Cash Management Agreement
This Agreement ("Agreement") is made and entered into this 6th day of
May, 1999 between American ATM Corp ("ATM Owner"), a Florida corporation
(corporation/partnership/sole partnership) whose principal place of business is
located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxx Xxxxx, XX 00000 and Xxxx Systems,
Inc., a Georgia corporation, with principal offices at 000 Xxxxxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, XX 00000 ("Operator").
WHEREAS, ATM Owner is the owner of the Automated Teller Machine
equipment ("ATM's); and
WHEREAS, ATM Owner desires Operator to provide cash management services
that include cash ("Rent Cash") and other related services to one or more ATM's
set forth in Exhibit A;
NOW, THEREFORE, in consideration of the premises, the premises set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
Definitions
The following term shall have the following meanings when used herein:
1. "Regulation E" shall mean Regulation E governing Electronic
Funds Transfers, as promulgated by the Board of Governors of
the Federal Reserve System and as found at 12 DGR Section
205.1 et seq,
2. "Funding Bank" is the bank responsible for providing Rent Cash
for the ATM's owned by ATM Owner and whose cash requirements
are to be managed by Operator.
3. "Correspondent Bank Account" shall mean the account(s)
maintained solely by Funding Bank through which Rent Cash is
disbursed to bonded cash transfer service organizations
("Armored Services") in accordance with written instructions
from Operator under this Agreement and into which returned
cash is deposited by the contract Armored Services.
4. "Prime Rate" shall mean the current prime rate as reported in
the Wall Street Journal as set forth on the first business day
of the month following the Funding Month, as hereinafter
defined.
5. "Cash Management Expenses", as defined further in Section 4
below, shall mean any fees earned by Operator in accordance
with this Agreement and expenses paid by Operator on behalf of
ATM Owner to third parties.
SECTION 2
Duties of the ATM Owner
2.1 Compliance with Applicable Rules and Regulations. ATM Owner shall at
all times abide by, operate in accordance with and comply with all
applicable network rules and regulations and all applicable banking
laws and regulation, including Regulation E, as well as rules and
stipulations of this Agreement and Funding Bank.
2.2 Liability of ATM Owner to Funding Bank. ATM Owner acknowledges and
agrees that it is reasonable for any and all obligations which are
imposed upon Funding Bank relating to the funding of ATM's whether by
Network Armored Service or others under applicable laws and
regulations.
2.3 Relocation of ATM's. In the event that ATM Owner determines in its sole
discretion that one or more ATM's are not generating adequate volume to
support continued operation in a location, ATM Owner may, upon prior
written notice to Operator and payment of a processing termination fee
set forth in Exhibit B, relocate ATM's to another location of its
choice. Relocation of ATM's shall e treated as a new installation in
accordance with Exhibit B.
2.4 Insure Hardware. ATM Owner will provide insurance on ATM hardware.
2.5 Escrow Account. ATM Owner agrees to establish and fund a non-interest
bearing Escrow Account which at all times hereafter shall have a
minimum monthly balance equal to the greater of $10,000 or one (1)
month's projected Cash Management Expenses as described in Exhibit B
and Addendums attached hereto ("Escrow Account"). In the event ATM
Owner fails to pay invoices as required under this Agreement. Operator
may terminate this Agreement and deduct outstanding invoices incurred
by Operator on behalf of ATM Owner. Operator has the right to review
the Cash Management Expenses on a quarterly basis and may require ATM
Owner to increase or decrease the amount of the Escrow Account,
depending upon Cash Management Expenses incurred by Operator. If at any
time the Escrow Account fails to __________ less than fifty percent
(50%) of the amount specified in Exhibit B. ATM Owner shall promptly
restore the amount of the Escrow Account to the full amount. If AMT
Owner fails to restore such amount within fifteen (15) days of receipt
of notice thereof from Operator, Operator may immediately terminate
this Agreement. Within sixty (60) days of any termination of this
Agreement , Operator will reimburse ATM Owner the amount that remains
in the Escrow Account less any outstanding invoices and expenses
incurred by Operator on behalf of ATM Owner.
