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HomeMy WebLinkAbout10-City Treasurer e e e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: DAVID C. KENNEDY CITY TREASURER Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an Agreement between the City of San Bernardino and Wells Fargo Bank N.A. for the provision of banking services and the deposit of monies MICC Date: 09/04/2007 Dept: CITY TREASURER Date: August 8, 2007 Synopsis of Previous Council Action: July 24, 2000 July 18, 2005 June 19, 2006 Resolution #2000-228 adopted Resolution #2005-238 adopted Resolution #2006-234, extended current agreement with Wells Fargo Bank for 6 months to December 31, 2006 and directed staff to issue an RFP for provision of banking services Recommended motion: Adopt Resolution r I),.;,Q C",~ Signature Contact person: David C. Kennedy, City Treasurer Phone: 3241 Supporting data attached: Yes Ward: FUNDING REQUIREMENTS: Amount: $52,100 annually (no new cost) Source: (Acct. No.) 772-121-2315 (Acct. Description) INTEREST EARNINGS Finance: Council Notes: . NlJ. JO CITY OF SAN BERNARDINO. REQUEST FOR COUNCIL ACTION e STAFF REPORT SUBJECT: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an Agreement between the City of San Bernardino and Wells Fargo Bank N.A. for the provision of banking services and the deposit of monies. BACKGROUND: Wells Fargo Bank has provided the City of San Bernardino's banking services since July 24, 2000. The contract with Wells Fargo was for a 5-year period, with an extension to June 30, 2006. Council directed staff to go out to bid for banking services and extended the present contract for six months to December 31,2006. e On July 21, 2006 Susan M. Cotton, CTP of Money Matters Consulting, submitted her proposal for the RFP Project. An outside consultant who specializes in cash management and banking services for public agencies, Money Matters Consulting, was retained to conduct the Request for Proposals for Banking Services. The Request for Proposal went out on October 27,2006, with a closing date of November 21,2006. Ten banks responded with proposals and were considered. These banks were narrowed down to three: Bank of America, Union Bank, and Wells Fargo Bank. Please see Exhibit A, attached, for a copy of the comparison matrix presented by Money Matters Consulting. Upon review of the proposals, the City Treasurer recommends Wells Fargo Bank NA to provide banking services. Unless terminated sooner in accordance with the Service Documentation, the Master Agreement and all services will continue in effect for a 5-year period, with options to renew for two 1-year periods. FINANCIAL IMPACT: Estimated annual banking fees in the amount of $52,020, resulting in an annual fee savings of $40,900 when compared to the annual fees the City is currently paying Wells Fargo Bank. Costs are based on per-transaction charges, per the agreement. The actual cost and savings will vary based on the services we use and the volume. The amount quoted is an estimate. RECOMMENDATION: e Adopt Resolution. e e < ~ .c x III ..... .~ ~~ .... "';;; ou:~ ,.. (f) :::: - Ql 0 1::l.~ U .... ;:. "'..... ra,-o....c c Q.) Q.l 0 l....CI)t::("\f Q) Ol~...... ctlS '" '" "'~Q;'" - ,.... .... ct ('t; ..... .... ::: cn~~li .....0..... .. &' o '" >-_CO --0 ;t:: 0 <:l U Ill... .,... '" - Q. ~ III 0..... ::::0... - o (.) -"" l: III ell o OJ ~ III LL '" :ql M' .,. ... '" o - . ~<fl. OM ":~~ ~~N I I ~ '" U "" "'- 5:::;; ,e . N + " .5; d: '" " Q. ",0 IE IE ~ ~*'7~8 "'C ~ >. I l.t')~ " .:E - N aJ ~ ... -E... ~ c:: Q;I " 0 t:: > :.'" o " o Cl " :i: (f.) c: m= Q) "'''''1i CDas~ c ...... 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'" " ~ .. '" " Cl:~.z. ~N= :'Cl l:: ",..,:~ :c E " o U o 8 .,.; N ... Cl c: :.i:' 0 c: en c: CD ~"*j-li - oS! " c: c:~ ~ Q)<(ID.c E Cf.I c.J ... E c CD :I ~...J <c ~ ~ e 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e e RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WELLS FARGO BANK N.A. FOR THE PROVISION OF BANKING SERVICES AND THE DEPOSIT OF MONIES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City an agreement with Wells Fargo Bank N.A. for the provision of banking services to the City of San Bernardino, and the deposit of monies, a copy of which is attached hereto as Attachment "A" and incorporated herein by reference, and SECTION 2. That the authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. III III III III III III III tF /0 1/107 III Ie e e 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WELLS FARGO BANK N.A. FOR THE PROVISION OF BANKING SERVICES AND THE DEPOSIT OF MONIES. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Conunon Council of the City of San Bernardino at a meeting thereof, held on the 7 _dayof ,2007, by the following vote, to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 11 12 13 14 ESTRADA BAXTER BRINKER DERRY 15 KELLEY 16 JOHNSON MCCAMMACK Rachel Clark, City Clerk 2007. The foregoing Resolution is hereby approved this day of Approved as to form: PATRICK J. MORRIS, Mayor City of San Bernardino JAMES F. PENMAN, City Attorney By: e e e SERVICES AGREEMENT WELLS FARGO BANKING THIS. AGREEMENT is made and entered into this _day of ',2007 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and WELLS FARGO BANK N.A.,{"BANK"). WITNESSETH: A. WHEREAS, CITY proposes to have BANK perform the services described herein below; and B. WHEREAS, BANK represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and BANK desire to contract for Banking Services as described in the Scope of Services, attached hereto as Exhibit"A 1-15"; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY BANK 1.1. ScoDe of Services. For the remuneration stipulated, BANK shall provide the professional services described in the Scope of Services attached hereto as Exhibit "A 1-15" and incorporated herein by this reference. If a conflict arises between the Scope of Service and this Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All services to be provided by BANK pursuant to this Agreement shall be provided in a manner consistent with the standards of care, diligence and skill ordinarily exerCised by professional BANKS in similar fields and circumstances in accordance with sound professional practices. BANK also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect BANK's performance of this Agreement. BANK further represents that no CITY employee will provide any services under this Agreement. [F:\CALKINSlAgreementsIWells Fargo Banking .Agr 2007.Final.wpd] e e e 1.3. Warranty. BANK warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. BANK shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and costs (collectively, "Losses and Liabilities"), presented, brought or recovered against CITY for, or on account of any liability under any of the above- mentioned laws, arising from or related to BANK's performance under this Agreement, except to the extent that such Losses and Liabilities are caused by the gross negligence or willful misconduct of CITY. CITY shall indemnify and hold harmless BANK from and against all Losses and Liabilities, presented, brought or recovered against BANK for, or on account of any liability under any of the above-mentioned laws, arising from or related to this Agreement, except to the extent that such Losses and Liabilities are caused by the gross negligence or willful misconduct of BANK. 1.4. Non-discrimination. In performing this Agreement, BANK shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Al!Teement. BANK acknowledges that CITY may enter into agreements with other BANKS for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delel!ation and Assil!TUDent. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. BANK may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at BANK's sole cost and expense. 1. 7 .lntentionallv Left Blank. 1.8 Citv Business Certificate. BANK shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of BANK to practice its profession, skill or business, unless exempted by law from such requirement or requirements. [F:\CAlKINSlAgrccmenlSIWells Fargo Banking.Agr 2007.Final.wpd] 2 e 2.0. COMPENSATION AND BILLING 2.1. Comoensation. Except as provided herein, BANK shall be paid as set forth in Exhibit A-I of the Scope of Services. 2.2. Additional Services. BANK shall not receive compensation for any services provided outside the scope of services specified in the Proposal unless the CITY, prior to BANK performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. BANK may submit invoices to CITY for approval. Said invoice shaH be based on the total of aH BANK's services which have been completed to CITY's sole satisfaction. CITY shaH pay BANK's invoice within forty-five (45) days from the date CITY receives said invoice. The invoice shaH describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shaH identify the number of the authorized change order, where applicable, on aH invoices. e 2.4. Records and Audits. Records of BANK's services relating to this Agreement shall be maintained in accordance with generaHy recognized accounting principles and shaH be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shaH commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A I-IS," unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or BANK may terminate the services provided under Section 1.1 of this Agreement upon thirty (30) days written notice to the other party. In the event of termination, BANK shaH be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, aH documents prepared by BANK in its performance of this Agreement including, but not limited to, finished or unfinished background investigations, shaH be delivered to the CITY within ten (10) days of delivery of termination notice to BANK, at no cost to CITY. Any use of uncompleted documents without specific written authorization from BANK shaH be at CITY's sole risk and without liability or legal expense to BANK. e (F:\CALKlNSIAgr=ncnISIWells Fargo Banking.Agr 2007.Final.wpd) 3 tit 4.0. INSURANCE 4.1. Minimum ScoDe and Limits of Insurance. BANK shaIl obtain and maintain during the term of this Agreement all ofthe foIlowing insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million DoIlars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million DoIlars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of Califomia. 4.2. Notice. BANK wiIl act reasonably to provide prompt notice to CITY if any insurance required hereunder is terminated, materially changed, reduced or cancelled. tit .4.3. Certificates of Insurance. BANK shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or tlie extent to which BANK may be held responsible for payments of damages to persons.or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shaIl prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. tit 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shaIl be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark ifsuch communication is sent through regular United [F:\CALKlNSIA_men1SIWells Fargo Banking .Agr 2007.Final.wpd] 4 tit States mail. IF TO BANK: IF TO CITY: Mr. Mark C. Hewlett Vice President/Sr. Relationship Manager Wells Fargo Bank 707 Wilshire Blvd., 11th Floor Los Angeles, CA 90017 Telephone: (213) 614-2234 Facsimile: (213) 614-3555 CITY MANAGER City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5122 Fax: (909) 384-5138 5.3. Attornevs' Fees: In the event that litigation is brought by any party hereto in connection with this Agreement; the prevailing party in a final non-appealable judgment shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. tit 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body oflaws pertaining to conflict oflaws. In the event of any legal action to enforce or interpret this Agreernent, the parties hereto agree that the sole and exclusive venue shall be a court of c;ompetent jurisdiction located in San Bernardino County, California. 5.5. Assignment: Neither party hereto shall voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of its interest in this Agreement without the other party's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release BANK of BANK's obligation to perform all other obligations to be performed by BANK hereunder for the term of this Agreement. e 5.6. Indemnification and Hold Harmless. BANK shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all Losses and Liabilities arising from or in any way related to BANK's performance under this Agreement, except to the extent such Losses and Liabilities are caused by the gross negligence or willful misconduct of CITY. CITY shall protect, defend, indemnify and hold harmless BANK and its directors, officers, attorneys, agents and employees from any and all Losses and Liabilities arising from or in any way related to this Agreement, except to the extent such Losses and Liabilities are caused by the gross negligence or willful misconduct of BANK. WICALKINS'.AgrccmcnlS'.Wells Fargo Banking .Ag< 2007.Final.wpd] 5 e e e 5.7. IndeDendent Contractor. BANK, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. BANK shall secure, at his expense, and be responsible for any and all payment ofwages~ benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for BANK and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither BANK nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of BANK and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and BANK. 5.8 Conflict of Interest Disclosure: BANK or its employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (I) requires such persons to disclose financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial affect on such interest. BANK shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. BANK shall be responsible for its work and results under this Agreement. BANK, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to BANK occurs, then BANK shall, at no cost to CITY, provide all other BANK professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited EmDlovrnent. BANK shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except 'as expressly provided herein. 5.12. No Third ParlY Beneficiarv Rights. This Agreement is entered into for the sole benefit of CITY and BANK and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. [F:\CALKJNSlAgreemenlsIWells Fargo Banking .Agr 2007.Final.wpd] 6 e e e 5.13. Headings Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation ofthis Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or theirrespective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or ofthe offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Countemarts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5. I 8. Comorate Authoritv. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and . that by doing so, the parties hereto are formally bound to the provisions ofthis Agreement. III III III III [F:\CALKJNSIA_lsIWells Fargo Banking .AgT 2007.Final.wpd] 7 e e e IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A municipal corporation Fred Wilson, City Manager APPROVED AS TO FORM: JAMES F. PENMAN, City Attorney IF:\CALKINSIAg=ments\Wells Fargo Banking .Agr 2007.Final.wpd] 8 WELLS FARGO BANK N.A. Signature Name and Title CIlY OF SAN BERNARDINO i I I' Proprietary and Confidential City of San Bemardino . 8 1 1200 1 1 7 1 430 175 3 3 1 $8.0000 $8.0000 $0.0118 $0.0000 $10.0000 $10.0000 $0.0000 $0.2000 $0.0000 $6.0000 $6.0000 $0.0000 $64.00 $8.00 $14.20 $0.00 $10.00 $70.00 $0.00 $86.00. . $0.00 $18.00 $18.00 $0.0 $288.20 e BILL PAY SERVICE (EDI) a. Monthl Maintenance b. Per Data Transmission c. Per Item Processed Subtotal 1 20 1800 $50.0000 $5.0000 $0.0650 $50~00 $100.00 $117.00 $267.00 CASH VAULT SERVICES , a. AccountMaintenance 1 $0.0000 $0.00 b. Deoosits Posted 100 $1.1000 $110.00 d. Currency Deoosited oer $1,000 635 $0.0010 $0.64 d. Coin DeDDsited-Partial.Mixed Baas 6 $5.0000 $30.00 , e. DeDosit Adiustments 1 $5.0000 $5.00 , ! f. Checks DeDosited-Unencoded 200 $0.0500 $10.00 I a. Checks DeDosited-Pre-encoded On-Us 4700 $0.0300 $141.00 I Local Clearinohouse 17500 $0.0300 $525.00 ! Remonal 10500 $0.0400 $420.00 , Transit 4100 $0.0400 $164.00 I Encodina Reiects (Excess) 250 $0.5000 $125.00 , h. Return Item Processina $0.00 , I Maintenance 1 $25.0000 $25.00 i Checks Recleared 150 $1.0000 $150.00 Returned Items 75 $1.2500 $93.75 Returned Items Faxed-Per Item . 75 $0.0000 $0.00 i Subtotal $1.799.31 e Do NOT DISCLOSE - CONFIDENTIAL TRADE SECRET A-I I CIlY OF SAN BERNARDINO e e e . 5 525.00 5125.00 2700 50.0500 5135.00 2700 50.0200 554.00 30 50.6667 520.00 30 51.0000 530.00 3 50.0000 50.00 4 50.0000 50.00 3500 50.0500 5175.00 20 50.0500 51.00 2 525.0000 550.00 3000 50.0400 $120.00 3 55.0000 51!i.OO rator Assisted 1 515.0000 515.00 15 $5.0000 575.00 $815.00 AUTOMATED CLEARINGHOUSE (ACH) a ACH Maintenance eb b. In ut-Batch Releases c. ACH-One Da Items d. ACH-Two Da Items e. ACH NOC Mailed Advice h. ACH Returned Items i. ACH Returns Mail Subtotal 3 . 20 25 4000 1 100 10 1 18 1 13 a. Monthl Maintenance b. State and Federal Taxes c. Tax Recei ts Subtotal Do NOT DISCLOSE - CONFIDENTIAL TRADE SECRET 515.0000 $3.0000 50.0600 50.0200 $2.0000 52.0000 52.0000 $45.0 $60.00 51.50 580.00 52.00 5200.00 520.0 $408.50 50.0000 56.0000 $6.0000 $6.0000 50.00 $108.00 $6.00 $78.00 $192.00 . CITY OF SAN BERNARDINO e e e a. Visa Discount Rate-Non ualified b. Visa Transactions-Per Item c. Me Discount Rate-Non-Qualified d. Me Transactions-Per Item . Account Maintenance-Merchant IDs Subtotal $65,000 625 $35,000 275 10 Please see Tab Q Please see Tab Q Please see Tab Q Please see Tab Q Please see Tab Q OTHER APPLICABLE SERVICES I , [ TOTAL MONTHLY BANK FEES $4,335.09 I i i Other Information , Earnin!ls Credit Rate for October 2006: 4.82% i , Uncollected Funds Rate 1%): P+2% . . Overdraft Rate /%): P+2% Mark-Up on Third-Partv Items (%1: 0 , Fixed Pricina Guarantee (# of yearsl: . 5 years I , Bank Information , I Name of Bank Officer , Mark Hewlett Sianature of Authorized Bank Officer i [ Contact Tel Number 213-814-2234 : . , Submitted Bv IName of Bankl: Wells Faroo Bank , . . . , ..., I . . . Do NOT DISCLOSE - CONFIOENTIAL TRAOE SECRET or, II tit MASTER AGREEMENT FOR TREASURY MANAGEMENT SERVICES e tit The Service Documentation' described below contains the terms under which Wells Fargo provides treasury management services rServices"). . The Wells Fargo bank through which the Services will be provided rBank") and the Company to which the Services will be provided are identified in the Acceptance of Services rAcceptance"). . Bank and Company agree: 1. Service Documentation. The Service Documentation includes: 1 .1 The Service Description for each Service. 1.2 The Acceptance. 1.3 This Master Agreement for Treasury Management Services rMaster Agreemenr). 1.4 The account agreement for the business or commercial deposit account(s) (each, an "Accounr) that Company or Company's affiliate or subsidiary maintains at Bank or Bank's affiliate in connection with a Service. The account agreement includes the Dispute Resolution Program that Company and Bank agree to use to resolve any disagreements between Company and Bank regarding accounts and Services governed by the Service Documentation. 1.5 User Guides which include, specifications, instructions, and notices. 2. 3. 1.6 The set-up form(s) for each Service. The Service Documentation also applies to any Service that is provided by an affiliate of Bank and any Service that is used by an affiliate or a subsidiary of Company. "Bank" includes each such affiliate, and "Company" includes each such affiliate and subsidiary. All terms defined in this Master Agreement shall have the same meaning when used in the Service Documentation. If there is a confiict among the documents that make up the Service Documentation, the documents will govem in the order set forth above. Company acknowledges receiving a copy of the Service Documentation for each Service it requested when n entered into this Master Agreement. Services. Bank and Company will agree upon the Service(s) to be provided. Changes to Services. Bank may change (or add to) the terms and fees in the Service Documentation at any time upon prior written notification. If Company discontinues using the affected Service before the change becomes effective, it will not be bound by the change. If Company continues to use a Service afler the change becomes effective, it will be bound by the change. 4. Term and Termination. Company and Bank agree thatthe'Service Documentation shall be effective for the period commencing L-J, 2007 through L..J, 2012 (the "Term"), and Company shall have two (2) options to renew the Service Documentation for additional one-year periods with prior written notice to Bank before the current T enn expires. Unless terminated sooner in accordance with the Service Documentation, this Master Agreement and all Services will continue in effect during the Term until terminated by either party upon thirty (30) days prior written notice to the other party (unless a Service is terminated sooner in accordance with the Service Documentation).' Bank may terminate any Service during the Term following notice to Company of a breach of any provision of the Service Documentation and Company's failure to cure the breach within fifteen (15) days of the date of such notice. Bank may also terminate any Service during the Term without notice to Company ff Company is subject to a petition under the U. S. Bankruptcy Code or if Bank determines, in its sole discretion, that a material adverse change has occurred in Company's abilny to perform its obligations under the Service Documentation. The termination of a Service will not affect Company's or Bank's rights with respect to transactions which occurred before termination. Bank shall not be liable to Company for any losses or damages Company may incur as a result of any termination of any Service. 5. Service Fees. Company shall pay Bank the fees described in the Service Documentation and any taxes applicable to each Service. however designated, exclusive of taxes based on Bank's net income: provided, further, however, that Bank agrees that the fees during and throughout the Term shall be as set forth in the Proposal, dated November 21, 2006, and shall not be amended except by writing signed by both Bank and Company. Bank may debit Master Agreement TM-f450 revised4l2005 . Pege1of4 A-2 e e e 6. Company's account(s) with Bank for any fees not covered by earnings credits and any taxes that are due, or it may send an invoice to Company for such amounts, which Company shaD promptly pay. Bank may assess finance charges at a rate of 1.5% per month (18% per annum) or the highest rate permitted by law, whichever is less, on any invoiced fees or taxes that are not paid within thirty (30) days of the due date and shaU apply payments and other reductions of amounts owed firs! to unpaid interest and then to other fees and charges. Confidential Information. Unless otherwise provided in the Service Documentation, all User Guides and computer programs provided pursuant to this Master Agreement constitute Bank's or its vendor's confidential information rConfidential.lnformation"). Bank or its vendor will remain the sole owner of all such Confidential 'Information, and Company wiU not acquire any interest in or rights to it as a result of Company's use of any Service except as set forth in the Service Documentation. Company will mainteln the confidentiality of the Confidential Information and will not disclose (or permit its employees or agents to disclose), copy, transfer, sublicense or otherwise make any of it available to any person or entity, other than its employees who have a need to use the Confidential Information In connection with the applicable Service. Company shall notify Bank immediately if it knows or suspects that there has been any unauthorized disclosure, possession, use or knowledge (each, an "Unauthorized Use") of any Confidential Information, and if it is responsible for the Unauthorized Use, it will, at its expense, prompUy take all actions, including without limitation initiating court proceedings to recover possession or prevent further Unauthorized Use of the Confidential Information and obtain redress for any injury caused to Bank as a resuit of such Unauthorized Use. In addition, except as permitted by applicable law, Company may not decompile, reverse engineer, disassemble, modify, or create derivative works of any computer program provided pursuant to this Master Agreement. 7. Third Party Networks; Data Transmission; Use of Required Software. 7.1 If Bank determines that any funds transfer or communications network, Internet service provider, or other system(s) it has selected to provide a Service is unavailable, inaccessible or otherwise unsuitable for use by Bank or Company, Bank may, upon notice to Company, suspend or discontinue the affected Service. 