unexplained Disappearance
of ATM Cash. For purposes of this section, "Unexplained
Disappearance" shall mean that an identifiable specific amount
of cash cannot be properly reconciled between the respective
parties accounts, but shall not under any circumstance include
any loss of cash resulting from the criminal or negligent
conduct of any officer, director, employee or agent of the
Bank or the Armored Carrier. With respect to any Unexplained
Disappearance , if not covered by insurance, Bank will assume
responsibility.
11.2. PROVIDED BY COMPANY. The Bank will require, without
limiting Company's liability to Bank or third parties, that
Company maintain comprehensive or ("commercial") general
liability insurance, including coverage for products,
completed operation, and blanket contractual liability for
obligations undertaken by Company under this Agreement. Such
comprehensive general liability insurance shall provide for
minimum combined bodily injury and property damage coverage
limits of $1,000,000.00 per occurrence or $2,000,000.00
aggregate and name the Bank as additional insured. In
addition, the Company will obtain and maintain in force a
comprehensive crime policy including employee
dishonesty/fidelity coverage for all Company employees,
officers and agents, with fidelity coverage limits of not less
than $150,000.00 per employee. All policies (providing that
such insurance is primary to any liability insurance carried
by Bank) must be with insurance carriers that have an A.M.
Best rating of A-VII or better or otherwise acceptable to
Bank.
11.3. PROVIDED BY ARMORED CARRIER. Unless Bank and Company
agree otherwise, which agreement must be reduced in writing
and executed by both parties, every Tri-Party Agreement will
require the armored carrier identified therein to procure an
insurance policy(ies) with an insurance company (the "AC
Insurer") reasonably acceptable to both Bank and Company that
insures the ATM Cash against the losses described below. The
coverage limits provided under the policy shall be at least
equal to the amount of ATM Cash under the armored carrier's
control at any time, including all ATMs serviced by that
armored carrier. The single occurrence deductible will be no
less than $2,500.00, unless approved by
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both Bank and Company. The policy will include Bank as a loss
payee and, if possible, will include Bank as an additional
named insured. The policy will provide coverage for the below
described events and any concomitant loss of ATM Cash: (i)
kidnapping or robbery of the armored carrier's employees; (ii)
the negligence, carelessness, willful misconduct and/or
dishonesty of the armored carrier's officers, employees and
agents; (iii) losses occurring due to damages caused to an ATM
by the carelessness, neglect or willful misconduct of armored
carrier's employees; (iv) any burglary or robbery of an ATM
that occurs while the armored carrier's personal are present
at the ATM; and (v) any casualty, regardless of fault or
negligence of the armored carrier or its officers and
employees, involving any of the Carrier's vehicles or
facilities caused by or resulting from any vehicular incident,
fire, flood, hurricane, earthquake or other natural calamity.
A certificate of the above insurance (the "Certificate") must
be provided to both Bank and Company before the armored
carrier will have access to any ATM Cash. The Certificate will
also provide that any such policy may not be terminated or
materially modified without the AC Insurer given thirty (30)
days prior written notice to both the Bank and Company.
12. RISK OF LOSS. To the extent not covered by one of the
insurance policies identified in Section 11, Company assumes
all risk of uninsured loss and agrees to reimburse Bank
promptly for any theft, damage, loss, destruction, and/or
incorrect dispensing of ATM Cash once it leaves Bank (or a
third party such as the Federal Reserve) until properly
withdrawn by a cardholder or returned to Bank (or a third
party upon Bank's instructions, such as the Federal Reserve).
Examples of such loss include, but are not limited to: (a) any
loss by armored carriers, maintenance personnel or ATM Site
owners or operators; (b) any loss or damage to ATM Cash
resulting from acts of God, natural disasters, fires, fire
suppression systems, war or civil unrest, burglary, or the
tortuous or negligent actions or omissions of third parties;
(c) any loss of ATM Cash caused by any mechanical malfunction
of ATMs; (d) the disbursement or theft of ATM Cash by persons
with counterfeit, lost or stolen cards; (e) any failure or
inability of Company or any third party processor to process
ATM transactions in a timely and correct manner; (f) any
failure or refusal of any card issuer to settle for ATM Cash
withdrawal transactions; and (g) any failure or inability of
any third party (e.g., an automated clearinghouse or network
sponsoring Bank) to settle ATM Cash transactions or make
payment to Bank for any reason.