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SECTION 3
Duties of Operator
3.1 Cash Management of ATM's. Operator will provide the following services
to ATM owner either directly or indirectly through third party
agreement(s).
(a) Operator will contract with a Funding Bank to provide Rent
Cash
(b) Operator or Funding Bank will provide insurance on Rent
Cash.Such insurance shall include all risk of loss or damage
to the Rent Cash, excluding that caused by ATM Owner or the
Armored Services provider contracted by Operator. The
deductible shall be as set forth in Exhibit B.
(c) Operator or Funding Bank will establish Correspondent Bank
Accounts at locations within the proximity to ATM's owned by
ATM Owner.
(d) Operator will establish and maintain contracts for Armored
Services and first line maintenance for ATM Owner.
(e) Operator will order Rent Cash, schedule replenishment, contact
Armored Services, first line or second line companies for
unscheduled visits and return surplus cash as needed.
3.2 Processing of ATM Transactions. Under a separate Processing Agreement,
Operator will process transactions for all of the ATM's covered for
services hereunder.
3.3 Establishment of Services. Upon receipt of all _______ information
provided in Exhibit A from ATM Owner, Operator has up to forty-five
(45) days to establish contracts with third party vendors and bring the
ATM into operation with Rent Cash.
3.4 Handling of Physical Cash. Excluding the maintenance services provided
by ATM Owner, Operator shall at all times have sole and complete
control of and over the Rent Cash and may determine who and under what
circumstances other persons or entities may have access to the Rent
Cash.
SECTION 4
Expenses
Cash Management Expenses earned directly by Operator or paid by
Operator on behalf of ATM Owner include but are not limited to:
4.1 Armored Services. ATM Owner shall be responsible for and reimburse
Operator for all expenses incurred by Operator for Armored Services
provided at ATM's. Included in these expenses are charges for emergency
cash replenishment.
4.2 First Line Maintenance. ATM Owner shall be responsible for and
reimburse Operator for all expenses incurred by Operator relating to
the contract with the provider of first line maintenance, which
services include, but shall not be limited to clearing paper and bills
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jams , supply replenishment and services required to return ATM's to
operational status.
4.3 Cash Management Fees. ATM Owner agrees to pay Operator the monthly
per-ATM fees assessed by Operator in accordance with Exhibit B. The
Cash Management Fee includes overhead to Operator for its activities
hereunder, including managing, overseeing and being responsible for any
subcontracted services and service providers.
4.4 Funding Fee. ATM Owner shall be responsible for and reimburse Operator
for all expenses incurred by Operator for Rent Cash ("Funding Fees"),
which shall be calculated as follows: the average daily balance of all
Rent Cash provided by Funding Bank to ATM's during the month shall be
multiplied by the number of days in the Funding Month, which result is
then divided by 365. The Funding Fee will begin accruing the day the
Funding Bank initiates a wire to replenish ATM's and will end on (and
include) the day the Funding Bank receives Rent Cash removed from
ATM's.
4.5 Correspondent Bank Account(s). ATM Owner shall be responsible for and
reimburse Operator for all expenses incurred by Operator related to the
maintenance of all Correspondent Bank Account(s). ATM Owner
acknowledges and agrees that these fees are not fixed and may vary from
month to month depending on the activity on the account.
4.6 Rent Cash Insurance. ATM Owner shall be responsible for and reimburse
Operator for all expenses incurred by Operator for all insurance
premiums paid by Operator on behalf of ATM Owner. In the event of a
loss or claim, ATM Owner shall be responsible for any deductibles on
the ATM funding related to the claim. See Exhibit B for deductible
amount.
4.7 Payment of Expenses. ATM Owner authorizes Operator to set off
accumulated monthly Cash Management Expenses against Residuals due ATM
Owner from Network Interchange revenues collected by Operator per the
ATM Processing Agreement. Any shortage of revenue to cover expenses
will result in Operator submitting an invoice to ATM Owner. Such
invoice shall be payable net ten (10) days from receipt of invoice. Any
revenue surplus will be mailed in the form of a check to ATM Owner
within fifteen (15) business days. If at any time ATM Owner fails to
pay for Cash Management Expenses detailed in invoices produced by
Operator, or if Agreement is terminated for cause, Operator reserves
the right to deduct invoice amounts from Escrow Account.