7.2 If Company transmits data, infonnation or instructions (collectively "Data") to Bank, or requires Bank to deliver Data to Company, using a leased line, or Value Added Network ("VAN") or any other third party provider (collectively, "Third Party Provide"), Company agrees that Bank shall have no responsibility for the accuracy, completeness, security or authenticity (collectively "Integrity") of the Data sent through such Third Party Provider, and Company agrees that Bank may rely upon the Data delivered to Bank by the Third Party Provider and that Bank shall have no independent obligation to verify the Integrity of such Data before receiving, or acting upon, any such Data. 7.3 If Company transmits data to Bank using a leased line or Value Added Network rvAN"), Bank strongly recommends that Company secure a back-up means of transmission such as Secure File Transport for use in the event of a communications disruption. 7.4 Company shall use and maintain in good working order (and at its own expense) software, hardware and other. equipment necessary for Company to use the Service(s) In accordance with the Service Documentation. 8. No Representations or Warranties of Bank or Softwaril Vendor. Neither Bank nor any software vendor makes any express or implied representations or warranties with respect to the Services or any software used in connection with the Services including without limitation any warranty as to the merchantability or fitness for a particular purpose, other than those expressly set forth in the Service Documentation. 9. Liability and Indemnification. 9.1 Bank will perform each Service in accordance with reasonable commercial standards applicable to Bank's business; laws, regulations and operating circulars governing the activities of Bank; applicable funds transfer' system(s) and clearinghouse rules; and the Service Documentation. 9.2 Bank is under no obligation to honor, in whole or in part, any entry, file, batch release, payment order, transaction or instruction (each, an .Order"), which a) exceeds Company's available funds on deposit in an Account with Bank related to the Order, unless otherwise provided in the Service Documentation; b) is not In accordance with the Service Documentation or Bank's applicable policies, procedures or practices as Bank may from time t~ time establish and make available to Company; c) Bank has reason to believe'may not been duly authonzed: should not be honored for its or Company's protection, or involves funds subject to a hold, .dlspute, restnction or legal process that prevents their withdrawal; or d) would possibly result in Bank vlo!atlng any apphcable rule or. regulation of any federal or state regulatory authority Including without hmltat.on any Federal Reserve nsk control program or guidelines such as the limitations on Bank's intra-day net funds position. . Master Agreemenf TM-1450 revised4l2005 Page 2of4 _ _10. _ 9.3 Company shall prompUy turilish written proof of loss to Bank and notify Bank If ~ bec:clrMs aware of any third party claim related to a Service. Company shall cooperate tully (and at U own e~se).with Ba.nk in recovering a loss. If Company is reimbursed by or on behalf of Bank, Bank or .ts des'llnee will be subrogated to all rights of Company. Any claim, action or proceeding against Bank for losses or damages arising from a Service, Including Bank's honoring or dishonoring a check covered by a Service, must be brought within o~e (1) year from the date of the ael or omission or in the case of a check from the date the check was first paid or returned by Bank. Bank will have no liability for failure to perform or delay in performing a Service if the failure or delay is due to circumstances beyond Bank's reasonable control. Except in the case of Bank's gross negligence or intentional misconduct, Company shan indemnify and hold Bank, its directors, officers, employees and agents harmless from all losses or damages that arise o~ of a) the performance of a Service in accordance with the Service Documentation including wIthoutllmilalion any warranty Bank is required to make to a third party in connection with a Service; b) an act or omission of any agent, courier or authorized representative of Company; c) If the Service Includes a license or sublicense of any software to Company, .the use or distribution of the software by Company or any person gaining access to the software through Company that is inconsistent with the license or sublicense: and d) Company's failure to secure a back-up means of transmission for data transmissions using leased lines or VANs as set forth in Subsection 7.3 above 9.4 9.5 9.6 9.7 Bank will only be liable to Company for its direct monetary losses or damages due to Bank's negligence or breach of this Master Agreement. Except in the case of Bank's gross negligence or intentional misconduct, Bank's liability to Company will be limited to an amount not to exceed ten (10) times Bank fees incurred during the calendar month immediately Preceding the calendar month in which such loss or damages _re incurred (or, if no Bank fees were incurred in such month, Bank fees incurred in the month in which the losses or damages were incurred). In no event will either party to this Master Agreement be liable to the other party for any special, consequential, incidental (including withoutlimilation court costs and attomeys' fees), indirect, or punitive losses or damages, whether any claim is based on contract or tort, or whether the likelihood of such losses or damages was known to the other party and regardless of the form of the claim or action. General. 10.1 The Service Documentation will be govemed by substantive federal laws, regulations and rules and, to the extent such laws, regulations and rules are not applicable, those of the state in which the principal office of the Bank identified on the Acceptance is located, without regard to conflicts of laws principles. Any portion of the Service Documentation which is inconsistent with applicable laws, regulations or rules will be deerned modified and applied in a manner consistent therewith, and Bank will incur no liability to Company as a resull of the inconsistency or modification and application. If any portion of the Service Documentation Is deemed unenforceable or invalid, II will not otherwise affect the enforceability or validity of the Service Documentation. 10.2 The Service Documentation is the entire agreement between Bank and Company and supersedes all prior representations, conditions, warranties, understandings. proposals or agreements regarding a Service. No course of dealing or waiver of any right on one occasion will constitute a modification of the Service Documentation or be a waiver of that right on a subsequent occasion. 10.3 Company agrees to provide Bank prompUy upon Bank's request any existing financial statements or other information pertaining to Company's financial condition or any previously unprepared financial statements which Bank may require Company to prepare and/or to be audited or reviewed by independent certified .. pUblic accountants acceptable to Bank. 10.4 Company expressly warrants that a Service will not be used in a manner which violates any federal or state law including without limitation any sanction or control administered by the Office of Foreign Assets Control or Bureau of Export Administration. 10.5 Sections 4, 5, 6, 8, 9, 10.4 and 10.5 of this Master Agreement will survive termination of thiS' Master Agreement. 10.6 Either party may provide notice to the other party by mail, personal delivery, or electronic transmission. Bank shall use the most recent address for Company in" Bank's records, and any notice from Bank will be effective when sent. Company shall use the address where Company's relationship manager or other manager is located and address any notice to the allention of such manager. Any notice from Company wII Master Agreement TM-1450 revised412005 Pege3of4 e be effective when actually received by Bank. Bank will be entilled to rely on any notice from Company that it believes in good faith was authorized by an authorized representative of Company and, except as expressly stated in the Service Documentation, shall have no obligation to verify the signature (including an electronic signature). Each party will have a reasonable time attar receipt of any notice to ad on it. All uses of the Services through Company's 10 codes, passwords, token cards, PINs, or passcodes (each, a .Code") will be deemed to be authorized by and binding on Company. Company's failure to proted Codes may allow an unauthorized party to a} use the Services, b) access Company's electronic communications and financial data, and c) send or receive information and communications to Bank. Unencrypted electronic transmission an,! not secure and Company assumes the entire risk for unauthorized use of Codes and any unencrypted electronic transmissions. 10.8 Company may not assign or transfer its rights or obligations with respect to the Service Documentation without Bank's prior written consent. Bank may assign its rights and obligations with respect to the Service Documentation to any successor by merger, consolidation or corporate reorganization. 10.7 10.9 Unless otherwise provided in the Service Documentation, the term "Banking Day" means that part of a business day occurring prior to the cutoff time determined in accordance with Bank's applicable funds availability policy. e e Master Agreement. TM-1450 revised4/2005 Page 4 of4 e Commercial Account Agreement Effective May 1, 2005 e e A-3 e e e e e Stop Paym.nt Orden; Notices of Post-Dating O.n.rol.................................................................................................................. 16 Content of StOp Pa)'menr Order ..............................................................................16 Effective Period of Stop Payment Order; Renewal; Revocation ................................16 liability to Holder in Due Course ...........................................................................17 Paper hems Paid Over Valid StOp Payment Orders..................................................!7 Overdrafts; Security Interest; Bank's Right to Setoff I Overdrafts and Insufficient Funds ...........................................................................17 Security Interest; Bank's Right to Setoff ...................................................................17 Bank F..s and Expens.s I General ........................... ................................................ ...... ................ .................18 Payment of Bank Fees and Expenses; Finance Charges .............................................18 Earnings Allowance ...... ... ... ......... ............................ ......... ...... ................ ...... ... ........ 18 Ch.cking Subaccount' I Miscellaneous I Acceptable Form of Paper Items; Document and Image Quality ............................... 19 Closing Company's Account ...................................... ...... ........ ........... ....................19 Contract Language ............... .... ..... ... .... ............... ......... ......................... ...... ......... ..19 Credit Reports ..................................................... ...................................................19 Disclosure of Information .................................... ......................... ..............;...........19 Dormant and Unclaimed Accounts ..........................................................................20 Entire Agreement; Headings; No Third Pany Beneficiary .........................................20 Laws Governing Company's Account ......................................................................20 Minimum Balance Requirements; Other Restrictions ...............................................20 Modification of Agreement; Account Conversion ....................................................20 Monitoring and Recording Communications .................................... ...... .................21 No Fiduciary Relationship ............. .................................. ......... ....... ......... ......... ..... 2' Reliance on Bank's Records ..........................................................................:..........21 Reord.ring Check, .............. .................................................................................... 21 Transferring an Interest in Company's Account .......................................................21 II. Additional Terms Applicable to All Commercial Interest-Bearing, Savings and Time Accounts ............................21 Interest-Bearing Accounts I VariableIFixed-Rate Accounts.............................. ......... ......................... ...... ...........21 Method Used ro Calculate Earned Interest ...............................................................21 Interest Accrual.. ............... .............................................. ... .............. ..... ...... ...........21 Compounding and Crediting.. ...... .... ............ ... ... ....... ..... ......... ............. h................. 22 Target Balance Accounts ..... ... ...... ... ......... ................. ..... ..... .... ....... ............ ... ..... ..;..22 Interest Adjustments ............................. .................. ......... ...... ................ ....... .......... 22 Tax Identification Number Certification .................................................................22 3 e I- i tit Commercial Savings Accounts Bank's Right to Require Notice...............................................................................22 Limitations on Transfers from Company's Savings Account ....................................22 Commercial Time Accounts I General...................................................................................................................23 Certificated Time Accounts ..................................................................................... 23 Maturity Date ................................. ........................................................................23 Time Rcqui.rcmcnrs ..... ................................................................................... ......... 23 Payment of Interest .................. ...............................................................................23 Additional Deposits ........ ......... ................... ......... ............... ............................... .....23 Withdrawal of Interest Prior to Maturity.................................................................23 Renewal Policies.. ......._ ... ... ................... .................................... .......... ...... ...... ........23 tit III. Funds Transfers ......................................................................................24 General...... ........... ............. .... ........ ............ ....... ...... ........ .......... ...... ................ ........ 24 Notice of Receipt of Funds ......................................................................................24 Reliance on Identificarion Numbers .........................................................................24 Duty to Report Unauthorized and Erroneous Fund Transfers ..................................24 Erroneous Payment Orders ................................................. ....................................24 Auromated Clearing House (ACH) Transactions ...............~.....................................24 IV. Selected Services ...........................................~......................:..................25 A TM Deposit Service .................. ..................................... ....................................... 25 Treasury Express Deposirtl Service ...........................................................................25 4 tit s e e I. Terms Applicable to All Commercial Deposit Accounts Introduction In this Commercial Account Agreement ("Agreement"), "Company" refers to the owner or accounrholder of a Wells Fargo bank commercial deposit account ("Account"). "Bank" refers to the Wells Fargo bank at which Company's Account is maintained. This Agreement includes the foHawing disclosures applicable to Bank's commercial deposit accounts and related services (each, a "Service"), that Bank has separately provided to Company: (i) the schedule of Bank's fees and other account-related information (the "fee and information schedule"), (ii) the collection schedule, (iii) .he funds availability policy; (iv) the privacy policy, (v) the rate sheets for interest-bearing accounrs. each as modified by Bank from time to time, .and (vi) any additional disclosures regarding Company's Account that Bank may provide ro Compan): Company is responsible for ensuring that each Authorized Signer is familiar with this Agreement. Unless Company has instructed Bank in writing to the contrary7 Bank may consider communications about Company's Account from an Authorized Signer on Company's Account as communications from Company. Company agrees to notify Bank immediately in writing if any Authorized Signer's authority has been terminated. This Agreement replaces all prior agreements with Bank regarding Company's Account other than agreements regarding security interests in, or services utilizing, the Account. By signing Bank's signarure card for Company's Account or by using Company's Account or a Service. Company will be deemed to have agreed to this Agreement. Company should retain a copy of this Agreement (and any information that Bank provides Company regarding changes to this Agreement) for as long as Company maintains its Account with Bank. I Defined Terms In this Agreement, certain words have a special meaning and are therefore defined. Certain terms and their definitions are found in this Section, and others are found in the text of this Agreement. Affiliale. An "'Affiliate" is a bank that is, directly or indirectly, a wholly or substantially owned subsidiary of Wells Fargo & Company. Authorized Signer. An "'Authorized Signer" is a person who has Company's actual or apparent authorit). to transact business on Company's Account(s), whether or not such person has signed th.e signature -card or other documenra6on for Company's Account(s). Bank may continue to recognize an Authorized Signer's authority until Bank has received and had a reasonable time to act upon Company's written modification or revocation of it. Business Day. A "Business Day" is every day except Saturdays, Sundays and federal holidays. Collected Balance. The "Collected B~lancc" is the Ledger Balance in Company's Account less Deposit Float. Commercial Deposit Account. A "commercial deposit account" is any deposit account, other than one of Bank's business deposit accounts, that is not held or maintained primarily for personal, family or household purposes. Examples of commercial deposit accounts include an account owned by an individual acting as a sole proprietor, a partnership, a limited partnership, a limited liability partnership, a limitcd liability company, a corporation, a joint venture, a non-profit corporation, an employee benefit plan or a governmental unit including an Indian tribal entity. Deposit Roat. "Deposit Float" is the total dollar amount of Items deposited in Company's Account for which, based on the collection schedule used by Bank or the applicable Affiliate for this eype of account, Company's Account has not yet been credited for purposes of calculating the Collected Balance. e tit e Deposited Item. A "Deposited Item" is an Item (including a non-US. Item) that Bank cashes or collects for Company or accepts for deposit to Company's Account. Investable Balance. The "Investable Balance" is the Collected Balance in Company's Account less (i) the portion of such Collecred Balance rhar Bank is required by law ro hold in reserve ar a Federal Reserve Bank and (ii) other adjustments. hem. An "Item"' includes a check. substitute check, purported substitute check. electronic item. draft, demand draft, prcauthorizcd draft, remotely created check, remotely created item. remotely created consumer item, image replacement document or other order or instruction for the payment. transfer, or withdrawal of funds (including a withdrawal slip), automatic transfer, and electronic transaction (including a wire transfer, an ACH transfer and a Consumer ACH Debit Entry), any wriuen document created or authorized in Company's name that would be a check or draft but for the fact that it has not been signed, and a cash-in ticket or a deposit adjustment or a photocopy or an image of any of the foregoing. Ledger Balance. The "Ledger Balance" is the balance in Company's Account after all debits and credits for the Business Day are poned. Overdraft. An "Overdraft.. is any event that results in a negative balance in Company's Account. Paper Item. A "Paper Item" is an Item that is in paper form. Service. A "Service" is any service Bank provides to Company including without limitation any Treasury Management Service. Arbitration Agreement Agreement to Arbitrate. Except as stated in "No Waiver of Self~Help or Provisional Remedies" below, Company and Bank agree, at Company's or Bank's request. to submit to binding arbitration all claims, disputes and controversies between or among Company and Bank (and their respective employees, officers, direerors, attorneys. and other agenes), whether in tort, contract or otherwise arising out of or relating in any way to Company's Account(s) and/or Service(s) and their negotiation. execution, administration, modification, substitution, formation, inducement. enforcement. default or termination (each, a "Dispute"). Governing Rules. "Any arbitration proceeding will (i) proceed in a location selected by the American Arbitration Association ("AAA") in the state whose laws govern Company's Account; (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law prOvision in any of the documents between Company and Bank; and (iii) be conducted by the AAA, or such other adminiS[rator as Company and Bank shall mucually agree upon, in accordance with the AAA"s commercial dispute resolution procedures, unless the claim or counterclaim is at least 51,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the arbitration shall be conducted in accordance with the AAlfs optional procedures for large, complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial dispuces to be referred to, as applicable, as the "Rules"). If chere is any inconsistency between the terms hereof and any such Rules, the terms and procedures set forth herein shall comrol. Any party who fails or refuses to submit to arbitration following a lawful demand by any other patty shall bear all costs and expenses incurred by such other parry in compelling arbitration of any Dispute. Nothing contained herein shall be deemed to be a waiver by Bank of the protections 6 e e e afforded to it under 12 U.S.C. See,rion 91 or any similar applicable state law. No Waiver of Self-Help or Provisional Remedies. This arbitration requirement does not limit the right of either party to (i) exercise self-help remedies including setoff or (ii) ohtain provisional or ancillary remedies such as injunctive relief or attachment, before, during or after the pendency of any arhitration proceeding. This exclusion does not constitute a waiver of the right or obligation of either parry to submit any Dispute to arbitration or reference hereunder, including those arising from the exercise of the actions detailed in (i) and (ii) of this subsection. - Arbitrator Quali6cations and Powers. Any Dispute in which the amount in controversy is 55,000,000.00 or less will be decided by a single arhitrator selected according to the Rules. and who shall not render an award of greater than 55,000,000.00. Any Dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majoriry vote of a panel of three arbitrators; provided however. that all three arbitrators must actively participate in all hearings and deliberations. Each arbitrator wlll be a neutral attorney licensed in the state whose laws govern Company's Account and who has a minimum of ten years experience in the substantive law applicable to the subject matter of the Dispute to be arbitrated. The arbitrator(s) will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator(s) will decide (by documents only or with a hearing at the discretion of the arbitrator(s)) any pre-hearing motions which are similar [Q motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator(s) shall resolve all Disputes in accordance with the substantive Jaw of the state whose laws govern Company's Account and may grant any remedy or relief that a court of such state could order or gram within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator(s) shall also have the power to award recovery of all COSts and fees, to impose sanctions and to take such other action as deemed necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the state rules of civil procedure for the state whose laws govern Company's Account or other applicable law. