CURRENCY-IN-TRANSIT Control Agreement

Exhibit 10.65

THIS CURRENCY-IN-TRANSIT CONTROL AGREEMENT (as amended, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of September 1, 2023 (the “Effective Date”), by and among Athena Bitcoin Inc, a Nevada corporation (the “Grantor”), KGPLA Holdings LLC, a Delaware limited liability company (the “Secured Party”) and Brinks U.S., a Division of Brink’s, Incorporated (the “Custodian”), is delivered pursuant to Section 4(k) of that certain Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), dated of May 15, 2023 by and between Grantor, the other parties listed therein, and the Secured Party. This Agreement is entered into by the parties hereto for the purpose of perfecting the security interests of the Secured Party granted by the Grantor in the Currency-in-Transit described below. All references herein to the “UCC” means the Uniform Commercial Code as in effect from time to time in the State of Delaware. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Security Agreement.

1. Definitions. For purposes of this Agreement, the following terms not otherwise defined herein have the following meanings:

(a) “Account Expenses” has the meaning assigned to such term in Section 15.

(b) “Currency-in-Transit” has the meaning assigned to such term in Section 2(a).

2. Representations; Covenants. The Custodian hereby confirms and agrees that:

(a) The Custodian provides to the Grantor certain services (the “Custodial Services”) in connection with the custody, safekeeping, transport, and deposit of U.S. paper currency in the ordinary course of the Custodian’s business (such U.S. paper currency, the “Currency-in-Transit”) pursuant to the Kiosk Services Agreement attached hereto as Schedule 1. The Grantor is the Custodian’s customer with respect to the Currency-in-Transit.

(b) This Agreement is the valid and legally binding obligation of the Depository Bank.

(c) The Custodian has not entered into any currently effective agreement with any person relating to any Currency-in-Transit under which the Custodian may be obligated to comply with instructions originated by a person other than the Grantor or the Secured Party. Until the termination of this Agreement, the Custodian will not enter into any agreement with any person relating to any Currency-in-Transit under which the Custodian may be obligated to comply with instructions originated by a person other than the Grantor or the Secured Party.

3. Control. Subject to all applicable laws, rules, and regulations, including, but not limited to those issued by the Financial Crimes Enforcement Network (“FinCen”), the Custodian shall comply with instructions originated by the Secured Party in accordance with this Agreement with respect to the “Currency-in-Transit” without the further consent of the Grantor or any person acting or purporting to act for the Grantor, including directing disposition of the Currency-in-Transit except to the extent that those instructions conflict with the proviso in Section 4(b). Subject to all applicable laws, rules, and regulations, including, but not limited to those issued by FinCen, the Custodian shall also comply with instructions originated by the Grantor or its authorized representatives directing the disposition of the Currency-in-Transit until such time as the Secured Party delivers a Notice of Sole Control pursuant to Section 9(a) to the Custodian, except to the extent that those instructions conflict with the proviso in Section 4(b). Subject to all applicable laws, rules, and regulations, including, but not limited to those issued by FinCen, the Custodian shall comply with, and is fully entitled to rely upon, any instruction from the Secured Party with respect to the “Currency-in-Transit”, even if such instruction is contrary to any instruction that the Grantor may give or may have given to the Custodian, except that the Custodian is not required to comply with any instruction to the extent that those instructions conflict with the proviso in Section 4(b).

4. Subordination of Lien; Waiver of Set-Off.

(a) The Custodian hereby agrees that any security interest in, lien on, or encumbrance, claim or (except as provided in the proviso to Section 4(b)) right of set-off against, any Currency-in-Transit will be subordinate to the security interest of the Secured Party in the Currency-in-Transit.

(b) The Custodian agrees not to exercise any present or future right of recoupment or set-off against any of the Currency-in-Transit or to assert against any of the Currency-in-Transit any present or future security interest or any other lien or claim (including claim for penalties) that the Custodian may at any time have against or in any of the Currency-in-Transit or any funds therein; provided, however, that the Custodian may set off all amounts due the Custodian in respect of its fees and expenses for the Custodial Services related to the Currency-in-Transit as set forth in that certain underlying services agreement by and between Grantor and Custodian (the “Services Agreement”).

5. Custodian’s Responsibility.

(a) The Custodian will not be liable to the Secured Party for complying with instructions from the Grantor concerning the Currency-in-Transit that are received by the Custodian before the Custodian receives a Notice of Sole Control.