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SECTION 5
Indemnification
5.1 Indemnification by ATM Owner. ATM Owner agrees to indemnify, defend and
hold harmless Operator, its officers, directors, employees, agents,
affiliates and assigns from and against any and all losses, cost,
claims, damages, fines, penalties, expenses (including attorney's fees)
or liabilities that may occur as a result of (i) any failure of ATM
Owner, or of any entity owner or controlled by ATM Owner or with whom
ATM Owner contracts to fulfil any of ATM Owner's duties or obligations
under this Agreement or under the Bylaws and Operating Regulations;
(ii) ATM Owner's compliance with the terms of or its duties under this
Agreement, including contracting with third; (iii) any failure to
comply with applicable laws, rules or regulations; or (iv) otherwise in
respect of or resulting from Operator's funding of ATM's Owner's ATM's.
5.2 Indemnification by Operation. Operator agrees to indemnify and hold
harmless ATM Owner and its officers, directors, employees, agents,
affiliates and permitted assigns from and against any al all losses,
costs, claims, damages, fines, penalties, expenses (including
attorney's fees) or liabilities they may incur arising out of any
breach by Operator of its obligations under this Agreement.
SECTION 6
Term and Termination
6.1 Term. Except as otherwise provided herein, the term of this Agreement
shall be five (5) years from date of execution by both parties
("Term"), which Term shall automatically renew for successive periods
of five (5) years unless terminated in writing by either party at least
sixty (60) days prior to the expiration of the then-current five
(5)-year term.
6.2 Right to Terminate Upon Breach. Either Party to this Agreement may
terminate this Agreement upon a breach of any of its terms, which
breach may include, but shall not be limited to any of the following:
(a) The failure of either Party to this Agreement to cure a breach
within thirty (30) days of receipt from the non-breaching
party of written notice thereof;
(b) If either Party (i) becomes insolvent; (ii) fails to pay its
debts or perform its obligations in the ordinary course of
business as they mature; or (ii) becomes this subject of any
voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership, attachment or
composition for the benefit of creditors, and the Party
terminating this Agreement provides written notice thereof to
such other Party.
(c) ATM Owner or its representative accesses the vault section of
an ATM for services or maintenance in the absent of a
representative of the Armored Service providing services to
the ATM.
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Upon occurrence of a breach, all Rented Cash will be removed from the
ATM's immediately.
6.3 Right to Terminate by Funding Bank. Notwithstanding anything to the
contrary contained herein, Funding Bank shall have the right to
terminate the agreement with Operator, upon which occurrence Operator
may terminate this Agreement with ATM Owner, in the event (a) any
federal or state regulatory agency with authority over Funding Bank
requires or requests, in writing, that Funding Bank terminate the
Agreement; (b) the Board of Directors of Funding Bank, its parent
holding company or any federal or state regulatory agency with
authority over Funding Bank, determines that Funding Bank's continued
performance under the terms of this Agreement would constitute an
unsafe or unsound banking practice, and so certifies to ATM Owner in
writing, or (c) the President of Funding Bank determines in his sole
discretion, that Funding Bank could be exposed to potential financial
risks or (d) the armored car service violates or does not comply with
the ARMORED CAR SERVICE ADDENDUM. Termination shall become effective
under Subsection (a) three (3) months after written notice unless, in
the event of a "required" termination, the regulatory agency requiring
or requesting termination specifies a termination date less than three
(3) months after written notice, in which event termination shall
become effective as required or requested by the agency. Termination
shall become effective under Subsections (b) and (c) thirty (30) days
after written notice to ATM Owner.
6.4 Right to Terminate for Non-Payment. If ATM Owner fails to pay any
unpaid fees or other amounts due Operator after fifteen (15) days'
written demand, Operator may terminate this Agreement without further
notice.