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The institution and .maintenance of an action ror judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any parry, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. " Discovery. In any arbitration proceeding, discovery wlll be permitted in accordance with the Rules. All discovery shall be expressly limited to matters directly relevant to the Dispute being arbitrated and must be completed no later than rwenty (20) days before rhe hearing dare and wirhin 180 days of the filing of the Dispute with the AAA. Any"requests ror an extension of the discovery periods, or any discovery Disputes, will be subject to final determination by the arbitrator(s) ~pon a showing thac the request for discovery is essential for the parry's presentation and that no alternative means for obtaining information is available. Class Actions and Consolidations. Company and Bank agree that the resolution of any Dispute arising pursuant to the terms of this Agreement shall be resolved by a separate arbitration proceeding and shall not be consolidated with other Disputes or treated as a class. Neither Company nor Bank shall be entitled to join or consolidate Disputes by or against others in any arbitration, or to include in any arbitration any Dispute as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a private attorney general capacity. Payment of Arbitration Cos~s and Fees. The arbitrator(s) shall award all COStS and expenses of the arbitration proceeding. Miscellaneous. To the maximum extent practicable, the AAA, the arbitrator(s), Company and Bank shall take all action required to conclude any arbitration proceeding within 180 days of the filing 7 e e of the Dispute with the AAA. !he arbitrator(s), Compan)t. or Bank may not disclose the existence, content or results thereof, except for disclosures of information by Company or Bank required in the ordinary course of business, by applicable law or regulation, or to the extent necessary to exercise any judicial review righrs set forth herein. If more than one agreement for arbitration by or between Company and Bank potentially applies (0 a Dispute, the arbitration agreement most directly related to Company's Account or the subjea marter of the Dispute shall control. This arbitration agreement shall survi\'e the closing of Company's Account or termination of any Service or the relationship between Company and Bank. Statements and Other Account-Related Information e Mailing Statements and Other Account-Related Information to Company. Except as expressly provided otherwise in this Agreement, Bank will mail (or otherwise make available to Company) statements for Company's Account and notices and other informarion regarding Company's Account or any Service (collectively; "Account-Related Information") to the postal or electronic address refleered in Bank's records for Company's Account. Any statement or Account-Related Information will be deemed to have been sent to Company on the first Business Day following the date on it. A statement or other Account-Related Information that is held for Company to pick up will be deemed to be delivered to Company at the time that Bank makes it available for pick up. Company's Obligation to Review Statements and Other Account-Related Information and 10 Notify Bank of Errors. Company agrees to promptly and carefully examine each statement for Company's Account and any other Account-Related Information and any paid Items that are returned with (or described in) the statement and any other Account-Related Information and to promptly notify Bank of, and reimburse Bank for, any erroneous credit to Company's Account. Within thirty (30) days after Bank mails or otherwise makes the statement or other Account-Related Information available to Company. Company will notify Bank of any claim for credit or refund due. for example. to an erroneous or unauthorized debit, a missing signature, an unauthorized signature, or an alteration (each, an "unauthorized transaction"). Within six (6) months after Bank mails or otherwise makes the statement or other Accoum-Related Information available to Company, Company will notify Bank of any claim for credit or refund resulting from a forged. unauthorized, or missing endorsement. Such notification is to be made by (i) calling the telephone number listed on the statement for Company's Account or in the other Account-Related Information for such purpose and (ii) submitting a written report to Bank as soon as possible, but, in any event, within the timcframes specified above. If Company fails to notify Bank within the timeframes specified above, the balance shown on the statement for Company's Account or other Account-Related Information will be conclusively presumed to be COtrect. and Company will be deemed to have released Bank from all liability for the Items charged to Company's Account and for all other transactions covered by the statement or other Account-Related Information. In addition, if Company fails to notify Bank of an unauthorized transaction on Company's Account within thirty (3D) days after Bank mails or otherwise makes the statement for Company's Account or other Account- Related Information describing the unauthorized transaction available to Company; Bank will not be liable to Company for any unauthorized transactions on Company's Account by the same person that could have been prevented if Company had complied with Company's obligations under this subsection. If Company notifies Bank of any claim for credit or refund luer than required by this subsection, Bank may assert, at Company's request and on Company's behalf, any claim against a third party that Bank determines in Bank's sole discretion is permitted under the laws governing Company's Account or applicable rule. Returned, Unclaimed Statements or Other Account.Related Information. Unless otherwise prohibited by the laws governing Company's Account, (i) if two or more statements for Company's Account are returned, Bank may disconrinue sending statements for Company's Account and other Account-Rdated Information to Company until Company provides a valid address to Bank; (ii) Bank may destroy statements for Company's Account 8 e e e and other Accounr.Relared Information that arc sent to Company and returned to Bank as undeliverable; and (iii) if Bank holds rhe stalemenl Col Company's Accounl or olher Account-Related Information for COJDpany to pick up and the statement remains unclaimed for sixty (60) days, Bank may send the statement to the address reflected in Bank's records for Company's Account or destroy it. Address Changes for Statements for Company's Account and Other Account-Related Informarion. Company may instruct Bank to change the address to which Bank mails (or the means by which Bank otherwise makes available) statements for Company's Account and other Account-Related Informarion at any time. Bank may act on any such instruction purportedly made on Company's behalf within a reasonable time after Bank receives such instruction. Unless Company instructs Bank otherwise, Bank may in its sole discretion change the address only for the Account(s) Company specifies or for all or some of Company's other Accounts with Bank. Bank may change Company's address of record if Bank receives an address change notice from the U.S. Postal Service or if Bank receives information from a third party in the business of providing correct address information that the address in Bank's records no longer corresponds to Company's address. Notices and Other Mail. Any notice Company sends Bank will not be effective until Bank actually receives it and has a reasonable opportunity to act on it. If there is more than one Authorized Signer on Company's Account, Bank may send statements and other Account-Related Information to anyone of them (unless Company has otherWise instructed Bank in writing). Company assumes the risk of loss in the mail. Any notice Bank sends Company wlll be effective when mailed or otherwise made available to Company. . Electronic Communications. If Company provides Bank with an electronic address to which Bank may send electronic communications, Company agrees that Bank may send to Company. by electronic communication any information that the laws governing Company's Account require be sent to Company in writing, provided such electronic communication does not violatc the laws governing Company's Account. "Electronic communication" means a message transmitted electronically in a format that allows visual text or images to be displayed on equipment such as a personal computer monitor. Fraud Prevention Protection Against Unauthorized hems. Company acknowledges that there is a growing risk of losses resulting from i.mauthorized Items. Bank offers 5crvices that provide effective means for conrrolling the risk from unauthorized Items. Thcse Services include: Positive Pay, or Positive Pay with Payee Validation. or Reverse Positive Pay (each offered by Bank in conjunction with Bank's Account Reconciliation Plan Service); ACH Fraud Filter; and Payment Authorization Scrvice. If Bank has expressly recommended that Company use one or more of these Services (or any other Service related to fraud prevention that Bank offers aftet the date of this Agreement), and Company either decides not to use the recommended Scrvice or fails to use the recommended Service in accordance with the applicable Service Description or other Bank documentation applicable to the Service, Company will be treated as having assumed the risk of any losses that could have been prevented if Company had used the recommended Service in accordance with the applicablc Service Description or applicablc documentation. Lost or Stolen Paper Items; Unauthorized Items. If any of Company's unissued Paper Items has been lost or stolen, or if Company learns that unauthorized Items are being issued on Company's Account, Company agrees to notify Bank at once. To the extent that Company's failure to so notify Bank hampers Bank's ability 9 e e e to prevent loss. Bank will be relieved of any liability for suc:h Items. Upon receipt of any such notice, Bank may at its sole discretion and without any liab.i1iry to Company take one or more.of the following actions: (i) close Company's Account and open a new account for Company; (ii) dishonor any Paper Item Company or an Authorized Signer has indicated may have been lost or stolen (unless Company or an Authorized Signer subsequendy has instructed Bank to honor such an Item); or (Hi) pay any Paper Item presented for payment _ .on Company's Account, provided Company has instructed Bank to pay such Paper Item and given Bank the number of that Paper Item. If Bank opens a new account for Company and Company has authorized a third parry to automatically make regular deposits to or withdrawals from Company's Account (such as wire or ACH transfers), Bank shall have no liability to Company if Company does not recei.. any ",gularly scheduled deposit Ot if a regularly scheduled payment is not made for Company due to Company's failure to notify that third party in a timely fashion of the number of Company's new Account. Preventing Misuse of Company's Account. Company agrees to take reasonable steps to ensure the integrity of Company's internal procedures with respect to Company's Account and Items drawn on Company's Account or deposited to it. To help prevent embezzlement and protect Company's business assets, Bank recommends Company: Assign responsibilities for Company's Account to multiple individuals. Those who reconcile statements for Company's Account should be different from those who issue Items drawn on Company's Account. Reconcile statements for Company's Account as received and notify Bank immediately of any problem. Contact Bank immediately if Company does not receive the statement for Company's Account when Company would normally expect to. Watch for Paper Items cashed out of sequence or made out to cash. These are classic red flags for embezzlement. Secure Company's supply of Paper Items at aU times. Stolen Paper Items are a common method of embezzlement. Periodically reassign accounting duties such as reconciling Company's Account or making a deposit. Review transaction activity on Company's Account for unexpected fluctuations. For example, compare the percentage of cash deposits to total deposit size.. Most businesses will maintain a constant average. A large fluctuation might indicate embezzlement. Destroy any Paper Item that Company does not intend to use. Use tamper-resistant Paper Items at all times. Notify Bank immediately when an Authorized Signer's authority ends so that hislher name can be removed from all signature cards and Online Banking access, and any Cards that Bank has issued to himlher can be cancelled. Do nor sign blank Paper Items. Obtain insurance coverage for these risks. Claim of Unauthorized Transactions. Bank's Ri ts and Liabili Investigation by Bank; Company's Agreement to Cooperate. Bank shall investigate any transaction Company has reponed to Bank as unauthorized (a "Claim of Unauthorized Transaction"). Company agrees to (i) submit Company's Claim of Unauthorized Transaction in writing to Bank by completing or obtaining a declaration under penalty of perjury describing Company's Claim of Unauthorized Transaction (in an affidavit form approved by Bank, if so requested); (ii) file a police repon; (iii) complete and return to Bank any documents requested of Company; and (iv) in all respects cooperate fully at Company's expense with Bank in Bank's investigation of Company's Claim of Unauthorized Transaction. 10 e tit tit Standard of Care. Bank will meet its standard of care for Company's Account by exercising ordinary care in the transaction at issue. When Bank takes an Item for processing by automated means, "ordinary carc" does not require Bank to examine the Item. In all other cases, "ordinary care" requires only that Bank follow standards that do not vary unreasonably from the general standards followed by similarly situated banks. Bank's policies and procedures are general internal guidelines for Bank's use and do not establish a higher standard of care for Bank than is mhcrwise established by the laws governing Company's Account. A mere clerical error or an honest mistake will not be considered a failure of Bank to perform any of its obligations. If Bank waives any of its rights as to Company or Company's Account on one or more occasions, it will not be considered a waiver of Bank's rights on any other occasion. Limitation of Liability; Indemnification. Whether in connection with Company's Account or a Service, in no event will either parry to this Agreement or its respective directors, officers, employees, or agents be liable to the other pany for any special, consequential. indirect or punitive damages, whether any claim is based on contract or ton or whether the likelihood of such damages was known to either party. The foregoing limitation of liability wiH not apply where expressly prohibited by the laws governing Company's Account. Bank will not have any liability to Company if there are insufficient available funds in Company's Account to pay Company's Items due to actions taken by (i) Bank in accordance with this Agreement or (ii) any third parry. Except to the extent that Bank fails [0 exercise ordinary care or breaches this Agreement, Company agrees to indemnify and hold Bank and its directors, officers, employees and agents harmless from all claims, demands, losses, liabilities, judgments, and expenses (including their anorneys' fees and legal expenses) arising out of or in any way connected with Bank's performance under this Agreement. Company agrees this indemnification will survive the closing of Company's Account and the termination of any Service. Adverse Claims: If any person or entity makes a claim against funds in Company's Account, or if Bank believes that a conflict exists between or among the Authorized Signers on Company's Account or that there is a dispute over matters such as the ownership of Company's Account or the authority to withdraw funds from Company's Account, Bank may, wi~hout any liability to Company, take one or more of the following actions: (i) continue to rely on Bank's records to determine the ownership of or the identity of the Authorized Signer(s) for Company's Acc9unt; (ii) honor the claim upon receipt of evidence satisfactory to Bank to justify such claim; (iii) freeze all or a part of the funds in Company's Account until the dispute is resolved to Bank's satisfaction; (iv) close Company's Account and send a check for the available balance in Company's Account payable to Company or to Company and each claimant; or (v) pay the funds into a,n appropriate court. Legal Process. Bank may accept and act on any legal process it believes is valid, whether served in person, by mail or by electronic notification, at any location of Bank. "Legal process" includes a levy, garnishment or attachment, tax levy or withholding order, injunction, restraining order, subpoena, search. warrant, government agency request for information, forfeiture, seizure, or other legal process relating to Company's Account. Any such legal process is subject to Bank's security interest and right of setoff. Bank will not notify Company of a grand jury subpoena affecting Company or Company's Account. '''freezing" Company's Account. As part of Bank's loss prevention program, when Bank suspects that irregular, unauthorized, or unlawful activities may be occurring in connection with Company's Account, Bank may "freeze" (or place a hold on) the balance in Company's Account (and in other Account(s) Company maintains with Bank) pending an investigation of such suspected activities. If Bank freezes Company's Account, Bank will give any notice required by the laws governing Company's Account. 11 tit e e Force Majeure. . , Neithet patty to [his Agreement shall be deemed to be in default of any of its obligations under this Agreement if its performance is delayed, hindered or becomes impossible because of any aa of God or of any public enernll hostilities, war (declared Ot undeclared), guerilla otterrorist aaivities, aa of sabotage, blockade, earthquake, Aood. landslide, avalanche, cremor, ground movement, hurricane, storm, explosion, fire, labor disturbance, riOt, insurrection, strike, sickness, accident, civil commotion, epidemic, act of government or its agencies or officers, power interruption or rransmissio!1 failure or any cause beyond the control of either parqc. Company's Insurance Coverage. Many businesses carry special insurance for employee fraud/embezz.lement. If Company does, Bank reserves the right to require Company to file a claim with its insurance company before making any claim against Bank. In such event, Bank will consider Company's claim only after Bank has reviewed Company's insurance company's decision. and Bank's liability to Company, if any, will be reduced by the amount Company's insurance company pays Company. Substitute Checks A federal law, known as the "Check Clearing for the 21st Century Act" or "Check 21," took effect on October 28, 2004. This law provides for an instrument called a "substitute check." A substitute check contains an accurate copy of the from and back of the original draft and bears the legend: "This is a legal copy of your check. You can use it the same way you would use the original check." As noted in the legend, a substitute check is the same as the original draft for all purposes, including proving that Company made a payment. Any Paper Item Company issues or deposits that is returned to Company may be returned in the form of a substitute check. Even if Company has cancelled Items returned with the statements for Company's Account, Bank may in its sole discretion withhold substitute checks therefrom. Company agrc:c:s Company will not transfer a substitute check to Bank, by deposir or otherwise, if Bank would be the first financial institution to take the substitute check, unless Bank has expressly agreed in writing to take .it. Deposits to Company's Account General. Unless otherwise agreed in writing, Bank may, without inquiry. accept a deposit to Company's Account at any time, from any person or ,entity, made in any manner including without limitation a deposit based on an image of an Item. Bank may also refuse to accept all or any part of any deposit. Bank may require that Company deposit an Item that is made payable to Company to Company's Account, instead of permitting Company to cash the Item. Bank is not _responsible for a deposit until a Bank employee has received and verified it. The receipt received at the time of deposit is not evidence that a deposit has been verified. Bank may rc:vc:rse or otherwise adjust any credit Banle belieVes it has erroneously made to Company's . Account at any time without prior notice to Company. . Collection Items. Bank may, in its sole discreri~n and with norice to Company. handle a Paper Item as a collection Item, instead of as a deposit. This means Bank sends the Item to the issuer's bank for payment and credirs Company's Account for the hem when Bank receives payment for the Item. If the hem is returned unpaid, Bank will return the Item to Company. Endorsements. This subsection applies if an endorsement is necessaty for the tra~sfer or negotiation of an Item. Company authorizes Bank to supply Company's endorsement on any Item Bank takes for collection, payment or deposit to Company's Accounr. Company also authorizes Bank to collect any unendorsed Item that is made payable to Company without first supplying Company's endorsement. provided the Item was deposited to Company's Account. Bank may refuse (0 pay any hem or accept any Item for deposit or collection unless Bank is able to verify ro its satisfaction that all of the necessary endorsements are present on rhe Item. For example, Bank may require that all endorsers be present ar the time that an Item is presented [0 Bank for payment or accepted for deposit or collection. 12 e ;~~~'t:1~-; e e Material Appearing on the Back .of Paper Items; Legends on Paper Items. Company is responsible for losses incurred by any person that cashes or accepts Company's Paper Items for deposit. if: (i) the loss is due to a delay in the return of the Item; and (ii) the delay is caused by material appearing on the back of the Item when it was issued or transferred by Company. This material may include, but is not limited to, carbon bands, blacked out areas, and printed or written text or numbers. Company is responsible for all losses, claims. damages or expenses that result from a restrictive legend or notation on Company's Paper hems. Breach of Warranties. If Company breaches any warranry Company makes under the laws governing Company's Account or rule with respect to any Item, Company shan not be released or otherwise discharged from any liability for such breach so long as Bank norifies Company of ,he breach within 120 days after Bank learns of the breach. If Bank fails to noeify Company within this 120-day period, Company shall be released from liability and discharged only to the extent Bank's failure to notify Company within such rime period caused a loss to Company. When Deposits are Credited to Company's Account. All over.the.coumer deposits or ATM deposits to Company's Account which are received before Bank's established cut-off time on any Business Day will be credited (and will be considered deposited) to Company's Account as of the dose of business that day, and will be reflected in that day's Ledger Balance for Company's Account. All other deposits (such as cash letter or lockbox) will be processed in accordance with the written agreements governing such deposits or, if there is no written agreement, banking practice. All deposits received after Bank's established cut.off time on a Business Day or at any time on a day which is not a Business Day will be credited (and will be considered deposited) to Company's Account at the end of the next Business Day. Deposits placed in one of Bank's "night depositories" before the established deadline on any Business Day will be credited to Company's Account at the close of business on that same day. All other deposits placed in the "night depository" will be credited to Company's Account at the end of the next Business Day. Use of Funds. Company's use of funds deposited to Company's Account will be governed by Bank's separarely disclosed collection schedule and, if Company's. Account is a checking account, funds availability policy. Bank's collection schedule describes when deposits of Items that satisfy certain criteria will be considered collected..A fee may be charged in connection with any use of unconected funds permitted by Bank. The then-current rate will appear on the statement for Company's Account. Bank's funds availability policy describes when funds deposited to Company's checking Account will be available to be used for all purposes. Bank may change its collection schedule and funds availability policy from time to time without priot notice to Company. Deposits at Affiliates. . Company may make deposits ~o Company's Accounr(s) at an Affiliate, provided the Affiliate agrees. If Company makes a deposit to Company's Account at an Affiliate, that Affiliate's collection schedule and funds availability policy will determine when the funds deposited to Company's Account will be considered collected and available. Deposits of Non-U.S. Items. Bank may refuse to accept for deposit or collection an Item that is payable in currency other than US. dollars or an Item that is not drawn on a financial insritution chartered in the United States (each, a "non-U.S. Item"). If Bank accepts a non-US. Item for deposit to Company's Account or collection, Company accepts all risk associated with foreign currency. fluctuation (exchange rate risk) and an)' late return of the non-US. Item. Company agrees Bank may use Bank's current buying and selling rate, as applicable, when processing a non-U.S. Item and may recover from Company's Account any loss Bank incurs as a result of processing such an Item for Company. Bank reserves the right to place longer holds on non-U.S. Items than the timcframes specified in Bank's funds availability policy for Deposited Items. 