Anything in the preceding paragraph to the contrary
notwithstanding, if the ATM Cash Insurer (i) defaults on its
obligation to cover any loss that would come within the scope
of the insurance coverage to be placed by Bank pursuant to
Section 11.1; or (ii) cancels the Bank's policy and Bank or
ATM Cash Insurer fails to give Company thirty (30) days
advance notice of such cancellation, except for losses caused
by the acts on omissions of Company's officers, employees or
agents, Company's obligation to reimburse Bank shall be
limited to Two Thousand Five Hundred Dollars ($2,500.00) per
occurrence. Furthermore, with respect to any loss that would
have been a covered loss, but for deductible or self-insured
policy retention under any insurance policy issued pursuant to
Section 11.1, Company's sole obligation to Bank shall be
limited to $2,500.00.
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Upon initial discovery, Company shall provide Bank with prompt
telephonic notice (followed by prompt written notice)
regarding: (a) any loss, damage, theft or destruction of ATM
Cash; (b) any anticipated delay in the processing of ATM Cash
transactions; and (c) any failure or delay in the settlement
of ATM Cash transactions.
13. INDEMNIFICATION. Company agrees to indemnify, defend and hold
Bank and/or any third party cash provider and their officers,
directors, and employees harmless from and against every loss,
damage, claim, cost, proceeding or action, including any
attorney's fees and costs incurred by Bank and/or any third
party cash provider, related directly or indirectly to: (a)
any claim by third parties (e.g., cardholders, processors,
card issuers, card systems, ATM Site owners and armored
carriers) that Company breached any agreement with them; (c)
any claims of error by cardholders; (d) any damage or injury
to cardholders, maintenance or armored carrier personnel, or
ATM Site personnel in connection with an ATM or an ATM
transaction (e.g., assault, theft, incorrect dispensing of ATM
Cash, or incorrect processing of ATM transactions); (e) the
design, accessibility and/or placement of ATMs; or (f)
Company's breach of this Agreement.
14. REPORTS. Bank will provide Company with the periodic
settlement, reconcilement and other reports.
15. FEES. Company shall pay Bank fees based on current pricing as
shown on EXHIBIT "E." Payment shall be within five (5)
business days following receipt of invoice. Fees are subject
to change upon written agreement by both parties. With respect
to all payments or reimbursements called for under this
Agreement, including expenses and costs for which Bank is
entitled to reimbursement under Section 13, Bank may, at its
option, offset any account standing in the name of the
Company, or offset any funds held for the benefit of the
Company at Bank.
16. TERM AND TERMINATION.
16.1. TERM. The term of this Agreement shall be for a period
of eighteen (18) calendar months, commencing on the Effective
Date (defined below), which will automatically renew for
additional one (1) year periods unless either party gives
notice to the other party of intent to cancel this Agreement
at least ninety (90) days prior to expiration of the term.
16.2. TERMINATION BY NOTICE. Following the anniversary date of
this Agreement, either party may terminate this Agreement at
any time, upon ninety (90) days' prior written notice to the
other party.
16.3. TERMINATION FOR BREACH. Either party may terminate this
Agreement in its entirety or as to any ATM Site(s) effective
thirty (30) days after giving notice upon the occurrence of a
material breach of the other party's obligations hereunder, so
long as the breach is not due to the actions of the
terminating party, and provided that the breach is not
remedied within twenty (20) days (or such other time which is
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specified for a particular breach elsewhere in this Agreement)
after notice is given. In the event the same breach occurs
twice within a three (3) consecutive calendar month period,
the breaching party will not be entitled to remedy the breach
to avoid termination.