(b) The Custodian will not be liable to the Grantor or the Secured Party for complying with a Notice of Sole Control or with instructions originated by the Secured Party concerning any of the Currency-in-Transit, even if the Grantor notifies the Custodian that the Secured Party is not legally entitled to issue such Notice of Sole Control or instructions, unless the Custodian takes the actions after it is served with an injunction, restraining order, or other legal process enjoining it from doing so, issued by a court of competent jurisdiction, and had a reasonable opportunity to act on the injunction, restraining order or other legal process.

(c) This Agreement does not create any obligation of the Custodian except for those expressly set forth in this Agreement. In particular, the Custodian need not investigate whether the Secured Party is entitled under the Secured Party’s agreements with the Grantor to give instructions concerning any Currency-in-Transit or a Notice of Sole Control. The Custodian may rely on notices and communications it believes to have been given by the appropriate party.

6. Choice of Law; Waiver of Jury Trial.

(a) This Agreement is governed by the laws of the State of Delaware. Regardless of any provision in any other agreement, for purposes of UCC §9-304(b)(1), Florida will be deemed to be the Custodian’s jurisdiction and the Currency-in-Transit is governed by the laws of the State of Florida. The Custodian and the Grantor may not change the law governing any Currency-in-Transit without the Secured Party’s prior written consent.

(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, CLAIM OR PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY TYPE ARISING OUT OF OR DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT.

7. Conflict with Other Agreements. As of the Effective Date, there are no other agreements entered into between the Custodian and the Grantor with respect to the Currency-in-Transit, other than the Services Agreement. The Custodian and the Grantor will not enter into any other agreement with respect to the Currency-in-Transit while this Agreement is in effect. The Custodian and the Grantor have not and will not enter into any other agreement with respect to control of the Currency-in-Transit or purporting to limit or condition the obligation of the Custodian to comply with any orders or instructions with respect to the Currency-in-Transit as set forth in Section 3 without the prior written consent of the Secured Party acting in its sole discretion. In the event of any conflict with respect to control over the Currency-in-Transit between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement will prevail.

8. Notice of Adverse Claims. Except for the claims and interests of the Secured Party and of the Grantor in the Currency-in-Transit, the Custodian on the Effective Date does not know of any claim to, security interest in, lien on, or encumbrance against the Currency-in-Transit and does not know of any claim that any person or entity other than the Secured Party has been given control (within the meaning of UCC §9-104) of the Currency-in-Transit. If the Custodian becomes aware that any person or entity is asserting any lien, encumbrance, security interest or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process or any claim of control) against any funds in the Currency-in-Transit or any portion thereof, the Custodian shall promptly notify the Secured Party and the Grantor thereof.

9. Maintenance of Currency-in-Transit. In addition to the obligations of the Custodian in Section 3, the Custodian agrees to provide the Custodial Services subject to the following terms:

(a) If at any time the Secured Party delivers to the Custodian a notice instructing the Custodian to terminate Grantor’s access to any Currency-in-Transit (a “Notice of Sole Control”), the Custodian agrees that, after receipt of such notice, it will take all instructions with respect to such Currency-in-Transit solely from the Secured Party, terminate all instructions and orders originated by the Grantor with respect to such Currency-in-Transit, and cease taking instructions from the Grantor, including, without limitation, instructions for distribution or transfer of the Currency-in-Transit.

(b) If the Secured Party requests, the Custodian will provide the Secured Party, whether by internet access or otherwise, with a copy of each periodic statement or similar record relating to each Currency-in-Transit ordinarily furnished by the Custodian to the Grantor. The Grantor authorizes the Custodian to provide the Secured Party, whether by internet access or otherwise, any other information concerning any Currency-in-Transit that the Custodian may agree to provide to the Secured Party at the Secured Party’s request.

10. Binding Effect. The terms of this Agreement will become effective when it has been executed by the Grantor, the Secured Party and the Custodian, and thereafter will be binding upon, and will inure to the benefit of, the parties hereto and their respective successors and permitted transferees until termination as set forth in Section 12.

11. Notices. Any notice, request or other communication required or permitted to be given under this Agreement must be in writing and deemed to have been properly given when delivered in person, or when sent by facsimile or other electronic means and electronic confirmation of error free receipt is received or two days after being sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to the party at the address set forth below.