13 e e e Acts and Omissions of Other FinanciallnstirutioDs. Bank is not liable for the insolvency, neglcct, misconduct, mistake, or default of another bank or person. or for the loss or destruction of a Deposited Item or of a. norice of nonpayment relating thereto. If a Deposited Item is lost or misroured during the collection process: (i) Bank shan have no responsibility to Company for the actions or inactions of any collecting bank; (ii) Bank may charge Company's Account fot the amount of the Deposited Item (and reverse any interest that may havc accrued to Company's Account in connection with the Deposited Item); and (iii) Company agrees to cooperate with Bank in recreating the Deposited Item. Deposited hems Returned. Bank has the righr to charge back to or otherwise debit any of Company's Account(s) fot any Deposited Item that is returned (and to reverse or recover any associated interest that may have accrued), even if Company has made withdrawals against it. This right of charge back or debit is not affected by the expiration of any applicable midnight deadline, provided Bank does not have actual knowledge that such deadline has expired or. having such knowledge. Bank concludes that {iLthe Deposited Item is returned in accordance with the laws governing Company's Account or a rule (including a cleating house rule)j or (ii) Bank has received a claim that Company has breached a warranty made in connection with the Deposited Item. Bank has the right to pursue collection of such Deposited Item, even to the extent of allowing the payor bank to hold the Deposited Item beyond the midnight deadline in an attempt to recover payment. Bank may redeposit a returned Deposited Item and re-present it for payment by any means (including elec:tronic means), unless Bank has received instructions from Company not to redeposit such Deposited Item. Bank will have no liability .for taking or failing to take any action to recover payment of a returned Deposited Item. If one of Company's Deposited Irems is returned with a claim that there is a breach of warranty (for example, rhat it bears a forged endorsement or is altered in any way), Bank may debit Company's Account for the amount of the Item (plus any associated fees) and pay the amount to the person or entity making the claim. Bank is under no dury to question the truth of the factS that are being asserted, to assess the timeliness of the claim, or to assert any defense. Bank need not give Company any prior notification of its actions with respect to the claim. Company agrees to immediately repay any Overdraft caused by t~e return of a Deposited Item. Ditect Deposits Returned by Bank. If, in connection with a direct deposit plan funds are deposited to Company's Account and later returned to the originator, Bank may deduer the amount from that or any other Account Company maintains at Bank, without prior notice and at any time, except as prohibited by the laws governing Company's Account. Bank may also use any other legal remedy to recover the amount. Reconstructing Lost or Destroyed Deposited Items. If a Deposited Item- is Jost or destroyed during processing or collection (either at Bank or ar another point in the payments system). Company agrees to cooperate fully with Bank to reconstruct the Deposited Item by promptly: (i) providing Bank with a copy of the front and back of the Deposired Item from Company's or the issuer's records; (ii) asking the issuer to place a StOp payment on it (at Bank's expense) and issue a replacement hem to Company (if rhe Deposited Item has not been paid); or (iii) reviewing Company'srecords and other information and conducting any additional research as may be reasonable to determine the issuer's identity (if Company does not know rhe identity of the issuer of the Deposited Item). If Company fails to cooperate with Bank. Bank may, at any rime and without advance notice to Company, reverse or otherwise adjust any credit made to Company's Account for a lost or destroyed Deposited Item. Withdrawals from Company's Account Determining Company's Account's Balance; Debiting Company's Account. In determining the balance in Company's Account that is available to pay hems. Bank may teduce the available balance by the amount of any hold that Bank has placed on Company's Account under this Agreement. Additionally, Bank may place a hold on Company's Account 14 e e e if Bank receives an electronic notice that an Item will be presented for payment or collection against Company's Account (a "Notice of Presentment"). The hold may remain in effect from the time. the Notice of Presentment is received until the Item is presented or notice is received that the Item will not be presented. whichever first oc::c:urs. Bank may conclusively rely on the information it receives in an electronic presentment or notification when determining the available balance in Company's Account, and Bank will not have any liability fot refusing to honor any of Company's hems because of insufficient funds, even if the electronic presentment or notification incorrectly describes the Item, including its amount. Bank may debit Company"s Account on the day an Item is presented by any means. including without limitation electronically, or at an earlier time based on noti6cation received by Bank that an Item drawn on Company's Account will be presented for payment or collection. A detetmination of the balance in Company's Aca>>unt for purposes of making a decision to dishonot an Item for insufficiency or unavailabiliry of funds may be made at any time betwten the presentment of the Item (or earlier upon receipt of any Notice of Presentment) and the time of return of the Item. No more than one such derermination need be made. Order of Posting. Bank may post Items presented against Company's Account in any order Bank chooses, unless the laws governing Company's Account either require or prohibit a particular order. For example, Bank may, if it chooses, pOSt Items in the order of highest dollar amount to lowest dollar amount. Bank may change the order of posting Items to Company's Account at any time without notice. Paper Items Presented Over.the-Counter for Payment by a Non-Customer. If a Paper Item drawn against Company's Account is presented over.the-counter for payment by a person who does not have a deposit account at Bank, Bank may charge a fee to rhe person presenting the Paper hem as a condition for payment of the Paper Item. Company should contact its banker if Company has questions or if Company is required for any reason to have a place where Company's Paper Items can be cashed without a fee. The amount of the fee is disclosed in the fee and information schedule. Bank may require identification acceptable to Bank and not prohibited by the laws governing Company's Account, including a fingerprint of the person presenting the Paper Item. Bank may dishonor the Paper Item if the person refuses ro pay this fee or provide rhe identification Bank requests. Large Cash Withdrawals. If Company wants to cash a check (or make a cash withdrawal from Company's Account) for a very large amount, Bank may require five (5) Business Days' advance notice so that it can order the cash from its vault. Bank may, but is not obligated to, require that Company prpvide adequate security when Company picks up the cash and may also require Company to pick up the cash at Bank's central vault or other location. Withdrawals at Affiliates. Company may make withdrawals from Company's Account at an Affiliate, provided the Affiliate agrees. If an Affiliate cashes an Item for Company, Bank may place a hold on Company's Account(s) for a corresponding amount of funds. If the Item is later returned to the Affiliate for any reason, Bank may debit one or more of Company's Accounts for the amount of the Item. hems Resulting From Company's Disclosure of Company's Account Number. If Company voluntarily discloses Company's Account number to another person orally, electronically, in wriring, or by some other means, and Bank determines that the context of such disclosure implies Company's authorization to debit Company's Account, Bank may treat such disclosure as Company's authorization ro that person to issue Items drawn on Company's Account. Missing Signatures; Alterations; Forgeries. Bank will have no responsibility for reviewing thc number or combination of signarures on an Itcm drawn on Company's Account. This means that if Company has indicated that more rhan one signarure is required. in connection with an Item drawn on Company's Account, IS e e e Bank will have no liability [0 Company if a transaction is conducted on or through Company's Account contrary [0 the signarure rcquire:mcnu Company has specified, provided at least onc of the required signatures 'appears on the Item. Bank will have no liability to Company for failing to delta a forgery of the signature of an Authorized Signer or an alteration of one of Company's Items, if the forgery or alteration is such that a reasonable person could not reasonably be expected to detect it. Dates and Speciallnsuucrions on Paper ItCDls. Bank may, without inquiry or liabili~ pay one of Company's Paper Items even though: (i) special instructions written on the Paper Item indicate that Bank should refuse payment (e.g., "Void after rhirty (30) days," "Paid-In-Full," or "Void over SI00"); (ii) rhe Paper Irem is srale- dated (e.g., it bears a date that is morc than six (6) months in the past), even if Bank has knowledge of the date on the Paper hem; (iii) the Paper Item is post-datcd (e.g., it bears a date in the future), unless an Authorized Signer has given Bank a notice of post.dating; or (iv) the Paper Item is not dated. In addition, Bank may pay in U.S. dollars the amount that has been MICR-encoded on Company's Paper Item, even though Company has purportedly drawn the Paper hem in a foreign currency. Facsimile or Mechanical Signarures. If Company has elected to use a facsimile or other mechanical signature (including a stamp) to sign or endorse Paper Items, Bank may rely on that signature (or any signature that purports (0 be the facsimile or other mechanical signature of an Authorized Signer) as Company's aurhorized signarure without regard to when or by whom or by what means or in what ink color such signature may have been made or affixed to a Paper Item deposired (0, drawn on or otherwise debited to Company's Account. Consumer ACH Debit Entries. Under the ACH Operating Rules, certain types of ACH entries may only be presented on a consumer account. These entries (each, a "Consumer ACH Debit Entry") include without limitation Point of Purchase ("POP"), account receivable ("ARC"'. destroyed check ("XCK") and returned check ("RCK") entries. Bank shall have no obligation to pay, and no liability for paying, any Consumer ACH Debit Entry on Company's Account. Stop Payment Orders; Notices of Post-Dating General. "StOp payment otder" refers to both an order to Bank not to pay a Paper Item and to'a notice of post-dating. To be effective, a stop payment order must be received ina time and manner that gives Bank a reasonable opportunity to aa on it before paying, accepting, certifying, cashing or otherwise becoming obligated to pay Company's Paper Item as provided in the Uniform Commercial Code. Each stop payment order is subject to Bank's veri6cacion that the Paper Item described in the order has not been paid. This veri6cation may occur subsequent to the time Bank accepts the stop payment order. Content of Stop Payment Order. Bank requires the exact (i) name of the payee, (ii) number of Company's Account on which Paper Item is drawn, (iii) Paper Item amount and (iv) the Paper Item number or a range of Paper Item numbers. Bank may, at its sole discretion, use only a portion of the required information in order to identify a Paper Item. Failure to provide correct and complete information may make it impossible for Bank to stop payment of a Paper Item. Company agrees to indemnify and hold Bank harmless from and against any loss incurred by Bank as a result of Bank's paying a Paper Item if any of the information relied upon in the StOp payment order is incorrect or incomplete (or as a result of Bank's not paying a Paper Item for which a valid stop payment order is in effect). Effective Period of StOp Payment Order; Renewal; Revocation. Bank need not honor a written stop payment order for more than six (6) months. For accounts that do nor have Bank's STOP AUTO-RENEWAL Service, Company must renew a seop payment order if Company docs not want the StOp payment order to expire after six (6) 16 e e e monchs. Each renewal is treated as a new stOp payment order. for accounts with Bank's STOP AUTO-RENEWAL Service, a SlOp paymenr order is subject to annual renewals for up to six (6) twelve-month periods. unless Company has otherwise notified Bank in writing. Bank may pay a Paper Item after a srop payment order has expired, even though the Paper Item is more than six (6) months old. An instruction to revoke a StOp payment order must be received in a time and manner that gives Bank a reasonable opporroniry to act on it. Liability to Holder in Due Course. Notwithstanding Bank's timely return of any Paper Item due to a valid srop payment order, Company may nil! be liable under the Jaws governing Company's Account for the amount of that Item. Paper Items Paid Over Valid StOp Payment Orders. If Bank pays a Paper Item over a valid srop payment order, Bank may require Company to provide Bank with an affidavit describing in detail Company's dispute with the payee. If Bank crediu Company's Account after paying a post-dated Paper Item over a valid and timely notice of post-dating, Bank may charge Company's Account for the amount of the Paper Item as of the date of the Paper Item. Overdrafts; Security Interest; Bank's Right to Setoff Overdrafts and Insufficient Funds. Bank may, at its option, payor refuse to pay any Item if it would create an Overdraft on Company's Account, without regard to whether Bank may have previously established a pattern of honoring or dishonoring such an Item. Bank may take either of the following actions if Bank receives an Item drawn on Company's Account and there are insufficient available funds in Company's Account to cover the Item, without prior notice to Company: Pay the Item and create an Overdraft art Company's Account. Return the Item if the Item would create an Overdran on Company's Account. Company agrees to pa)' Bank's fee that may vary depending on the action Bank takes. Any Overdran on Company's Account is immediately due and payable, unless Bank agrees otherwise in writing. Company agrees to reimburse Bank for the attorneys' fees and other costs and expenses Bank incurs in recovering the O\'erdrafr (including Overdraft and associated fees). On a Business Day when Bank determines that there are sufficient funds in Company's Account to pay one or more but not all of the Items presented for payment on Company's Account, the order in which Bank posts such Items may affect the number of Items paid and the Overdraft and returned Item fees assessed. When Bank poSts Items in the order of highest to lowest dollar amount, the Overdraft and returned Item fees may be more than these fees would be if Bank were to post the Items in the order of lowest to highest dollar amount. Security Interest; Bank's Right to Setoff. To secure Company's performance of this Agreement, Company grants Bank a lien on and security interest in Company's Account and Company's accounts with any Affiliate. In addition, Company acknowledges Bank may setoff against any Account(s) (including matured and unmatured time Account(s)) for any obligation Company owes Bank at any time and for any reason as allowed by the laws governing Company's Account. These obligations include both secured and unsecured debts and debts Company owes individually or together with another person. Bank may consider this Agreement as Company's consent to Bank's asserting its security imerest or exercising its right of setoff should the laws governing Company's Account require Company's consent. If Company's Account is an unmatured time account, Bank may deduct any early withdrawal fee: that may be due: as a re:sult of Bank having exercised its right of setoff. If Company has a Sweep Account, Company also authorizes Bank to redee:m Company's shares in the Designated Money Market Fund and apply the proceeds to any obligation Company owes Bank. The rights described in this subsection are in addition to and apart from any other rights, including any rights granted under any security interest that Company may have granted to Bank. 17 e ._;~,.' ",. e Bank Fees and Expenses e General. Company agrees [0 pay Bank in accordance with the fee and information schedule. Compan)' also agrees to pay an amount equal to any applicable taxes, however designated, exclusive of taxes based on the net income of Bank. Payment of Bank Fee. and Expenses; Finance Charge.. Bank may either directly debit Company's Account or invoice Company for Bank fees and expenses and taxes incurred in connection with Company's Account and any Service. If an Earnings Allowance accrues on Company's Accoun~ Bank will periodically apply Company's accrued Earnings Allowance 1:0 Bank fees and expenses (unless Bank otherwise indicates in writing). Bank may debit Company's Account (or any other Account Company maintains at Bank) or invoice Company for any amount by which the fees and expenses exceed the accrued Earnings Allowance on Company's Account. Bank may also debit Company's Account (and any other account Company maintains at Bank) for attorneys' fees and any other fees and expenses Bank incurs in exercising its rights under this Agreement including Bank's rights in connection with Overdrafts, Adverse Claims, Legal Process and "Freezing" Company's Account. If there are insufficient funds in Company's Account to cover the debit, Bank may overdraw Company's Account. Company agrees to promptly pay any invoiced amOUnt. Bank may assess finance charges on any invoiced. amounts that are not paid within forry-five (45) days of the date of invoice. Finance charges are assessed at a rate of 1.5% per month (18% per annum) or the highest amount permitted by the laws governing Company's Account, whichever is less. Charges for accrued and unpaid interest and previously assessed finance charges will nOt be included when calculating finance charges. Payments and other reductions of amounts owed will be applied first to that portion of outstanding fees attributable to charges for accrued and unpaid interest and previously assessed finance charges, then to other fees and expenses. Debiting of service fees occurs on the twentieth (20m) day of each month, or if the twentieth (20th) day is not a Business Da% on the next succeeding Business Day. Earnings Allowance. Each month, the average monthly Investable Balance in a commercial demand deposit account may earn an "Earnings Allowance" which, depending on the arrangement with Bank, may be applied against that month's fees for the account. An Earnings Allowance in excess of the total monthly fees cannot be credited tc;> the account as interest and may not be carried fotward '0 the following month. Earnings Allowance. are calculated on a 365/366-day yea' basis using an "Earnings Allowance Rare," which is a variable rate established by Bank (and which may be as low as zero percent). Bank reserves the right to change this rate at any time without norice to Company; If the account is an interest-bearing account, rhe account is not eligible to earn an Earnings Allowance. Checking Subaccounts . For each checking account, Ba.nk may establish on Company's behalf a master account and two subaccounts. All informarion rhar is made available to Company about Company's Account will be ~t the maSter account level. The subaccouDts are comprised of a savings account and a transaction account. On the first day of each month, Bank will allocate funds between the two subaccounts as it deems appropriate. Items received by Bank that are drawn agains~ Company's master account will be presented for payment against the transaction subaccount. Funds will be transferred from the savings subaccount to cover Items presented against the transaction subaccount as may be needed. On the sixth (6rh) transfer from the savings subaccount during. a statement period all of the funds on deposir in the savings subaccounr will be transferred to the transaction subaccount. If Company's Account earns interest, the use of subaccounts will not affect the interest Company earns. 