16.4. TERMINATION BY BANK WITHOUT NOTICE. Notwithstanding
Section 16.3, Bank may terminate this Agreement without
advance notice in the event: (a) Company breaches this
Agreement by failing to protect Bank's absolute, unconditional
ownership in, or access to, ATM Cash; (b) Bank is not
permitted to treat ATM Cash as vault cash for reserve
purposes; (c) a third party which handles or facilitates ATM
Cash transactions (e.g., EDS or any other processor) is in
breach of its agreement with Company and the breach may
adversely affect Bank's rights in, or access to, ATM Cash or
the settlement of ATM Cash transactions; (d) Company fails to
maintain the insurance required by this Agreement; (e) normal
settlement of ATM Cash transactions is delayed by more than
two (2) days for any reason; (f) Company is no longer
sponsored or permitted to participate in any national or
regional network; or (g) the arrangements involving ATM Cash
transactions do not comply with a national or regional
network's Operating Rules.
16.5. TERMINATION BY BANK WITH NOTICE. The Bank will give
ninety (90) days' notice if it determines, in its sole
discretion, that it no longer wishes to provide the ATM Cash
or the services outlined herein to Company.
16.6. TERMINATION FOR REGULATORY CIRCUMSTANCES. Bank may
terminate this Agreement in the event that the Office of the
Comptroller of the Currency or other federal, state or local
regulatory agency, which has jurisdiction over Bank's
operations and activities, requires discontinuance of this
Agreement. Bank shall give Company ninety (90) days' prior
written notice of termination or, if less, the maximum time
permitted by the regulatory agency.
16.7. TERMINATION FOR OTHER CONDITIONS. Either party may
terminate this Agreement immediately upon giving notice in the
event the other party: (a) makes a general assignment for the
benefit of creditors, (b) applies for the appointment of a
trustee, liquidator or receiver for its business or property,
or one is assigned involuntarily, (c) is subject to a
proceeding for bankruptcy, receivership, insolvency,
dissolution or liquidation, (d) is adjudicated insolvent or
bankrupt, or (e) is unable to perform its obligations under
this Agreement as a direct result of a force majeure cause for
a period of seven (7) or more consecutive days.
16.8. TRANSITION. Upon termination, Bank shall have the right
to immediately remove all ATM Cash from the ATM Sites. Company
shall assist Bank in returning all ATM Cash.
16.9. CONTINUING OBLIGATIONS. The termination of this
Agreement shall not affect Company's obligations to Bank for
actions and omissions occurring prior to the date of
termination or for fees, costs or reimbursements incurred
prior to such termination. In addition, the terms and
conditions set forth in this Agreement, which
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by their nature would continue beyond termination of this
Agreement, shall survive the termination of this Agreement.
Without limiting the generality of the foregoing, Company
shall continue to indemnify, defend and hold Bank harmless,
and to assume responsibility for risk of loss, in connection
with ATM Cash and ATM transactions occurring on or prior to
the date of termination and until Bank has completed the
removal of its ATM Cash from all ATMs. If this Agreement is
terminated (or earlier upon Bank's request), Company will
cooperate with Bank in arranging for ATM Cash to be promptly
returned to Bank.
17. DISPUTES; ARBITRATION.
17.1. DISPUTE RESOLUTION. In the event a controversy, claim or
dispute arising out of or relating to this Agreement or the
transactions contemplated hereby ("Dispute") arises between
Bank (and/or any third party vault cash provider) and Company
relating to this Agreement and the performance or scope of
obligations hereunder, either party may request by notice that
the dispute be escalated to respective senior management
personnel for consideration. Upon request, senior management
personnel will conference by telephone or (if convenient) in
person within a reasonable period of time not to exceed
fifteen (15) days to determine if the Dispute can be resolved.