Grantor:

Athena Bitcoin Global

Attn: Xxxxxx Xxxxxxxxxx, CEO (xxxxxx@xxxxxxxxxxxxx.xxx)

__________

and with a copy (which will not constitute notice) to:

Attn: Xxxxx Xxxxx, Esq. (xxxxx@xxxxxxxxxxxxx.xxx)

Law Office of Xxxxx X. Xxxxx

Custodian:

Brink’s U.S., a Division of Brink’s, Incorporated

Attn: Xxxx Xxxxxx (xxxxxx.xxxxxx@xxxxxxxxx.xxx)

000 Xxxxxxxx Xxxxx

Coppell, TX 75019

and with a copy (which will not constitute notice) to:

Attn: Legal Department

000 Xxxxxxxx Xxxxx

Coppell, TX 75019

Secured Party:

KGPLA HOLDINGS LLC

Attn: Xxxxx Xx, Manager (xxxxx@xxxxxxxxx.xxx)

__________

and with a copy (which will not constitute notice) to:

Attn: Xxxxx X. Xxxxxxxxx, Esq. (xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx)

Xxxxxx Xxxxxxxxx LLP

; or at any other address specified by such Party in writing from time to time at least 5 days’ prior to the sending or transmission of the subject notice.

12. Termination. Except as otherwise provided in this Section 12, this Agreement and the obligations of the Custodian hereunder will continue in effect until the security interests of the Secured Party in the Currency-in-Transit have been terminated pursuant to the terms of the Security Agreement and the Secured Party has notified the Custodian of such termination in writing. This Agreement may be terminated by:

(a) the Secured Party at any time by written notice to the other parties; or

(b) the Grantor, by written notice signed by the Grantor and the Secured Party, delivered to the Custodian not less than 30 days prior to the effective termination date.

13. Neither the Grantor nor the Custodian will terminate the Services Agreement prior to termination of this Agreement, without the prior written consent of the Secured Party, except in the case of (i) the Grantor’s breach of this Agreement that remains uncured for more than thirty (30) days; (ii) the Grantor’s and/or the Secured Party’s breach of the Services Agreement, and/or (iii) the Secured Party’s breach of this Agreement. Upon the occurrence of a breach under (ii) or (iii) above, the Custodian shall have the immediate right to terminate the Services Agreement.

14. Survival. Section 6 will survive termination of this Agreement.

15. Fees and Expenses. Unless and until a Notice of Sole Control has been issued by the Secured Party, the Custodian agrees to look solely to the Grantor for payment of any and all fees, costs, charges and expenses incurred or otherwise relating to the Currency-in-Transit and Custodial Services (collectively, the “Account Expenses”), and the Grantor agrees to pay such Account Expenses to the Custodian on demand therefor. The Grantor acknowledges and agrees that it is solely liable to the Custodian for all Account Expenses unless and until a Notice of Sole Control has been issued. After a Notice of Sole Control has been issued, the Secured Party is liable for all Account Expenses going forward, and the Custodian agrees to look solely to the Secured Party for payment of all Account Expenses. Nothing herein shall prevent the Custodian from exercising its right to setoff as set forth in the Services Agreement.

16. Severability. If any term or provision set forth in this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement, other than those provisions held invalid or unenforceable, will be construed in all respects as if such invalid or unenforceable term or provision were omitted.

17. Amendment; Construction. No amendment to this Agreement will be binding on any party unless it is in writing and signed by all of the parties. Any provision of this Agreement benefiting a party may be waived only by a writing signed by that party. References to Sections and Schedules herein are references to the sections and schedules of this Agreement, unless otherwise expressly stated.

18. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail or other transmission method, and may bear signatures affixed through .pdf or other software including without limitation any electronic signature platform complying with the U.S. federal ESIGN Act of 2000 (e.g., xxx.xxxxxxxx.xxx); any counterpart so delivered will be deemed to have been duly and validly executed and delivered and will be valid and effective for all purposes.

[Signature Pages Follows]

[Signature Page to Currency-in-Transit Control Agreement]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the Effective Date.

	GRANTOR:


	ATHENA BITCOIN GLOBAL

	By: /s/ Xxxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxxxxxxx Title: CEO



	CUSTODIAN:


	BRINK’S U.S., a Division of Brink’s, Incorporated

	By: /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: VP

SECURED PARTY:

KGPLA HOLDINGS LLC

By: /s/ Xxxxx Xx

Name: Xxxxx Xx

Title: Manager

SCHEDULE 1

KIOSK SERVICES AGREEMENT

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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. THE REDACTED TERMS HAVE BEEN MARKED WITH THREE ASTERISKS [***]

FUEL SURCHARGE EXHIBIT

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CURRENCY-IN-TRANSIT Control Agreement

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