18 e e e MisccUancous Acceptable Form of Paper Items; Document and Image Quality. Company agrees [0 comply with Bank's specifications for Paper Items, including without limitation paper stock, dimensions, and other generally applicable industry standards for Paper Items and to include on Company's Paper Items Bank's name and address as directed by Bank. Certain features (such as securiry features) of an originally issued Item or a Deposited hem may impair the image qualiry of a substitute check, purported substitute check or electronic Item created by Bank or any third part)< Bank will not be liable for any claims, demands, judgments or expenses paid, suffered or incurred by Company, and Company will indemnify Bank from and hold Bank harmless against any claims, demands, judgments or expenses paid, suffered or incurred by Bank, arising directly or indireedy as a result of or in connection with (i) the undmely tetum of any Paper [tern Company has issued as a result of, and any presencmem.reJaced problem resuldng &om, the failure of the Paper hem to conform in any respect to Bank's Paper hem specifications, including without limitation, failure to include Bank's full name and address on the Paper Item. and (ii) any claim based on the image quality of a substitute check, purponed substitute check or electronic Item, whether created by Bank or any third party. Closing Company's Account. Company may close Company's Account at any time. Bank may, in its sole discretion, dose Company's Account at any time. If Bank closes Company's Account, Bank may send the Collected Balance on deposit in Company's Account by ordinary mail to Company's most recem address shown on Bank's account records. Whether Company or Bank closes Company's Account, Company agrees to maintain on deposit in Company's Account sufficient funds (determined in Bank's sole discretion) to cover outstanding Items co be paid from Company's Accoum, charge-backs including without limitation returned Deposited Items and Bank's fees and expenses. This Agreement shall continue to govem Company's Account until Bank makes a final disbursement from it. In addition. Bank will not be liable for any loss or damage that may result from dishonoring any of Company's Items that are presented or otherwise received after Company's Account is closed. Contract Language. English is the controlling language of the relationship between Company and Bank. Bank may translate its agreements, forms, disclosures and advertisements into another language for Company's convenience. However, if [here is' a discrepancy between Bank's English language materials and the materials in another language, the English language version is controlling, unless (i) Bank otherwise agrees with Company in writing; or (ii) the laws governing Company's Account specifically provide for a different result. Credit Reports. Company authorizes Bank to malee any inquiries that Bank considers appropriate to determine if Bank should open and maintain an Account for Company. This may include 'ordering a credit (or ocher) report (e.g.. information from any mo[Or vehicle department or other state agency) on Company. Disclosure of Information. Generally, absent Company's consent, Bank will not disclose information about Company's Account, but may do so under the following circumstances: (i) to comply with the laws governing Company's Account; (ii) in connection with examinations by state and federal banking authorities; (iii) to comply with any legal process, including without limitation a subpoena, search warrant or other order of a government agency or coun; (iv) when Bank determines that disclosure is necessary or appropriate in order to complete a transaction; (v) to verify the existence and condition of Company's Account for a third party, such as a merchant or credit bureau; (vi) to provide information [0 Company's legal representative or successor; (vii) when reporting the involuntary closure of Company's Account; (viii) when Bank concludes that disclosure is necessary to protect Company, Company's Account, or the interests of Bank; (ix) to agents, independent contractors, and other representarives of 19 e I I e e Bank in connection with the servicing or processing of Company's Account or Account transaaio"s, Account analysis, or similar purposes; (x) to Bank's Affiliates and affiliated companies; or (xi) if Company gives Company's permission. Donnant and Unclaimed Accounts. Company's Account is dormant if, for one year for a checking account or three yearS for a Commercial savings or time account, there is no customer initiated ac:tiviry (except where the laws governing Company's Account require otherwise). If Company's Account is dormant, Bank may hold all statements on Company's Account. but Bank's normal maintenance and other fees will continue to be assessed except where prohibited and ATM and Poinr-of-Sale ("POS"') access may be blocked. If Company's Account remains dormant and is unclaimed by Company for rhe period required under the laws governing Company's Account, Bank is required by those laws to "escheat" the funds; that is, to deliver the funds in Company's Account to the state whose laws govern Company's Account. Bank may charge a fee to Company's Account for mailing an escheat notice. When the funds in Company's Account are delivered to the state, Company's Account is closed, and no interest accrues. To recover funds delivered to the state, Company must file a claim with the state. Entire Agreement; Headings; No Third Party Bcnc6dary. This Agreement constitutes the entire agreement between Company and Bank regarding the subjects addressed in it and supersedes prior oral or written representations, conditions, warranties, un~erstandings, proposals or agreements regarding Company's Account. Headings do not constitute a part of this Agreement. No person or entity will be deemed to be a third parry beneficiary under this Agreement. Laws Governing Company's Account. The laws governing Company's Account include the laws and regulations of the United States and, to the extent applicable, the taws of the state in which the Bank office that maintains Company's Account is located (unless Bank has notified Company in writing t~at the laws of another state shall govern Company's Accounr), without regard to conflicts of laws principles. If Company's Account was not opened in person at a Bank office (for example, if Company opened its Account by phone, through the mail, or over the Internet), Company's Accounr will be governed by the laws of the state in which BAnk's main office is located, unless Bank notifies Company that its Account has been assigned to a parriculaf Bank office, in which event the laws of the state in which that office is located will govern Company's Account. Any lawsuits, claims, or other proceedings relating in any way to Company's Account, any Service or this Agreement, including without limitation, the enforcement of the Arbitration Agreement in this Agreement and the entry of judgment on any arbitration award shall be venued exclu.sively in the courts of the state whose laws govern Company's Account, without regard to conflict of laws principles. Each provision of this Agreement stands alone. Any provision of this Agreement which is inconsistent with the laws governing Company's Account, either in its entirety or with respect to a particular type of transaction or Item, will be deemed modified and applied in a manner consistent with the laws governing Company's Account. Any provision of this Agreement which a court of competent jurisdiction determines to be unenforceable or invalid, either in its entirety or with respect to a particular type of transaction or Item, will not affect the enforceability or validity of the remaining provisions of this Agreement. Minimum Balance Requirements; Ocher Restrictions. Bank may impose minimum balance requirements or other applicable limitalions, or restrictions on Company's Account, provided such requirements, limitations, or restrictions are disclosed to Company. Modification of Agreement; Account Conversion. Bank may in its sole discretion from time to time change this Agreement by adding new provisions or by modifying or deleting existing provisions. Each such addition, modification or deletion is ~ferred to in this Agreement as a "modification." When applicable law requires Bank to notify Company of a moqific3tion, Bank may do so by posting notice of rhe modification in Bank or at Bank's home page (www.wellsfargo.com).byincluding 20 e e e a message on or with the statement for CompanY~5 Account. or by any other means that Bank considers appropriate, unless the laws governing Company's Account requires notice by a specific means. In addition, Bank may agree in writing [0 waive a provision of this Agreement including without limitation a fee (a "waiver"). Bank may, upon prior written notice to Company, revoke any waiver. Company's continued use of Company's Account or a related Service following the effective date of any modification or revocation of any waiver will show Company's consent to that modification or revoc:ariop of waiver.. Jiank may convert Company's Account to another type of account at any time, provided Bank gives Company any advance notice that may be required. Monitoring and Rccording Communications. Bank may without liability monitor, record and main telephone conversations, electronic messages, electronic records and other data transmissions between Company and Bank at any time without furthet notice to Company, unless further notice is otherwise required by the laws governing Company's Account. No Fiduciary Relationship. Bank's relationship with Company concerning Company's Account is that of debtor and creditor; no fiduciary, quasi-fiduciary, or special relationship exists between Company and Bank. Reliance on Banle: Rccords. Bank may rely solely on its records to determine the form of ownership of and the Authorized Signers on Company's Account. Reordering Checks. Company can reorder checks by mailing the reorder form enclosed in Company's current order of checks or by catHng Bank at the telephone number shown on the statement for Company's Account. If Company or a third parry prints its checks, Bank shaH have no liability to Company if Bank is unable to process such checks by automated means. Transferring an Interest in Company's Account. Company's Account may not be pledged, assigned, or in any other manner transferred, whether in whole or in part, without Bank's written agreement. II. Additional Terms Applicable to All Commercial Interest-Bearing, Savings and Time Accounts Interest-BearinS( Accounts Variable/Fixed-Rate Accounts. Company's interest-bearing Account may be either a variable-rate or fixed-rate account. Unless Bank has specified otherwise in writing, COmpany's Account will be a variable-rate account. That means Bank may in its sole discretion change the interest rate on Company's Account at any time. If Company's Account is a fixed-rate account and it is not a time account, Company will be paid the specified intetest fate for at least thirty (30) days. Method Used to Calculate Earned Interest. Bank may use either the average daily balance or daily balance method to calculate interest. The average daily balance method applies a periodic rate to the average daily collected balance for the period. The average daily balance is calculated by adding principal for each day and dividing by the number.of days in the period. The daily balance method applies a daily periodic rate to principal each day. Unless Bank has specified otherwise in writing, it will use the daily balance method to calculate interest. If Company's Account is a tiered.rate account, Bank may pay the same interest rate on more than one tier. Interest Accrual. If Company deposits a non.cash Item, such as a check, interest begins to accrue no later than the Business Day Bank receives credit for the deposit of that Item. This may not be the same day that Company deposits the non-cash Item to Company's Account. 21 e e e Compounding and Crediting. Interest will compound on a daily basis. For checking and savings accounts, interest will be credited Dn a monthly basis. For time accounts, Bank will notify Company separately as to the. frequency with which interest will be credited to Company's Account. T aeget Balance Accounts. If Company maintains multiple accounts at Bank, Company may, with Bank's consent, designate in writing one such account as its "Principal Account" and one or more additional accounts a5 "Target Balance Accounts." For each Target Balance Account, Company will separately specify to Bank in wtiting the Ledger Balance Ot Collected Balance which Company wishes to maintain in such account (the "Target Balance"). At the end of each Business Day, Bank will determine the applicable balance on deposit in each Target Balance Account. If the applicable balance in a Targer Balance Account exceeds its Target Balance, Bank will transfer from the Target Balance Account to the Principal Account such funds as are necessary to bring the applicable balance to the Target Balance. If the applicable balance is less than the Target Balance, Bank will transfer from the Principal Account to the Target Balance Account such funds as are necessary to bring the applicable balance to the Target Balance. Bank ma~ but will not be required to, transfer funds if the transfer would create an Overdtaft or exceed the Collected Balance then on deposit in the Principal Account. Interest Adjustments. An intereS[ adjustment may be reflected on the statement for Company's Account for the month after it occurs rather than the month in which it occurs. Tax Identification Number Certi6canon. In most instances, Treasury regulations require Bank to obtain a Tax Identification Number ("TIN") for each account. To avoid backup withholding tax on accounts that earn interest or dividends, Company must submit Internal Revenue Service ("IRS") Form W-9 at Form W.8BEN to Bank. U.S. citizens or other U.S. penons, including resident alien individuals, must provide a Form W-9. If Company is a non-resident alien, Company must provide a Form W-8BEN. Other additional forms may be required if Company is a foreign parmership, foreign government, or is claiming an exemption based on Effectively Connected Income. Until Bank has received the completed and signed Fotm(s) W-9 Ot W-8BEN, Bank may either not pay interest or pay interest and comply with the backup withholding requirements of the IRS. If Company's Account is an interest-bearing checking or savings account, it will begin earning interest at the rate in effect on the date Bank receives Company's .Form(s) W-9 or W.SBEN. If Company's Account is a time account, it will earn interest at the rate in effect on the date opened or the date of last maturi~ whichever is later. If, at any time, Bank receives information which indicates that someone other than Company is using the same TIN that Company certi6ed as its TIN on Form W-9, and Bank is not able to determine to its own satisfaction that the TIN has been assigned:to Company, Bank may at its option and without notice (i) stop paying interest on Company's Account, (ii) continue paying interest but comply with the backup withholding requirements oE the IRS and/or, {Hi} take any other action which Bank believes is reasonable in the circumstances. If Company is an individual who owns its Account as a sole proprietor, upon that individual's death, Bank must be provided with the individual's estate's or successor's TIN or Bank may either refuse to pay interest earned on Company's Account since the date of the individual's death or withhold a porrion of the interest that has been earned on Company's Account since the date of the individual's death. Commercial Savings Accounts Bank's Right to Require Notice. Bank has the right to require seven (7) days' written notice before Company withdraws money from Company's savings Account. limitations on Transfers from Company's Savings Account. Preauthorized transfers, automatic transfets, online transfers, payments to other persons, and transfers by telephone from Company's savings Account are limited to six (6) a month. 22 e e Preauthorized transfers include automatic bill payments, transfers to Company's other Accounu with Bank, or auromatic transfers to other persons that Company has authorized Bank to make. If Bank permits transfers from Company's savings Account by check, draft, point of sale P~S purchases, check card or any similar order foe withdrawal, no more than three (3) of the six {6} transfers may be made by such means in a calendar month or statement cycle. If Bank determines rhar Company is exceeding the limits described above on more than an occasional basis, Bank will, at its option, either close Company's savings Account, transfer the funds on deposit in Company's Account to another account that Company is eligible to maintain, or terminate Company's right to make transfers and write Items against Company's savings Account. Commercial Time Accounts e General. Commercial Time ("time") Accounts include deposits which are payable, either on a specified date or at the expiration of a specified time, no less than seven (7) calendar days after the date of deposit. Bank may refer to a time account as a "certificate of deposit" or 'a "CD," even though the time account is not represented by a certificate. Certificated Time Accounts. If Company receives a certificate evidencing Company's time Account, Bank may require Company to present the certificate and any amendments to receive payment or transfer ownership. Maturity Date. Company's time Account will mature at the end of the term stated on Company's receipt, disclosure or certificate, as applicable. Time Requirements. Company agrees to keep Company's funds on deposit untiJ the maturity date. Company may make withdrawals from Company's time Account on. the marurity date or within the grace period after that date. Bank will not agree in advance to allow withdrawal before marurity. Payment of Interest. If Company has elected a payment of interest other than a c~dit to Company's time Account, Bank may in its sole discretion terminate it in favor of crediting Company's time Account. Ordinarily, such discretion will be exercised when an interest payment mailed to COl11pany's Account address has been returned undelivered or when an Account to which Company's interest payments were automatically credited has been dosed, or if the interest payment amount is less than any minimum amount disclosed in the fee and information schedule. Additional Deposits. Other than during the grace period, Company' may not make additional deposits to Company's time Account, unless Bank otherwise agrees in writing. Withdrawal of Interest Prior to Maturity. A withdrawal of interest prior to maturity will reduce earnings. Renewal Policies. If Company's time Account is autOmatically renewable, at marurity it will renew (i) for a like term; and (ii) at Bank's inrerest rare in effect on the marurity date for a new time deposir of the same term and amount, unless Bank has notified Company rhat it will not renew Company's Account. Company may withdraw Company's funds anytime during the grace period without a fee. If Company does, Bank will not pay interest for that period on the funds withdrawn. If Compan}"s time Account is not automatically renewable and Company does not withdraw the funds on the maturity date, the funds will no longer earninrerest after the maturity date and will be placed in a non-interest-bearing checking Account. 2J e e e III. Funds Transfers General. Funds transfers to or from Company's Account will be governed by the rules of any funds transfer system through which the transfers are made, as amended ~m time to time, including. without limitation, the National Automated Clearing House Association and any regional association (each, an "ACH") and Clearing House Interbank Payments System ("CHIPS"). The following terms arc in addition to, and not in place of, any other agreements berwcen Company and Bank regarding funds transfers. Notice of Receipt of Funds. Unless Bank has otherwise agreed in writing, it will notify Company of funds electronically debited or credited to Company's Account through the statement for Company's Account covering the period in which the transaction occurred. Bank is under no obligation to provide Company with any additional notice or receipr. Reliance on Identi6cation Numbers. If a transfer instruction describes the person to receive payment inconsistently by name and account number, payment may be made on the basis of the account number even if the account number identifies a person different from the named person. If a transfer instruction describes a participating financial institution inconsistently by name and identification numbet the identification number may be relied upon as the proper identification of the financial institution. Duty to Repon Unauthorized and Erroneous Fund T canslers. Company agrees to exercise ordinary care to determine whether a fund transfer to or from Company's Account was either erroneous or not authorized and will notify Bank of the facts within a reasonable time nOt exceeding founeen (14) days after Bank sends or makes available to Company the statement for Company's Account on which the transfer appears or Company otherwise has notice of the transfer, whichever is earlier. Company will be preduded from asserting that Bank is not entitled to retain payment unless Company objects to payment within the fourteen (14) day period. Erroneous Payment Orders. Bank has no obligation to detect errors in payment orders (for example, an erroneous instruction to pay a beneficiary not intended by Company or to pay an amount greater than the amount intended by Company, or an erroneo;us transmission of a duplicate payment order previously sent by Company). Should Bank detect an error on one or more occasions, it shall not be construed as obligating Bank to detect errors in any future payment order. Automated Clearing House (ACH) Transactions. The foHowing terms apply to payments to or from Company's Account that are transmitted through an ACH, Company's rightS as to payments to or from Company's Account will be governed by the laws that g~rn Company's Account. Credit given by a receiving bank to its customer for a payment from Company's Account is prpvisional until nnal settlement has been made or until payment is considered received under the laws that govern Company's Account. If 6nal settlement or payment is not made or received, the receiving bank will be entitled to a refund from its customer and Company, as the originator of the payment will not be considered to have paid Company's customer. If a payment is made to Company's Account and Bank does not receive nnal settlement or payment is not received under the laws governing CompanY's Account, Company will not be considered to have received payment, and Bank will be entitled to reimbursement from Company for that payment. Company hereby authorizes any Originating Depositary Financial Institution (ODFI) to initiate, pursuant to ACH Operating Rules, ACH debit entries to Company's Account for electronic presentment or re.presentment of Items written or authorized by Company: 24 e e e IV. Selected Services A TM Deposit Service. Company may elect to utilize Bank's ATM Deposit Service by completing and returning to Bank an A TM Deposit Service Setup Form. This Service allows Company to make deposits to Company's Account using a Tteasury Exp.... Deposi.. card ("Deposit Card") and a designated Wells Fuga. ATM ("ATM"). Company shall make such deposits accotding '0 the instructions Bank provides and shall gain access to the ATM using the Deposit Card and a Pmonallden,ification Numbe, ("PIN"), the risk of misuse of both of which Company assumes. Bank will provisionally credit each deposit to Company's Account based on the amount Company keys into the ATM. Company will receive same.-day availabiliry for cash subject to the standard cut-off time established for the ATM into which the deposit was made and Bank's funds availability policy applicable '0 Company's Accoun,. If the dalla, amoun' of Company's deposit as determined by Bank differs from Company's total (as shown on Company's ATM receipt), Bank will send Company a statement showing the amount of this difference. Company agrees Bank's count of the dollar amount of Company's deposit will be conclusive and binding on Company. Company will have full responsibility for each deposit and its contents until the deposit has heen completely and physically accepted into the ATM. If Company claims any portion of a deposit was lost or stolen while in Bank's custody, Company acknowledges Company has the burden of proving its claim. If Company orders supplies for the ATM Deposit Service through the ATM, Company authorizes Bank to initiate debits to Company's Account and credilS to the accounts of third parry vendors to cover the cost of such supplies provided to Company. Such .transfers may be processed through an automated clearing house or any other means chosen by Bank and will be subject to the rules of the funds transfer system used by Bank. Company's authorization will remain in full force and effect until Bank has received written notification from Company of its termination in such time and manner as to afford Bank and any third party vendor a reasonable opportunity to act on it. Treasury Express DepositS Service. If Company elects to utilize Bank's Treasury Express Deposit ("TED") Service, Company will prepare, package and deliver TED deposits to Bank in accordance with Bank's instructions. Bank will provisionally c~dit Company's Account for the currency shown on the deposit ticke, enclosed in Company's TED bag as follows: (i) same day credi, for deposits delivered '0 an office of Bank before that office's c:ut.off .time on any Business Day or for deposits placed in night depository of Bank before 6:00 a.m. on any Business DaYi or (ii) next Business Day credit for deposits delivered to an office of Bank on any Business Dayan or after Bank's office's cut-off time or on any non-Business Day. All TED deposits are subject to Bank's acceptance and verification. Bank will verify the currency in Company's TED bag either at a later time in Bank's office or when Company's TED bag is delivered [0 Bank's cash vault. Checks will be verified when they are delivered to Bank's check. processing center. Bank. reserves the right to adjust (debit or credit) Company's Account if Bank dcrermines that the . amount shown on Company's deposit ticket is incorrect. Because the frequency of armored courier transportation from Bank's offices to Bank's vaults "Varies from office to office, the time it takes to verify Company's TED deposit may vary, depending on the office to which Company's TED bag is delivered. In most cases, adjusrments will be made and noti6cation will be sent within three (3) Business Days. Adjustments will be effective when they are processed. 