17.2. BINDING ARBITRATION. Any Dispute not resolved pursuant
to the provisions of Section 17.l, shall be referred to
arbitration for determination. The arbitration shall be
conducted in accordance with such rules as may be agreed upon
by the parties, or failing agreement within twenty (20) days
after arbitration is demanded, in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association ("AAA"), subject to any modifications contained in
this Agreement. The Dispute shall be determined by one (1)
arbitrator, except that if the Dispute involves an amount in
excess of $1,000,000.00 (exclusive of interest and costs),
three (3) arbitrators shall be appointed to decide by majority
vote unless the parties agree otherwise. The arbitrator(s)
shall be selected from panels maintained by the AAA unless the
parties agree otherwise. The determination of the arbitrator
shall be binding upon the parties and judgment upon the award
rendered may be entered in any court having jurisdiction
thereof. The arbitrator(s) shall base the award on the
applicable law judicial precedent, which would apply if the
Dispute were decided by a United States District Court Judge
sitting in California. The award shall be in writing and
include the findings of fact and conclusions of law upon which
it is based unless the parties agree otherwise.
Notwithstanding the foregoing, no party shall be prevented
from seeking injunctive relief from a court of competent
jurisdiction in order to enforce this Agreement. Depositions
may be taken and other discovery may be obtained during such
arbitration proceedings to the same extent authorized in civil
judicial proceedings. The arbitrator(s) will resolve any
discovery disputes. The arbitrator(s) and counsel of record
will have the power of subpoena process as provided by law.
Arbitration fees payable to the arbitrator in advance of an
award shall be paid equally by the parties to the dispute. The
arbitrator(s) shall award recovery of all costs and fees
(including reasonable attorneys' fees, administrative fees,
arbitrator fees, costs and expenses) to the prevailing party.
The
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arbitrator(s) may also grant provisional or ancillary remedies
including, without limitation, injunctive relief, attachment
or the appointment of a receiver, either during the pendency
of the arbitration proceeding or as part of the arbitration
award. The arbitration shall be governed by the substantive
laws of the State of California without regard to conflicts of
law rules. The arbitration proceedings shall be conducted in
Palm Desert, California, unless the parties agree otherwise.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to its subject
matter and supersedes all previous agreements between them
with respect to its subject matter.
19. GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with California law.
20. SUCCESSORS. This Agreement shall be binding upon the parties
and their successors and assigns. Company shall not assign its
rights or delegate its obligations under this Agreement to
others without Bank's prior written consent, which consent
will not be unreasonably withheld. A change-in-control event
shall not be deemed to be an assignment requiring notice
hereunder.
21. AMENDMENTS. This Agreement may only be amended in writing
signed by both parties.
22. ATTORNEYS' FEES. In the event either party sues or engages in
arbitration to enforce this Agreement; the prevailing party
shall be entitled to recover its reasonable costs and
attorneys' fees.
23. WAIVERS. Bank may waive its rights under this Agreement
without losing them. A waiver of any right by Bank shall not
be deemed to be a waiver of other rights or of the same right
at another time.
24. THIRD PARTY BENEFICIARIES. There are no third party
beneficiaries to this Agreement, except third party vault cash
providers, who it is intended may benefit from the terms and
provisions hereof; provided, however, such third party
provider shall have no liability to Company whatsoever.
25. NOTICES. All notices in connection with this Agreement shall
be mailed or delivered to the other party at the address set
forth below or at such other address as the party may
designate in writing.
To Bank: Palm Desert National Bank
00-000 Xx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Email Address: xxxxxxxx@xxxx.xxx
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
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To Company: Cardtronics, LP
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
26. INDEPENDENT CONTRACTOR. The relationship of Bank and Company
is that of an independent contractor. Nothing in this
Agreement shall be construed as constituting a partnership,
joint venture or agency between the parties. Neither party
shall make any representation or take any action, which is
inconsistent with this Section.
27. COMPANY INFORMATION; FINANCIAL STATEMENTS. Company shall
provide Bank with a completed Client Information Sheet in the
form attached hereto as EXHIBIT "F" to this Agreement. Company
shall provide Bank, initially, at least annually thereafter,
and upon Bank's request, with current audited financial
statements prepared by a qualified independent certified
public accountant. The financial statements shall contain such
information as Bank may reasonably request in order to confirm
Company's financial responsibility and its ability to perform
in accordance with this Agreement.