6.5 Effect of Termination. Notwithstanding anything to the contrary
contained herein, in the event of any termination of this Agreement.,
the obligations of ATM Owner under Section 4 and 5 of this Agreement
for fees, expenses or other obligations incurred prior to the effective
date of termination, shall survive termination of this Agreement. ATM
Owner shall also be responsible for all post-termination fees resulting
from retrieval of Rented Cash from ATM's.
SECTION 7
General Provisions
7.1 Notices. Notices to either party shall be considered delivered when
mailed registered or certified mail, return receipt requested, to the
address below; or to such other address specified by each of the
parties from time to time:
If to Xxxx Systems:
Xxxx Systems, Inc.
000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
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Attn: Xxxxx Xxxxxxxxx
If to ATM Owner:
American ATM Corp.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
7.2 Assignment. ATM Owner agrees that an assignment of this Agreement may
not occur without the prior notification and written consent of
Operator, such consent not to be reasonably withheld.
7.3 Entire Agreement. This Agreement together with any other documents
referred to herein, constitutes the entire agreement between the
parties relating to the subject matter hereof, and may not be changed
orally but only by a written instrument signed by an authorized officer
of each party.
7.4 Modification. This Agreement may not be modified or amended except by
an instrument in writing executed by each of the parties hereto.
7.5 Waivers. One or more waivers of any covenant by Merchant of Operator
hereunder shall not be construed as a waiver of a subsequent breach of
the same or any other covenant or condition herein. The waiver or
exercises of any legal right hereunder shall not be construed as waiver
of any other action or right Merchant or Operator may have pursuant to
the terms of this Agreement or otherwise.
7.6 Headings. The descriptive section headings in this Agreement are for
purposes of reference only and shall not limit or affect ant of the
terms herein.
7.7 Force Malcum. Notwithstanding any other provision of this Agreement,
the requirement that a party perform any act or fulfill any requirement
of this Agreement by a time certain hereunder may be fulfilled at a
subsequent time if the delay arises out of any of the following causes
beyond the control and without the fault or negligence of the party
(the "Relying Party") otherwise chargeable with the delay, an act of
civil or military authority, fire, lock-out or other labor dispute,
flood, war, riot, theft, earthquake, natural disaster, default of
common carrier, or other cause beyond the control of the Relying Party,
provided however that the Relying Party shall notify the other party
promptly of the delay and its cause.
7.8 Governing Laws Consent for Jurisdiction. This Agreement shall be
governed by, interpreted and construed in all respects in accordance
with and under the laws of the State of Georgia. The Parties hereto
irrevocably consent to the jurisdiction of the state and federal courts
located in Atlanta, Georgia, and agree that any action, suit or
proceeding (except actions for injunctive relief, which actions may be
brought in any applicable jurisdiction) by or between the Parties
hereto shall be brought in any court in Atlanta, Georgeia, waiving any
objection which the party may now or hereafter have to
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the choice of forum whether such objection is based upon lack of
personal jurisdiction, improper forum, forum non conveniens or any
other ground.
7.9 Each of the Parties hereto hereby irrevocably consents to the service
of process outside of the territorial jurisdiction of said counts by
mailing copies hereof by registered or certified mail, postage prepaid
to such Party's last known address with the same effect as if the Party
were a resident, of the State of Georgia and had been lawfully served
in such State. Nothing in this Agreement shall affect the right to
service of process in any other manner permitted by law. Each of the
Parties hereto further agrees that the final judgment against it in any
such action or proceeding shall be conclusive and may be enforced in
any other jurisdiction within or outside the State of Georgia by suit
on the judgment, a certified or examplified copy of which constituting
conclusive evidence of he fact and the amount of such judgment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
XXXX SYSTEMS, INC. AMERICAN ATM CORP.
Operator ATM Owner
By: /s/ [illegible] By: /s/ Xxxxxx Xxxxxxx
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Name: XX Xxxxxxxxx Name: Xxxxxx Xxxxxxx
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Title: CFO Title: V.P. ATM Operations
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Date: 5-7-99 Date: 5/6/99
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