25 e e e 02005 Wells Fargo Bank, :<:.A. Wells Fargo' Bank Northwest, N.A. All rights reserved. Members FDIC e II COM1416 (5105) e e e COMMERCIAL ELECTRONIC OFFICcSM ("CEO") SERVICE DESCRIPTION . 1. Description ofthe CEO Service. The CEO Service will allow Company to enter Bank's CEO website and access those treasury management services offered through the CEO (each, a "Service") for which Company has enrolled. Company agrees to use the CEO only as provided in the Service Documentation (which term includes notices and information posted on the CEO website.) Persons entering the CEO for Company (the "Usersj must also accept the Terms of Use for the CEO which appears on the CEO when a User initially logs on. Before Company may use a Service, Company must sign or accept the Service Documentation for that Service. Security Procedures. 2.1 Unless Company requests self-administration of its access to the CEO, Bank will give each User an ID code and a password to be used when the User first enters the CEO. (Self-administration may not be available for all services offered through the CEO.) Bank will also assign a Company ID code for use each time a User enters the CEO. Although the Company 10 code and the 10 codes for each User will remain the same for each entry into the CEO, the password Bank assigns to each User must be changed to a new password the User selects when the User first enters the CEO. Bank will not know the new passwords or any subsequent passwords selected by the Users. 2.2 If Company requests self-administration of its access to the CEO, Bank will assign a Company 10 code and will set up the first Company administrator ("FCA") by assigning a personal 10 code and password to be used when the FCA first enters the CEO. The FCA can then set up additional Company administrators (who will have access to all Services Company receives through the CEO) and administrators or Users (each of whom will have access only to the speCific Service(s) they are set up to access.) Any Company administrator: (a) can set up additional Company administrators, administrators and Users, issuing them a password and a personallD code; (b) can reset passwords for all Services; and (c) shall be required to immediately disable access to the CEO for any Company administrator, administrator or User who ceases to be a Company administrator, administrator or User. Administrators can set up additional administrators and Users and reset passwords for the specific Servlce(s) they are set up to access. The CompanylD and each personal ID code will remain the same for each entry into the CEO, but the . password assigned to each Company administrator, administrator, and User must be changed to a new password they select when they first enter the CEO. Bank will not know the password of any Company administrator, administrator, or User except the initial password assigned to the FCA. Company's administrative contact with respect to the CEO will be the FCA. 2.3 If Company requests self-administration of Company's access to the CEO, Bank will give the Company administrators and the administrators a token card and a personal identification number ("PIN"), known only by them and Bank, to use each time they give personal 10 codes and passwords to Company administrators, administrators, and Users. Token cards and PINs will be given to Users by Bank only if they have access to a Service which requires a token card for access. The token card generates a random and unique security code for each token card every minute. The code combines with the PIN to provide a unique password (the "Passcode") every minute. 2.4 Company will be able to manage and control who in Company has access to the CEO and the Services by the 10 codes, passwords, token cards, PINs, and Passcodes. It is Company's responsibility to ensure that the ID codes, passwords, token cards, PINs, and Passcodes are known to, and used only by, persons who have been properly authorized by Company to access the CEO and use the Services through the CEO. 2. TM-'426 Commercial Electronic Office Service Oescription (Rev. 9/02 ) Page' of3 A.4 e e e 2.5 FAILURE TO PROTECT 10 CODES, PASSWORDS, TOKEN CARDS, PiNs, OR PASSCODES MAY ALLOW AN UNAUTHORIZED PARTY TO (1) USE THE SERVICES, (2) CORRECT, CHANGE, VERIFY, OR SEND DATA USED WITH THE SERVICES, (3) SEND INFORMATION AND COMMUNICATIONS TO, OR RECEIVE INFORMATION AND COMMUNICATIONS FROM, BANK OR (4). ACCESS COMPANY'S ELECTRONIC COMMUNICATIONS AND FINANCIAL DATA.. ALL ENTRIES INTO THE CEO, ALL COMMUNICATIONS SENT, AND ALL USES OF THE SERVICES, THROUGH COMPANY'S 10 CODES, PASSWORDS, TOKEN CARDS, PINs, OR PASSCODES WILL BE DEEMED TO BE ENTRIES, COMMUNICATIONS; AND USES AUTHORIZED BY COMPANY AND BE BINDING UPON COMPANY. COMPANY ASSUMES THE ENTIRE RISK FOR THE FRAUDULENT OR UNAUTHORIZED USE OF ALL 10 CODES, PASSWORDS, TOKEN CARDS, PiNs, AND PASSCODES. Company acknowledges the importance of developing internal procedures to limit such risk, which procedures will include, at a minimum, (a) if Company is not on self-administration, notifying Bank immediately when any new person becomes a User or when any existing User stops being a User, (b) if Company is on self- administration, disabling access to the CEO immediately for each Company administrator, administrator, and User who stops bein\! a Company administrator, administrator, or User, and (c) not keeping, in any form or In any place, lists of 10 codes, passwords, PINs or Passcodes. 2.6 Company agrees to notify Bank immediately when Company becomes aware of any loss . or theft of. or any unauthorized use of, any 10 codes, passwords, token cards, Pins, or Passcodes. Company also agrees to n.otify Bank immediately when Company becomes aware of any unauthorized entry into the CEO. 3. Financial Information. Financial market data, quotes, news, research, and other financial information developed by third parties and transmitted to Bank (collectively, "Rnancial Information'') will be available at the CEO. The posting of any Financial Information or any other information or data at the CEO will not be a recommendation by Bank that any particular Service or transaction is suitable or appropriate for Company or that Company should receive or in any way use any Service. Bank does not guarantee the accuracy, completeness, timeliness or correct sequencing of any Financial Information, nor is it in any way responsible for the actions or omissions of the third parties developing or transmitting Financial Information or for any decision made or action taken by Company in reliance upon any Finariciallnformation. 4. Use of Certain Software to Access the CEO. In using the CEO, Company will be sending financial and other data as well as electrOniC messages directly to 'Bank through the Internet. Company acknowledges that when the Intemet, or any other electronic communications .facilities, are used to transmit or receive data and messages, the data and the messages may be accessed by unauthorized third parties. To reduce the likelihood of such third party access, Company agrees to transmit and receive data and messages through the CEO using only software, including, but not limited to, browser software. or other access devices that support the Secure Socket Layer (SSL) protocol- or other protocols required by, or acceptable to, Bank, and to follow the Bank log-on procedures that support such protocols. 5. Disclaimer;>. Bank will not be Company's advisor or fiduciary with respect to this Agreement or any Service. . 6. limitation of Liabilitv. Bank will not be liable to Company for any direct or indirect damages or losses .suffered or. incurred by Company in connection with the GEO, any of the Services, any FI~anclallnformatlon, any other information or data Company receives through the CEO, or any failure tc? prOVide, or delay in providing, access to the CEO. any Service, or any Financial Information. except to the extent any Service Documentation specifically provides otherwise and except to the extent such damages or losses arise directly from the negligence or willful misconduct of Bank. TM-1426 Commercial Electronic Office Service Description (Rev. 9102 ). . Page 2 of3 e e e 7. Restricting or Tenninatina Access to the CEO. In addition to, and not in substitution for, any provision In this Agreement or any of the other Service Documentation, Company understands and agrees that Bank will not in any way be obligated to permit Users access to any Financial Information or the use of any Service through the CEO if (a) such use or access is not in accordance with any term or condition applicable to the Service or the CEO or to the information to be accessed, (b) such use or access is not permitted by any state or federal law or regulation, (c) Bank has reasonable cause to believe that such use or access may not be authorized by Company or any third person whose authorization Bank believes is necessary for such use or access, or (d) Bank has reasonable cause to deny such use or access for Company's protection or the protection of Bank. If any Service cannot be used through the CEO, Bank will make reasonable efforts for such Service to be used by other means. Bank shall not have liability to Company for any losses or damages Company may suffer or incur as a result of any such termination. 8. Survival. Sections 3,6,7 and 8 will survive termination of the Service. 9. Terminoloav. Unless specifically defined in this Service Description, capitalized terms used in this Service Description have the meanings, if any, provided in the Master Agreement for Treasury Management Services (the "Agreement"), as amended from time to time. TM-1426 Commercial Electronic Office Service Description (Rev. 9/02) Page 3013 Cash Letter Service Description . e 1. Description of Service. The Cash Letter Service (the "Service") is provided to corporate and commercial customers and correspondent banks which deposit large volumes of checks. 2. Presentation and Deposit. Company may present cash letters (" Cash Letters") to Bank which contain pre- encoded. and properly endorsed U.S. dollar checks drawn on Bank or another domestic financial institution (" Checks"), and which conform to all applicable requirements imposed by the Federal Reserve Banks or contained in Bank's Cash Letter User Guide. Bank will deposit the aggregate amount of Checks contained in a Cash Letter into Company's account with Bank designated in such Cash Letter in accordance with the provisions of the account agreement governing the account. 3. Encoding Responsibilities. Company is responsible for accurately encoding the dollar amount on each Check presented with a Cash Letter. The dollar amount and applicable paying bank or nonbank payor rout- ing number must be printed on each Check in Magnetic Ink Character Recognition ("MICR") numbers. The form, content and placement of this MICR printing must conform to all applicable technical standards established by the American National Standards Institute and the American Bankers Association ("Industry Standards" ). e 4. Service Charges and Collected Funds Availability for Reject Items. Checks contained in Cash Letters' which are rejected by Bank's processing equipment because they have not been encoded in accordance with Industry Standards, or which require repair and/or reentry (" Reject Items"), are subject to a per-Check service charge. The service charge is assessed for those Reject Items exceeding one percent (1.0%) of the total volume of items deposited in an individual Cash Letter. In addition, all Reject Items will be made avail- able as collected funds one Business Day after they otherwise would have been made available under the applicable collected funds schedule. S. liability; Indemnification. In addition to the limitation of liability and indemnification provisions set forth in the Agreement, Bank will not be liabl~ for, and Company will indemnify and hold Bank, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments and expenses paid or suffered or incurred by any such indemnified party arising directly or indirectly as a result of or in connection with: (i) Bank's processing of photocopies of Checks from a Cash Letter, (ii) Bank's return unpaid of any Check in a Cash Letter, (iii) Bank's not notifying Company of any returned Check that is represented and then paid as provided in the Cash Letter User Guide, (iv) the late reclamation of any returned Check caused by Bank's depositing the Check more than once in accordance with the Cash Letter User Guide, (v) the late teclamation of any Check caused by the delay of anothet bank or financial institution, (vi) Company's failure to accurately encode any Check in accordance with the requirements of Section 3 of this Service Description, or (vii) any breach by Bank of encoding warranties under the Uniform Commercial Code which is attributable to Company's failure to accurately encode any Check. Company acknowledges that this indemnification shall survive termination of this Service. e Cash Lener Service Description - Revised 2/1S/2CY 02_F"90_..rights......... " .:T.~'~~..- '"" A-S e e e ACCOUNT RECONCILIATION PLAN SERVICE SERVICE DESCRIPTION II 1. Introduction. This Service Description and the other Service Documentation as defined in the Master Agreement for Treasury Management Services between Wells Fargo Bank, N.A. ("Bank"), and the company identified in the Acceptance of Services ("Company") between Bank and Company govern Bank's Account Reconciliation Plan ("ARP") Services (each, a "Service"). 2. Description of Services. Bank's ARP Services (a) store information about Items Company issues on demand deposit accounts that Company enrolls in the Services (each, an "Account"); and (b) process the information in accordance with the Service option{s) that Company elects during the set up process for the Services and from time to time thereafter. Bank's User Guide for the Services details the Service options. "Item" is defined in Bank's Commercial Account Agreement. 3. Conditions to Provision of Services. As conditions to Bank's provision of the Services, Company shall (a) maintain Company's Account{s) in good standing; (b) complete Bank's set-up process for the Services; and (c) in the case of Services requiring use of Bank's Commercial Electronic Office~ ("CE~), subscribe to Bank's CEO. 4. Bank's Obligations. Bank will provide the S~rvices in accordance with Bank's User Guide for the Services and the Service Options Company selects from time to tim~ . 5. Company's Obligations. If Company elects Bank's full ARP Service, Company will provide Bank with the issue date, serial number and dollar amount of each Item Company issues on the Account (the "issued check information") using the communication channel(s) Company elects. If Company elects Bank's Deposit Location Reporting Service, 'Company will provide Bank with a list of its location numbers and names and may amend the list from time to time by notifying Bank in writing. 6. Stop Payment Orders. If Company uses the Service to place a stop payment order on any Item, Company understands that (a) Bank's Commercial Account Agreement governs the stop payment order; (b) each stop payment order is subject to Bank's verification that the Item described in the stop payment order has not been paid; and (c) this verification may occur a minimum of ninety (90) minutes after the time Company transmits the stop payment order to Bank. TM-1408 Account Reconciliation Plan Service Description Revised 04-17.()7 Page.lofl A-6 e e e ACH ORIGINATION SERVICES SERVICE DESCRIPTION WELLS FARGO 1. Introduction. This Service Description together with the other Service Documentation as defined in the Master Agreement for Treasury Management Services ("Master Agreemenr) between Wells Fargo Bank, N. A. ("Bank"), and the company identified in the signature block of this Service Description ("Company") govern Bank's ACH Origination Services ("Services") and Company's ACH security procedure election(s). Description of Services. Bank's Services enable Company to originate automated clearing house ("ACH") credit and debit entries (each, an "Entry") in accordance with the National Automated Clearing House Association Operating Rules (the "ACH Rules"). Company shall maintain one or more deposit account(s) at Bank or Bank's affiliate (each, an "Accounr), which Bank may use to process such Entries. Company will transmit Entries to Bank using a data file or batch release (each, a "File") through the communications channel(s) to. which Bank and Company separately agree in writing. Bank will verify that Company has authorized, canceled or amended a File or Entry solely by means of the security procedure(s) Company has elected in this Service Description (each, the "Security Procedure"). When Bank acts with respect to an Entry as both the originating depository financial institution ("ODFI") and receiving depository financial institution ("RDFI"), as ODFI and RDFI are defined by the ACH Rules, the Entry is an "on-us Entry" 2. 3. Conditions to Provision of Services. As conditions to Bank's provision of the Services. Company shall (a) comply with the ACH Rules in effect from time to time and any applicable local ACH rules; (b) maintain Company's Account(s) in good standing; (c) complete Bank's set- up process for the Services; (d) in the case of Services requiring use of Bank's Commercial Electronic Office- ("CEoe-), subscribe to Bank's CEO and (e) comply with such requirements regarding hardware and software as Bank may from time to time communicate to Company. Company acknowledges that Entries may not be originated that violate the laws or regulations of the United States including without limitation the regulations issued by the Office of Foreign Assets Control. Company acknowledges that Bank has provided Company with a copy of the ACH Rules as of the date of this Service Description and that Company is responsible for obtaining and complying with any amendments to the ACH Rules. 4. Preparation of Entries and Flies: Processing Schedules. Company shall prepare each File in accordance with the ACH Rules and Bank's Reference Guide for the Service. Bank will process each File in accordance with Bank's then current processing schedule and any instructions regarding the date an Entry is to be settled that Company furnishes with the Entry provided (a) Bank receives the File by Bank's applicable cutoff time on a Business Day (as defined in Bank's Commercial Account Agreement) and (b) the ACH is open for business. Files, will be deemed received by Bank when the transmission of the File to Bank is completed and authenticated in compliance with the Security Procedure. If Bank receives a File after Bank's applicable cutoff time or on a day when the ACH is not open for business, the File will be treated as having been received prior to Bank's applicable cutoff time on' the next Business Day on which the ACH is open for business. Any transaction TYPE (debit or credit) or SEC (standard entry class) as defined in the ACH rules may, at Bank's option, be conditioned upon Bank's prior approval. Upon notice to Company, Bank may modify the TYPE and SEC of transactions Bank will process for Company. ACH Origination Services (TM-1423) Revised 03-15-07 Page 1 of7 A-7 e e e 5. InconsIstency of Name and Number. If an Entry describes a receiver both by name and identifying number, the RDFI may pay the Entry on the basis of the identifying num~er, even if the number identifies a person different from the named receiver. If an Entry descnbes the RDFI both by name and identifying number, Bank. a gateway operator or another financial institution handling the Entry may rely on the identifying number to identify the RDFI, even if the identifying number refers to an institution other than the named RDFI. 6. Company's Payment Obligations. As of the applicable settlement date, Company shall maintain available funds in each Account sufficient to cover the credit Entries originated against that Account. If requested by Bank, Company shall maintain such available funds in the Account(s) prior to Bank's delivering the Entries to the ACH or gateway operator or Bank's posting an on-us Entry. If Company fails to comply with such request, Bank may refuse to send the Entries to the ACH or gateway operator or to post an on-us Entry. Upon notice to Company, Bank may place a hold on funds in any account at Bank or any affiliate of Bank that Company owns in whole or in part sufficient to cover Company's credit Entries. Bank may take such other acti,ons as it deems necessary or appropriate to ensure that Bank receives payment for Company's credit Entries. Company's obligation to pay Bank for each credit Entry matures at the time Bank transmits or otherwise delivers the credit Entry to the ACH or gateway operator or posts an on-us Entry. Bank may debit an Account for credit Entries originated from that Account on the applicable settlement date or at an earlier time upon notice to Company. Bank may, where applicable, debit an Account for any correcting or reversing Entry originated by Company. If there are insufficient funds in the applicable Account to cover such correcting or reversing Entry, Bank may debit any other account(s) Company owns in whole or in part at Bank or any affiliate of Bank. Provisional Credit. A credit to Company's Account for an Entry is provisional until Bank receives final settlement for the Entry. If Bank does not receive final settlement, Bank is entitled to debit Company's Account or any other accounts Company owns in whole or in part at Bank or any affiliate of Bank for the amount of the Entry. Company shall pay any shortfall remaining after such debit to Bank immediately upon demand. 8. Rejected Entries. Bank may reject an Entry or File if Company fails to comply with the terms of this Service Description. If Bank rejects an Entry or File, Bank will attempt to notify Company promptly so that Company may cure the defect. Bank's notice of its rejection of an Entry or File will be effective when given. Bank will have no liability to Company for rejecting an Entry or File, not giving notice at an earlier time than the time provided for in this Service Description, or any loss resulting from Bank's failure to provide notice. If Company requests that Bank repair an Entry or File and Bank endeavors to do so, Bank shall not be liable for Bank's failure to make the requested repair. Company will pay ail charges and expenses Bank Incurs in connection with any repair. 7. 9. Cancellation, Amendment, Reversal. Company has no right to cancel, amend or reverse an Entry or File after its receipt by Bank. If Company requests that Bank cancel, amend or reverse an Entry or File, Bank may, at its sole discretion, attempt to honor such request. Bank will have' no liability for its failure to give effect to Company's request. Company will reimburse Bank for any expenses, losses or damages Bank incurs in effecting or attempting to effect Company's request. 10. Returned Entries. Bank will have no obligation to re-transmit a retumed Entry or File to the ACH or gateway operator, or to take any further action with respect to a returned on-us Entry, if Bank complied with the terms of this Service Description with respect to the original Entry or File. Company shail reimburse Bank for any returned debit Entries on the same day that Company receives notice of such returned Entry. ACH Origination Services (TM-1423) Revised 03-15-07 Page 20f7 e e 15. e 11. 12. 13. Reconstruction of Entries and Flies. Company will retain sufficient records to permit it to reconstruct each Entry and File it delivers to Bank for a period of five (5) Business Days after the applicable settlement date and will submit the reconstructed Entry or File to Bank upon request. Audit. Company grants Bank ongoing access to Company's Files and the right to audit periodically such Files and Company's ACH processes and controls so that Bank can verify Company's,compliance with this Service Description. Bank's Internal Risk Parameters. Bank establishes intemal risk parameters to identify out-of- pattem or suspect transactions and protect Company and Bank from potential losses. These parameters may include without limitation limits on debit and credit settlements on a single Business Day and/or over multiple consecutive Business' Days. Bank reserves the right to pend or delete a transaction, batch, or File in forward origination exceeding the applicable parameters as Bank would if Bank had reason to believe same had not been duly authorized or should not be honored for Company's or Bank's protection. 