28. EFFECTIVE DATE. The Effective Date of this Agreement is
November 1, 2002.
CARDTRONICS, LP
By: /s/ Xxxxx X. Xxxxxxx Date: 11/12/02
--------------------------
Xxxxx X. Xxxxxxx
Its: President/Chief Executive Officer
PALM DESERT NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxxx Date: 11/26/02
-----------------------------
Xxxxxx X. Xxxxxxxxx
Its: President/CEO, Electronic Banking Division
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EXHIBIT "A"
ATM Site Locations.
This Agreement applies to all ATM Sites currently in Palm Desert National Bank's
Trakker software system, a listing of which is attached hereto. New ATM Sites
may be added or deleted by submitting New Terminal Set Up Form as directed by
Palm Desert National Bank.
A-1
EXHIBIT A
LIST OF ATM LOCATIONS FOR ATM CASH AGREEMENT
BY AND BETWEEN PDNB AND CARDTRONICS, LP *
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
A-2
EXHIBIT "B"
Intentionally left blank
B-1
EXHIBIT "C"
At Company's option, either of the two following procedures may be used
to pay the cost of armored carrier services and maintenance as specified in
Sections 3 and 4 of the ACM Cash Agreement:
1. Carrier, Company and Bank enter into a tri-party agreement:
A. Carrier will xxxx the Company directly for their service.
B. Company will pay Xxxxxxx xxxx directly.
2. If Carrier and Bank enter into an agreement:
A. Carrier and Bank will enter into an agreement with the
approval of Company.
B. Carrier will forward a copy of each invoice to Bank and
original to Company.
C. Company will approve and pay invoice.
D. Company is responsible for all dispute resolution and will be
resolve issues within thirty (30) days. Company will maintain
sufficient funds at Bank to settle unresolved disputes.
C-1
EXHIBIT "D"
SETTLEMENT PROCEDURES FOR ATM CASH PROVIDED TO ATMS FOR COMPANY:
1. All ATM Cash withdrawn and any convenience fees or surcharges assessed
at the ATM against the customer (the "ATM Revenue"), will be credited
directly through processor to account(s) as directed by Palm Desert
National Bank.
2. The total ATM Cash dispensed will be deposited back to the Bank.
All Surcharge Income must be settled with Bank.
BANK MUST BE SOLELY RESPONSIBLE FOR APPROVING THE ISSUING AND CHANGING ATM CASH
SETTLEMENT ACCOUNT INFORMATION WITH PROCESSOR. IF PROCESSOR IS NOT CAPABLE OF
HAVING BANK ENTER INFORMATION, A TRI-PARTY AGREEMENT BETWEEN COMPANY, BANK AND
PROCESSOR MUST BE IN PLACE IN WHICH BANK IS RECOGNIZED AS THE ONLY PARTY ALLOWED
TO APPROVE CHANGES TO THE SETTLEMENT ACCOUNT INFORMATION.
D-1
EXHIBIT "E"
All other approved fees and expenses shall be billed to Company along
with the monthly Cash Availability Fee. Such fees shall be automatically debited
out of Company's account on the 15th business day of the following month.
CASH SERVICE:
COMPANY REQUIREMENTS
- Full analysis and approval of two (2) years corporate
financial statements and two (2) years tax returns by PDNB. A
D&B will be run on the company or corporation, along with a
credit report on the principals.
- Articles of Incorporation and other pertinent corporate
documentation.
- All funds, including Surcharge Income must settle with PDNB.
- The Processor must be approved and instructed by PDNB only to
direct account information/transactions for crediting ATM Cash
and Surcharge.
- Either a copy of Company's ATMs Site agreement(s) to be used
with merchants or ATM owners or a letter from the
merchant/owner disavowing any ownership, claim or interest in
the ATM Cash as discussed in Section 6.
- Insurance certificate adding Bank as additional insured as
specified in Section 11.
SET-UP FEES - ONE TIME FEE
- New ATM - $ * Fee per ATM; Conversion ATM(s) - $ * per ATM
MONTHLY FEES
Cost of ATM Cash is calculated by multiplying the daily outstanding EFT
cash balance in the ATM by the applicable cost of cash rate, multiplying by one
and then dividing by 360. (Example: $10,000.00 x 10.50% x 1/360). The total
daily calculations are added together for the number of days in the month to
arrive at the total monthly cost of ATM Cash.
Prime rate will be the prime rate in effect the first day of each
month.
XXXXX 0 - *
LEVEL 2 - *
LEVEL 3 - *
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
E-1
- Insurance: PDNB maintains insurance on outstanding cash in
each ATM. The cost is calculated on the monthly average
outstanding balance as described below:, with a per occurrence
deductible of $ * :
AVERAGE OUTSTANDING BALANCE MONTHLY COST ANNUAL COST
--------------------------- ------------ -----------
$1.00 -- 9,999.00 * *
$10,000.00 -- $19,999.00 * *
$20,000.00 -- $29,999.00 * *
$30,000.00 -- $39,999.00 * *
$40,000.00 -- $49,999.00 * *
$50,000.00 -- $59,999.00 * *
$60,000.00 -- $69,999.00 * *
$70,000.00 -- $79,999.00 * *
$80,000.00 -- $89,999.00 * *
$90,000.00 -- $99,999.00 * *
$100,000.00 and up * *
PER SERVICE FEES
- Cash Delivery Fee - $ * per Cash Delivery/Visit for PDNB
Cash Balancing Operations.
- Cash Management Fee - $ * per terminal per month as
requested by customer.
REGULATION E AND PROCESSOR CLAIMS PROCESSING
PLEASE INDICATE CLAIMS PROCESSING METHOD BY CHECKING THE APPROPRIATE BOX BELOW.
PLEASE CHOOSE ONE METHOD FOR PROCESSING REG E CLAIMS AND ONE METHOD FOR
PROCESSING PROCESSOR CLAIMS. CUSTOMER ACCEPTS THE PER SERVICE FEE ASSOCIATED
WITH EACH METHOD OF CLAIMS PROCESSING.
PROCEDURE FOR PROCESSING A REG E CLAIM:
[ ] Customer will research claims and process adjustments. Customer will
forward outcome to PDNB. Armored carrier will send journal records
directly to customer. Customer will pay processor and network fees only
- no fee to be charged to customer by Bank for this method of claims
processing.
Or
[ ] $ * fee per claim - Customer will research claims and forward any
required information to Bank for processing of adjustment. Armored
carrier will send journal records directly to Customer. Customer will
pay processor and network fees.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
E-2
[ ] $ * fee per claim - Bank will research claim and forward necessary
information to customer for processing. Armored carrier will send
journal records to Bank. Customer will pay processor and network fees.
Or
[ ] $ * fee per claim - Bank will research claims and process
adjustments on behalf of customer. Armored carrier will send journal
records to Bank. Bank will forward outcome to customer. Customer will
pay processor and network fees.
PROCEDURE FOR PROCESSOR CLAIMS:
[ ] $ * - Customer will research own processor claim and submit
adjustments to their processor for their own claims. PDNB will provide
transaction credit report, copy of journal records (MAILED AT
CUSTOMER'S EXPENSE) and notification letter to customer.
Or
[ ] $ * fee per claim - Customer will research their own claims to
process adjustments. PDNB will provide transaction credit report, and
notification letter to customer.
Or
[ ] $ * fee per claim - Bank will research processor claims and customer
will submit adjustments to their processor. PDNB will provide
transaction credit report, copy of journal records (mailed at
customer's expense) and letter to customer.
Or
[ ] $ * fee per claim - Bank will research processor claims and
submit adjustments to the processor.
NOTE: If PDNB does not receive journal records from armored carrier,
PDNB will send claim letter and transaction credit reports to customer
and xxxx the customer for the shortage.
- All other fees as agreed to in advance that are the result of
this service.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
E-3
EXHIBIT "F"
Client Information Sheet
Intentionally omitted
F-1