14. Company's Agents. Company will certify to Bank the identity of any person Company has authorized to act as its agent with respect to the Services. Any such person is authorized to, without limitation, originate, receive, retum, adjust, correct, cancel, amend and transmit Entries and Files on Company's behalf and elect the security procedure used to authenticate Company's Entries and Files. Bank shall be able to conclusively presume that such agency continues until Bank receives, and has a reasonable opportunity to act on, written notice to the contrary. Bank may rely on instructions received from such persons and need not make any inquiries to confirm that the instructions are within the scope of the agency. Currency Conversion. 15.1. With respect to credit Entries Bank agrees to originate in the currency of a designated foreign govemment or intergovemmental organization ("Foreign Currency"), Bank will convert the amount to be transferred from U.S. dollars ("USO") to the Foreign Currency at Bank's sell rate for exchange in effect on the Business Oay the ,Entry is transmitted by Bank to the ACH or gateway operator. If the financial institution designated to receive the funds does not pay the receiver specified in the Entry, or if the Entry is subsequently' determined to be erroneous, Bank will not be liable for a sum in excess of the amount of the original Entry after it has been converted from the Foreign Currency to USO at Bank's buy rate for exchange at the time the Entry is retumed to Bank. 15.2. With respect to debit Entries Bank agrees to originate in a Foreign Currency, Bank will convert the amount of each Entry from the Foreign Currency to U.S. Oollars at Bank's buy rate for exchange in effect on the settlement date of the Entry. If the financial institution designated to receive the Entry subsequently retums it, Bank may charge the applicable Account (or any other accounts Company owns in whole or in part at BaDk or . any affiliate of Bank) for the amount equal to the value of the returned Entry, after Bank has converted the Foreign Currency to USO at Bank's sell rate for exchange at the time the Entry is retumed to Bank. Bank will not be liable for a sum in excess of the original amount of the Entry after conversion. 15.3. Bank will not be liable for any failure or delay by a gateway operator, any interrnEidiary financial institution, or the financial institution designated to receive the Entry in the designated foreign country in processing or failing to process any Entry Bank transmits ACH Origination Services (TM-1423) Revised 03-15-07 Page 3 ot7 e 16. to the foreign country, or for acts or omissions by a third party including without limitation the delay or failure of any third party to process, credit or debit any Entry. Third-Party Sender Activities. If Company is a Third-Party Sender, as defined by the ACH Rules, this Section shall apply to Company's use of Bank's Services. 16.1. Prior to originating any Entry on behalf of a customer of Company, Company shall (a) notify Bank in writing of any other financial institution Company is using to originate transactions as a Third-Party Sender and thereafter notify Bank before Company adds any new financial institution for this purpose; (b) provide Bank with the information that Bank determines Bank requires to enable Bank to understand the nature of Company's customer's business including without limitation the name, Taxpayer Identification Number, business activity and geographic location of Company's customer, (c) if specifically required by Bank, obtain Bank's written approval to initiate or continue to initiate Entries for that customer, which approval Bank may rescind upon written notice to Company; and (d) enter into a written agreement with that customer whereby that customer agrees: 16.1.1. to assume the responsibilities of an originator under the ACH Rules and to be bound by the ACH Rules as in effect from time to time; 16.1.2. entries may not be initiated in violation of the laws or regulations of the United States including without limitation the regulations issued by the Office of Foreign Assets Control; 16.1.3. to grant Bank ongoing access to audit it and any ACH file that it has transmitted to Company for transmission to Bank; and e 16.1.4. Bank may at any time refuse to process an entry for that customer. 16.2. Company represents and warrants to Bank that Company (a) has conducted due diligence with respect to each customer of Company for which Company is originating transactions through Bank and determined that each such customer is engaged in a legitimate business and that the type, size and frequency of transactions that each such customer is originating is normal and expected for the customer's type of business; and (b) will, in accordance with reasonable commercial standards, monitor each customer's business and transactions on an ongoing basis and notify Bank immediately if Company identifies any unusual activity by Company's customer. 17. Perfect NOe Service. If Company subscribes to Bank's Perfect NOC Service, this Section will apply. Bank maintains a database of Notifications of Change (each, a "NOC") that Bank receives and uses this database to update Company's Entries in accordance with the Service options Company selects from time to time. Bank will notify Company of each NOC that Bank receives in connection with Company's Entries. 18. Warranties. Company acknowledges that under the ACH Rules, Bank makes certain warranties with respect to each Entry. Company agrees to reimburse Bank for any loss Bank incurs, including Bank's reasonable attomeys' fees and legal expenses, as the result of a breach of a warranty made by Bank in connection with any Entry Bank originates upon the instructions received from Company, except to the extent that the loss resulted from Bank's own gross negligence or intentional misconduct. e ACH Origination Services (TM-1423) Revised 03-15-07 Page 4 of7 e e e 19. Indemnification. Company acknowledges that under the ACH Rules, Bank indemnifies certain persons. Company agrees to reimburse Bank for any loss Bank incurs, including its reasonable attomeys' fees and legal expenses, as the result of the enforcement of any such indemnity. except to the extent that the loss resulted solely from Bank's own gross negligence or intentional misconduct. 20. Termination. In addition to the termination provisions contained in the Master Agreement, Bank may terminate the Services immediately upon notice to Company if Bank determines in its sole discretion that: (a) the number of retumed debit Entries originated under this Service Description is excessive; or (b) Company has breached a warranty provided under the ACH Rules or otherwise failed to comply with the ACH Rules. 21. Survival. Sections 5, 6, 7,15,16,18,19,20,21 and 22 survive termination of the Services. 22. Description and Election of Security Procedure. The purpose of the Security Procedure is to verify the authenticity of an Entry or File, not to detect an erroneous or duplicate Entry or File. Company shall be responsible for any erroneous or duplicate Entry or File issued to Bank in Company's name. 22.1. Commercially Reasonable. Company has determined that the Security Procedure . Company has elected best meets Company's requirements with regard to the size. tyPe and frequency of the Entries and Files issued by Company to Bank and that the Security Procedure is commercially reasonable. Company refuses to have its Entries and Files verified by any security procedure other than the Security Procedure Company has elected in this Service Description. 22.2. Binding Instructions. Company agrees to be bound by each Entry and File, or request to cancel or amend an Entry or File, whether or not authorized by Company, that is issued in Company's name and accepted by Bank in compliance with the Security Procedure. 22.3. Confidentiality. Company and Bank will preserve the confidentiality of the Security Procedure, and any passwords, codes, security devices and related instructions provided by Bank. If Company becomes aware of a breach, or suspects that a breach may occur, it will immediately notify Bank in a manner affording Bank a reasonable opportunity to act on Company's notification. 22.4. Authorized Person(s). Company will promptly notify Bank in writing of the identity of each person authorized t? receive information regarding the Security Procedure (each. an "Authorized Person") and when a person is no longer an Authorized Person, affording Bank in each instance a reasonable opportunity to act on Company's notification. Company will establish and maintain effective intemal procedures to safeguard against unauthorized Entries and Files. Company warrants that no individual will be allowed to initiate an Entry or File without proper supervision and safeguards. ACH Origination Services (TM-1423) Revised 03-15-07 Page 5 017 e e e 22.5. Election of Security Procedure. The Security Procedure Company has elected is: File TransDort Security Procedure - Slnale-Factor Authentication. Secure File Transport is Bank's suite of secure Intemet protocol transmission methods that meets Bank's minimum security standards for authentication and encryption. Bank will authenticate each Entry and File transmitted to Bank in Company's name using an agreed upon 10 password combination or digital certificate. 'Ixf Bank's Internet ACH Service Security Procedure - Two-Factor 'A.dhentication. Bank's Intemet ACH Service Security Procedure is an Intemet-based method that meets Bank's minimum security standards for authentication and encryption. Bank will authenticate each Entry and Rle released to Bank in Company's name using an agreed upon 10 password combination and a token card. o Connect Direct with Secure +. Connect Direct with Secure + is a method that meets Bank's minimum security standards for authentication and encryption. Secure+ is an add-on to Connect Direct to enhance security by means of Secure Socket Layer ("SSl") or Transport layer Security ("TlS"). Bank will authenticate each Entry and File transmitted to Bank in Company's name using an agreed upon 10 password combination and a token card. Connect Direct and Secure + are trademarks of Sterling Commerce. o Security Procedure Elected bv ComDanv's Third Party Service Provider. Company is utilizing a Third Party Service Provider ("TPSP") as defined in the ACH Rules to originate Entries and Files on Company's behalf. Bank will authenticate each Entry and File transmitted to Bank in Company's name in accordance with the security procedure the Company's TPSP has elected. Company shall notify Bank of any change to Company's TPSP in a manner affording Bank a reasonable opportunity to act on the information. Company's TPSP is identified as: Third Party Service Provider: Contact Person: Telephone: Fax: o Non-5tandard Security Procedure. Company has refused to utilize C1ny of the security procedures described above and has elected to use the SecuritY Procedure set forth in Attachment B. IN WITNESS WHEREOF, Company and Bank agree to and accept this ACH Origination Services Service Description. By: Name: Title: Date: ("Company") Wells Fargo Bank, N.A. ("Balik") By: Name: Title: Date: ACH Origination Services (TM-1423) Revised 03-15-D7 Page 6 of 7 e e e ACH Origination Services (TM-1423) Revised 03-1~7 Page 7 of7 tit tit tit Wire Transfer Services Security Procedures Agreement II Section 1 - Agreement DNEW DREPLACEMENT Accounl Number: This agreement is made this _ day of -,20 by and between _ ("Company") and Wells Fargo Bank, NA ("Bank"). By signing below or, if applicable, on the Acceptance of Services, Company acknowledges receiving and agreeing to be bound by these terms and conditions and those referred to in Bank's Wire Transfer Customer Semp Form (the "Semp Form") and the Wire Transfer Services Agreement or the Master Agreement for Treasury Management Services and Wire Transfer Services Description and, if applicable, the CEO Service Description. Company understands that in any instructions to transfer funds by wire from accounts Company maintain at Bank ("Orders"), Bank may rely solely (i) on the account number of the person ("Beneficiary") who is to receive the wire transfer rather than the Beneficiary's name, and (ii) if provided by Company, on the identification number of any other financial instimtion through or to which the funds are to be transferred, rather than the name of the fmandal instimtion. COl!IPany agrees that it is bound by any Order, whether or not authorized, issued in its name and accepted by Bank in cOl!IPliance with the security procedure selected by COl!IPany. Section 2 - Standard Security Procedures 2.1 Voice Initiated Orders. Bank's standard security procedures consist of confirming that the personal identification number ("PIN") that accol!IPanies. an Order corresponds with a valid PIN assigned to Company on voice-initiated Orders. A PIN is required for all voice-initiated transfers. 2.2 Terminal Initiated Orders. Bank's standard security procedures for terminal-initiated Orders (including Orders placed via the Internet) consist ofRSA SecurlD@ or other system security feames offered by Bank. Section 3 - Additional Secllrlty Procedures for Specific Services. (Unless designated as "optional", the foUowing security procedures are required in addition to the Srandard Security Procedures.) 3.1 Voice Initiated, Non-Repetitive Wires. 3.1.1 Telephone Verification Service: Non-Repetitive Outgoing wire ofS_ or more. By indicating an amount COl!IPany has agreed that Bank will make a reasonable attel!lPt to. telephone a person(s) designated by Company on the Bank's most current Semp form, to verify that a voice-initiated, non-repetitive Order is authorized if it exceeds the amount noted above. If Bank is unable to complete the call the Order will not be processed. Bank will not telephone to verify a Repetitive Order. A "Repetitive Order" is an Order to Bank to pay a specified amount of money to a previously designated Beneficiary at a previously designated beneficiary's financial institution. 3.2 Commercial Electronic Office Portal (CEO @) Wire Transfer Service (or WellsNet Wire Transfer Service.) 3.2.1 Availability of Self-Administration, If Company requests Self-Administration of company's access to the CEO, most of the set-up and administration of Company's access to CEO services (including the CEO Wire Transfer Service) will be performed by Company's Company Administrator rather than Bank. Three levels of access authorization are available: Company Administrator, Administrator and Operator. A "Col!IPany Administrator" has access to all services COl!IPany receives through the CEO and is able to set up and administer access for other Company Administrators, Administrators and Operators for all such services. An "Administrator" has access to specific CEO services and can set up other Administrators and Operators for such specific services. "Operators" are authorized to access specific services and functions (for example, the create/modify function or the verify function for wire transfer requests) within those services, but they are not authorized to set up or administer access for such services or functions. TM- 1441 Wire Transfer Security Procedure Agreement Page' A-8 e 3.2.1.1 No SeJf-AdlllinislraIUIll. If Company does notbave Self-Administration, Company's designated security arlm;ni.trator will determine Operators and !be dollar limits per transaction and per day assigned to each Operator and will comnmnicate this information to Bank. Bank will set up the Operators by assigning each a personal ID code. Company's security administrator will also be responsible for comnmnicating any changes in Operators or in Operator limits or authorization(s) to Bank. Company will promptly repon to Bank any lost or stolen token cards. 3.2.1.2 Self-Adlllillistratioll. If Company has requested Self-Administration, Bank will assign a Company ID code and will set up Company's first Company Administrator by assigning a personal ID code and password to be used when he/she first enters the CEO number. He/She can then set up additional Company Administrators, Administrators or Operators. Any Company Administrator: (a) can set up additional Company Administrators, Administrators and Operators (issuing each a password that will be changed upon first entry to the CEO) and a personal ID code; (b) can reset passwords for ail services; and (c) shall be required to immediately disable access to the CEO for any Company Administrator, Administrator or Qpcrator who ceases to be a Company Administrator, Administrator or Operator. An Administrator can set up additional Administrators and Operators and reset passwords for the specific service{ s) he/she is set up to access. Bank will not know the password of any Company Administrator, Administrator, or Qpcrator except the initial password assigned to the first Company Administrator. Bank will give each Company Administrator and Administrator a token card and a PIN, known only by them individually and Bank. Self-Administration will also allow a Company Administrator or an Administrator to initiate a request to Bank to reassign an existing token card to another Company Administrator, Administrator or Operator. e 3.2.1.3 Self-Administration with Dual Control. If Company has requested Self-Administration with dual control, Bank will assign a Company ID code and will set up Company's first two Company Administrators by assigning each a personal ID code and password to be used when each flISt enters the CEO. All actions that can be performed by a Company Administrator or an Administrator in Section 3.2.1.2 will require that one Company Administrator (or Administrator with appropriate function access) initiate the action and a second Company Administrator (or Administrator with appropriate function access) approve the action. 3.2.2 Token Cards. Bank will assign a token card to each Operator. The token card generates a random and unique security code every minute. The code combines with a PIN to provide a unique password (the "Passcode") every minute. The PIN is set by each Qpcrator individually upon first logon. The Passcode must be presented with each request to access the Service and is used by Bank to authenticate the identity of Company and/or the person originating the requesl. Bank will verify each request to access the Service by detennining if the Passe ode is valid for the associated personallD code for the Qpcrator and if the pcrsonallD code used by the person requesting access is the personal ID code of one of the persons Company has designated in writing as being authorized such access. Bank has no obligation to confIrm in any other way the identity of any person making such a request. 3.2.3 Non-Repetitive Requests. For domestic and international non-repetitive wire transfer requests, Qpcrators who create/modify such requesls additionally will be required to use a Password which is initially provided to the Operator by Bank, or by a Company Administrator or Administrator if Company has Self-Administration, and is changed by the Operator upon flISt logon. 3.3 Electronic CommercelPayment Manager Services. (Check applicable box.) 3.3.1 o Password - File Transmission (Non-Encrypted). This procedure requires that a unique eight-digit code separately agreed upon in writing by Company and Bank be presented with Company's wire file. Company may be required to change the password on a regular basis. e TM- 1441 Wire Transfer Security Procedure Agreement Page 2 of 3 February 21, 2006 e e e 3.3.2. o Secure File Transport (EnC1)'pted). This procedure uses 128-bit SSL (Secure Soclcets r..yer) enC1)'ption and requires the use of a tran.cmi..ion ID and a custnmer selected transmission password. Use of a Bank issued digital certificate is optional. Section 4 - Additional Provisions 4.1 Separation of Operator Function. Bank strongly recommends that Company separate among Operators using the Wire Transfer Service the ability tn create/modify and tn verifY wire transfer requests. in order to reduce Company's rislc of suffering a loss resulting from an unauthorized or fraudulent wire transfers 4.2 Additional Actions by Bank. Any actions Bank talces tn detect erroneous wire transfer requests, or any actions Bank talces beyond those described above in an attempt tn detect unauthorized requests or instructions will be taken at Bank's sole discretion. No matter how many times Bank talces these actioDS they will not become part of Bank's standard procedures for attempting to detect such erroneous or unauthorized requests or instructions, and Bank will not in any situation be liable for failing to take or to correctly perform these actions. 4.3 Protection of Passwords, PINS, etc. It is Company's responsibility to ensure that the ID codes, passwords, token cards, PINs, and Passcodes are known tn, and used only by, persons who have been properly authorized by Company to use the Wire Transfer Service. Bank, in its sole discretion, may cancel or reissue any PIN it believes may have been compromised, including, without limitation, a PIN that has never been acknowledged as having been received and any PIN that has been used by anyone other than the intended authorized user. Section 5 . Customer Approvals - Signature(s) as required by certificate of authority on signature card Company Name as it appears on Company's account Printed Name of Authorized Signer Printed Name of Authorized Signer Signarure X Date Signature X Date Section 7 - Bank Approvals Bank Name RAU/CClAU Banker/Officer Name MAC Banker/Officer Signarure X . Phone Number ( ) Date TM- 1441 Wire Transfer Security Procedure Agreement Page 30t3 February 21, 2006 e e e . WELLSTAX<'l> SERVICE DESCRIPTION 1. Description. The WellsTAX Service will allow Company to transfer funds (a "Tran$fer") from its account(s) (each, an "Account") with Bank to pay its federal payroll taxes to the Internal Revenue Service ("IRS") and to pay certain other federal, State or other taxes listed from time to time in the WellsTAX User Guide. Means for initiating Transfers. Bank will originate Company's transfers from tts Account(s) to a third party ("Receiver") account ("Credtt Entries") using the automated clearing house ("ACH") system or book transfer, as appropriate. All transfers will be made in accordance with the terms of this Service Description and, where applicable, the Operating Rules of the National Automated Clearing House Association ("NACHA Rules"). Procedures for Initiating Transfers. Company may inttiate Transfers using the Commercial Electronic Office"'(CEO"'} portal, a touch-tone telephone or a PC on which the WellsTAX Windows- based software (the "Software") has been installed. In order to initiate a Transfer, Company must use an access code and personal identification number ("PIN"). 2. 3. 4. Security Procedures. a. Company will manage and control the access to the WellsTAX Service by means of its access code and PIN. b. Company assumes the entire responsibility at all times for the supervision, management, control and confidentialtty of tts access code and PIN and assumes the entire risk for the fraudulent or unauthorized use of tts access code or PIN. Company understands that failure to protect tts access code and PIN may allow an unauthorized person or entity to access the WellsTAX Service. Company agrees to develop and put in place internal procedures to limtt such risk, including, among other things, (i) changing the PIN at least once every 90 days, (ii) changing the PIN each time an employee who had access to the PIN leaves Company or is reassigned. and (Iii) keeping the access code and PIN under secure condttions. Company also agrees to notify Bank immediately if tt knows or suspects that the confidentiality of its access code of PIN has been breached. c. Company agrees that all persons or entities employed by Company to prepare, process or transmtt Company's Credtt Entries to Bank will be deemed Company agents and will be subject to the same requirements as Company under this Service Description, including, among other things, compliance wtth the Security Procedures and the NACHA Rules. 5. Accuracy of Data. Company must provide to Bank the data and infonnation necessary to enable Bank to infonn the govemment agency or ent~y to be paid of the payment of the tax within the time periOd required by any rule or regulation goveming the payment. Company authorizes Bank to rely on the accuracy of such data and infonnation fumished by it. 6. Transfer Deadline. Any Transfer initiated on any Business Day (a day on which Bank is open to provide the WellsTAX Service, other than Saturdays, Sundays or public holidays) after the cutoff hour Bank establishes, or any time on a non-Business Day, will be deemed initiated on the following Business Day. Transfers must be inttiated by the applicable deadline ("Transfer Inttiation Deadline") as follows: Transfers to a taxing authority must be inttiated at least one Business Day prior to the date payment is due to the taxing author~y. Authorized Reporting Agent. In perfonning the WellsTAX Service, Bank is acting as Company's authorized reporting agent. If Company is a taxpayer that is mandated by Federal Law to make FTD payments and subm~ FTD infonnation through the EFT system, Bank must 7. TM-1520 WellsTax Service Description Revised 6J04 Page 1 ot4. A.9 e e e 8. make Company payments as FTD payments and submit Company payment information through the EFT system,regardless of Company's designation to the contrary. Acceptance of Transfer Requests. a. The Security Procedures describe what steps must be taken to attempt to prevent unauthorized Credit Entries. Company agrees to be bound by any Credit Entry (i) authorized or transmitted by Company or (Ii) made in Company's name and accepted by Bank in good faith and in compliance with the Security Procedures, even if not properly authorized by Company. If Bank takes any actions beyond those described in the Security Procedures in an attempt to detect unauthorized Credit Entries or to detect errors in the transmission or content of Company's Credit Entries, Company agrees that no matter how many times Bank takes these actions (i) they will not become part of the Security Procedures; and (ii) Bank will not be liable in any situation for failing to take or correctly perform these actions. Without limiting Bank's general right to reject entries or files under the NACHA Rules, Bank may reject any entry or file which does not comply with the requirements in this Service Description, the NACHA Rules or the Security Procedures, or with respect to which payment is not made in accordance with this Section 8. A request for a Transfer may not be accepted by Bank or the making of a requested Transfer may be delayed if the Transfer would (i) exceed the available funds in the Account on Transfer Initiation Deadline, (Ii) cause Bank to violate any applicable laws or regulations, or (iii) cause Bank to exceed any limitation on intra-day net funds position established in accordance with Federal Reserve or other regulatory guidelines or violate any other Federal Reserve or other regulatory risk control program. If Bank does not accept a request for a Transfer or must delay making a requested Transfer, Bank will attempt to notify Company by telephone. b. Company agrees to pay Bank, in immediately available funds, an amount equal to the full amount of the requested Transfer. Each such payment must be received by Bank on the date of initiation, which must be on or before the Transfer Initiation Deadline. Company expressly authorizes Bank to debit the Account for the total amount of such Transfer on the date of initiation. c. If Bank rejects a Credit Entry Company has requested, Bank will endeavor to notify Company promptly on or before its scheduled Settlement Date, but Bank shall have no liability to Company for any such rejection or for any loss resulting from Bank's failure to provide such notice. d. Bank may process Company's Credit Entries either directly or through any mechanism it selects. Company represents and warrants with respect to each Credit Entry that Bank originates for Company that on its Effective Entry Date, on the date it is originated, and on the dates Bank debits the Account for the Credit Entry, (i) each Receiver has authorized the crediting of its account, and (ii) each Credit Entry is in all other respects properly authorized. Company agrees to indemnify Bank for any losses, liabilities, costs or expenses Bank suffers or incurs as a result of any breach of these representations and warranties. e. Bank will determine the funds transfer system or otner third party communications systems and the means by which each Credit Entry will be originated. f. Any instruction attempting to restrict Bank's acceptance of Company's Credit Entries or to reverse or delete any Credit Entry must be made in accordance with this Service Description and where applicable, the NACHA Rules. At Company's request, Bank will make reasonable efforts to reverse or delete a Credit Entry, but Bank will have no responsibility for the failure of any other person or entity to comply with Company's request. 9. No Verification of Transfer Requests. Bank is under no obligation whatsoever at any time to verify any Transfer request, and will have no liability for failing to investigate or verify any Transfer request. 10. Confirmations. Bank will confirm each Transfer by an entry on Company's account statement that Company will receive at regular intervals (or on any bank information reporling service that TM- 1 520 WellsTax SefVice Description Revised 6104 Pag:e 2.of4 e e e Bank provides Company). Company must immediately infonn. Bank of any Transfer that is incorrect or not authorized by Company. Debits to Accounts for Transfers. Company hereby authorizes Bank to debit the Account for all Transfers made by Bank from such Account. Company agrees to maintain in each Account at all times good and sufficient funds to cover all Transfers out of such Account. If sufficient good funds are not maintained in an Account to cover fully a Transfer out of such Account, Bank win have no obligation to perform the WellsTAX Service for Company or to make any Transfer out of such Account for Company even if Company has instructed Bank to do so. 12. Amendments and Cancellations of Transfer Requests. After Bank has made a Transfer, it cannot be canceled, amended or reversed. 11. 13. Attempts to Restrict Acceptance of Transfer Requests. Instructions attempting to restrict Bank's acceptance of Company's requests for Transfers out of an Account may only be made in a writing, sent by telecopy or mail or personal delivery, which is signed by at least one of the persons authorized on the account documentation for such Account to withdraw funds by check from the Account or by a person authorized in Company's Board of Director's resolutions to enter into funds transfer arrangements with banks or into this Service Description. Such instructions will only be effective with respect to requests for Transfers made on the first Business Day after Bank receives such instructions. 14. Records, information and Audits. Company agrees to determine promptly the accuracy of all records and information regarding the WellsTAX Service or any Transfer delivered by Bank to Company and to notify Bank immediately of any errors in such records or information. Nothing in this Service Description shall relieve Company from (a> any responsibility imposed by law, regulation or contract with regard to the maintenance of records, or (b) any responsibility to perform audits and account reviews customarily conducted by persons or entities whose businesses are similar to Company's business. 15. Responsibility for Paying Taxes. Any interruption in the Wells TAX Service for any reason beyond Bank's control will not relieve Company of any obligation to pay any tax to the IRS, or any other government agency or entity owed the tax, and Bank will have no liability to Company for any failure by Company in such circumstances to pay any tax. 16. Changes to Information. Except as provided otherwise in this Agreement, the information on any Set-Up Form can only be changed by delivering a new Set-Up Form to Bank. Each completed Set-Up Form must be sent to Bank. 17. Software. Bank hereby grants Company a non-exclusive and non-assignable sub-license to use the Software for the purpose of initiating Credit Entries. The Software is the original, confidential, valuable and proprietary product of govONE Solutions, LP which has licensed the Software to Bank with the right to sub-license to Company. Company has only the right to use the Software consistent herewith and with the other WellsTAX Service Documentation. 18. Maintenance. Company will, at Company's own cost and expense, obtain, install and, at all times during Company's utilization of the WellsTAX Service, maintain in good working order all hardware and equipment necessary for the WellsTAX Service. Company shall implant on a regular basis and no! less than weekly, backup measures to the WellsTAX Service, including, among other things, if Company is originating Credit Entries through Company's PC, copying onto diskelle each week's current data base files. In the event of any failure of hardware or software, Company will deliver to Bank all data necessary to perform Bank's obligations in connection with this WellsTAX Service. 19. Survival. Sections SId). 9 and 19 will survive termination of the Service. TM-1520 WellsTax Service Description Revised 6104 P8ll8 3 of 4 e e e 20. Terminology. Unless specifically defined in this Service Description. tenns used in this Service Description have the meanings. if any. provided in the Master Agreement and the other Service Documentation. as each may be amended from time to time. TM-1520 WellsTax Service Description Revised 6104 Page4of4 e e e . WELLSIMAGE.CD SERVICE DESCRIPTION 1. Introduction. This Service Description and the other Service Documentation as defined in the Master 'Agreement for Treasury Management Services ("Master Agreemenr) between Wells Fargo Bank, N.A. ("Bank"), and the company identified in the signature block of the Acceptance of Services ("Company") between Bank and Company govern Bank's Wellslmage CD Service (the "Service"). 2. Description of the Service. The Service enables Company to receive a Wellslmage CD-ROM ("CD-ROM") containing (a) an index of each Paper Item that has been paid against each Company checking account at Bank that is enrolled in the Service (each, an "Accounr) for the specified CD-ROM cycle; and (b) images of the front and back of each paid Paper Item. After the end of each CD-ROM cycle, CD-ROMs will be sent to Company at the addressees) designated by Company. CD-ROMs may be viewed using the Wellslmage ViewerN Software (the "Software") which will be provided pursuant to Section 7 below. "Paper Item" is defined in Bank's Commercial Account Agreement. 3. Condition to Provision of the Service. As conditions to Bank's provision of the Service, Company will (a) at all times maintain the Account(s) in good standing, and, (b) agree to the terms of the Software Sublicense (see Section. 7). 4. Rules Applicable to the Service. Bank will provide the Service to Company in accordance with (a) the Service Documentation including, without limitation, the Wellslmage Viewer User Guide(s) that Bank makes available to Company; and (b) state and federal laws and regulations, including the National Automated Clearing House Association Rules ("NACHA Rules.) applying to Paper Item conversion. 5. Paper Item Conversion. The NACHA Rules allow for the conversion of certain Paper Items into ACH items. Images of Paper Items converted pursuant to the NACHA Rules may not be available through the Service. 6. Images and Replacement CD-ROMs. If a Paper Item on a CD-ROM index is not imaged on the CD-ROM (and the image is available), Bank will, upon request and without charge, send an image copy of the front and back of the Paper Item. However, each Paper Item will be indexed and the data contained on the Paper Item will be provided on the CD-ROM whether or not an image of the Paper Item is available. In addition, Bank will, at Company's request, recreate a CO- ROM, but only for a period of sixty (60) days after the CD-ROM is first created. 7. Software Sublicense. Company must use the Software in accordance with the terms of a non- exclusive, non-assignable sublicense ("Software Sublicense") from Bank. The Software Sublicense will be presented to Company during installation and Company will be required to accept it before being allowed to use the Software. This Section will survive termination of this Service. 8. Termination. In addition to the termination provisions of the Master Agreement, the Service may also be terminated by Bank immediately on written notice to Company if Company fails to comply with its obligations under the Software Sublicense. WeU.lmage CD Service Description (TM - , 437) Revised Q4-2G-2007 _1of1 A-IO e e e . RECEIVABLES MANAGER SERVICE DESCRIPTION 1. The Receivables Manager Service (the"Servlce"). 1.1. Descriotion. The Service will enable Company to send and receive Remittance Infonnation (as defined below) and related data through various channels including paper advices, E*Fal<, Electronic Data File, and the Commercial Electronic Office. (CEO.) intemet business portal in a fonnat compatible with its accounts receivable system, and subject to the provisions in Section 2. If Company elects, Bank will consolidate all Remittance Infonnation into a single transmission to enable Company to update Company's accounts receivable system, whether Company requires an ANSI or proprietary fonnal. Bank can also send Remittance Infonnation in several transmissions throughout the day depending on the payment type chosen. 1.1'.1. Intemet Bill Pav Feature of the Service. The Intemet Bill Pay feature of the Service will enable Company to have its consumer Bill Payments, including those made through Intemet bill payment and consumer credit counseling services, received and processed by Bank and credited to Company's Account (see Section 3). Bank will transmit to Company's accounts receivable system electronic Remittance Infonnation consolidated from various consumer bill payment service providers. Bank will gather this Remittance Infonnation from certain electronic 'netwOrks ("Networks") with which Bank has agreements ("Networks Agreements") providing for receivables manager services, including the routing of remittance data, funds settlement and related services. Bank provides the Service in accordance with the provisions in Section 2 and subject to the Networks' rules and procedures and the Networks Agreements (collectively, the "Networks Documentation"). The Service will screen for proper fonnats to assist in eliminating "unidentified" payments. .Debt management proposals may be received electronically when Bill Payments from consumer credit counseling services are received electronically Company is responsible for researching Intemet Bill Pay feature items and retuming them through the Bill Pay Receiveables Service using the CEO intemet business portal. 1.2. Instructions/lnfonnation Sent or Received. Company is solely responsible for implementing any programs and procedures it detennines are necessary or appropriate to ensure the integrity, validity and accuracy of ,instructions sent and infonnation received through the Service. Bank has no responsibility for reviewing the content of any instructions or infonnation sent or received through the Service. Bank makes no representation regarding the validity or legal enforceability of any contract that is formed, or attempted to be fonned, through the use of the Service. Company, and not Bank, is responsible for detennining the legal effect of any instructions or infonnation sent or received through the Service. Bank may refonnat Company's instructions to the extent that Bank determines such action to be necessary or appropriate in order to execute them. Bank will not send an acknowledgment that instructions or other infonnation has been received by Bank to Company unless Bank has otherwise agreed to do so in writing. Nothing contained in any instructions or infonnation sent or received through the Service will be considered confidential, except to the extent specifically identified and expressly agreed to in a separate writing signed by Bank and Company. e e e 2.1. Definitions. As used in this Service Description, the following terms have the definitions set forth below: . Account means each of Company's deposit accounts maintained at Bank and approved by Bank for use with the Receivables Manager Service. . Bill Payment means a bill payment from a Customer to Company effected through the Receivables Manager Service. . . Customer means an individual or entity that sends a Bill Payment to Company pursuant to an agreement with a Customer Financial Institution. . Customer Financial Institution means a financial institution that provides bill payment services to a Customer and utilizes either the VISA ePay Service, MasterCard RPPS or other remittance processing service supported through the Receivables Manager Services. E"Fax_means the Bank's automated fax service. . Electronic Data File. means a collection of data or information created and stored in an electronic format. . Returned Item. means a payment that cannot be posted or a Bill Payment that Company returns in accordance with this Service Description. Remittance Information means the information Bank provides to Company concerning Bill Payments that Bank receives that are directed to Company. Remittance Information will be provided in the manner and format, described in the Receivables ManagerService Set-up Form or as otherwise speCified by Bank in writing from time to time. Settlement Date means the date on which an exchange of funds in settlement of a Bill Payment occurs: . A Third Party Service Provider is a third party that provides remittance processing services in support of the Receivables Manager Service. Such service providers may include, but may not be limited to, MasterCard International, Incorporated. 2.2. Transmission of Remittance Information And Other Data. Each Business Day, no later than the cutoff time specified by Bank in writing from time to time, Bank will provide Company Remittance Information regarding Bill Payments directed to it, provided Company can be identified by Bank as the intended recipient. 2.3. Receiot of Receivables Manaoer Bill Pavments: Credits to the Account. The Account will be credited for each Bill Payment received by Bank that is directed to Company, provided such payment is not rejected as provided in Subsection 2.4.. If the Settlement Date is a Busiiness Day, the Account will be credited on that day, otherwise the Account will be credited on the next Busiiness Day following the Settlement Date. Any credit to the Account is provisional until Bank receives final settlement or payment for that credit. Consequently, if settlement or payment is not received in connection with a Bill Payment that Bank has creqited to the Account, Bank is entiUed to reverse the credit given and Company will repay upon demand any funds withdrawn. Notwithstanding anything in this subsection to the contrary, if Bank concludes or suspects that Company is not entitled to.a Bill Payment that has been directed to it, Bank may, to the extent not prohibited under applicable law, either (i) delay crediting the Account for the Bill Payment, (ii) delay the availability of funds credited to the Account for the Bill Payment, or (Iii) place a hold on funds in the amount of the Bill Payment maintained in the Account or any other account Company maintains with Bank or a Bank affiliate. 2.4. Reiection of Bill Pavments. Bank may, but will not be obligated to, reject a Bill Payment: (i) that does not contain all of the required information specified by Bank; (ii) if Bank suspects that Company is not entitled to the Bill Payment; (Iii) If at the time of receipt Company does not maintain _J.fanagerSeMceDesCliplionTM-1427 1_7/06) PIgo2of6 e e e an Account with Bank; (iv) if at the time of receipt Bank is not permitted by law to accept credits to any of Company's accounts; or (v) if Company is in default under this Service Description or the other Service Documentation. Bank will reject any Bill Payment or Remittance Information directed to Company received after the Receivables Manager Service has been terminated. 2.5. Comoanv Resoonsibilities. 2.5.1. Biller Address. Company will provide Bank with an address to which bill payments are to be sent. Bank may provide this address information to third party service providers. Company will provide Bank with at least sixty (60) days' prior written notice of any change in the address to which Bill Payments are to be sent. 2.5.2. No Discrimination. Company will not discriminate in any way against or discourage any Customer who elects to make a payment through the Receivables Manager Service. For example, Company may not increase the purchase price of any good or service, or assess any special charge, with respect to a Customer who elects to make payment through the Receivables Manager Service rather than through cash or check. 2.5.3. Processino and Postina of Bill Payments to Customer Accounts. Company will process and post to the account of its Customer each Bill Payment received through the Receivables Manager Service in accordance with its then current applicable billing policies and this Subsection 2.5. Each Bill Payment will be credited to Customer's account no later than the close of business of the next Business Day next following the payment's Settlement Date. In the event that Company is unable to process and post the Bill Payment within the time period prescribed in this Paragraph 2.5.3. and it is postable in accordance with Company's then current applicable billing policies, Company will treat the Bill Payment as if it had posted it to Customer's account in accordance with this Subsection 2.5. Company's obligations as provided in this Subsection 2.5. are unaffected by any delay that may have occurred in the crediting of the Account, the availability of funds credited to the Account, or Bank's exercise of any of its rights as provided in this Service Description or the other Service Documentation. 2.5.3.1. Consumer Notification. Within twelve (12) months of the date on which the Receivables Manager Service commences, Company will communicate to its customers that it is accepting electronic payments. 2.5.4. Returned Items. Company must retum to Bank any Bill Payment that cannot be posted to a Customer's account within two (2) Business Days of the applicable settlement date. Company will comply with the procedure for retuming items through the CEO intemet business portal Bill Pay Receivables Service. Bank is authorized to act on any Returned Item or any instruction to effect a Returned Item received in the name of Company 2.5.5. Disoute Resolution. If a payment cannot be posted to Company's records, Company, within five (5) Business Days of being contacted by the Bank, will determine the source of the error and communicate it to Bank. Company must correct any error within one (1) Business Day of discovery. Resolution of such errors may require Company to remit payment to the proper payee or return funds to the sender. 2.5.6. Information Reauests. Company will upon request provide research on a payment in question and respond back within five (5) Business Days of being contacted by Bank, including, without limitation, that pertaining to: (i) resolving disputes, (ii) tracing or processing inquiries about Bill Payments, (iii) complying with applicable law, or (iv) determining Company's creditworthiness or liability as provided in this Service Description. 2.6. Adjustments. Bill Payments cannot be canceled or amended by Customer or Customer Financial Institution, unless permitted under the operating rules and regulations of the applicable third party service provider. Unless Customer has been previously reimbursed by Company, Company will -~_Des<riplion 1lf.1427 (Rlwised 7106) Page3of& tit e tit 2.7. repay to Bank any amounts improperly or erroneously credited to the Account, including without limitation any credits that reflect duplicative Bill Payments. Company will also prompUy payor repay to Bank any other sums (including sums in excess of the amount of the related Bill Payment(s)) that Bank is required to payor refund to a Customer Financial Institution or Customer pursuant to the rules applicable to the Receivables Manager Service (including the rules of any third party service provider utilized in connection with the Service, to which Bank is subject, or by any other applicable law, rule or regulation). In the event Bank determines that an amount has been improperly or erroneously credited to the Account or if Bank concludes that it is required to payor refund to a Customer Financial Institution or Customer as provided in this Subsection 2.6., to satisfy Company's obligation to Bank arising under this Service Description, Bank may (i) reduce any subsequent payment(s) Bank owes to COmpany under this Service Description or the. other Service Documentation and/or (ii) debit any account Company maintains with Bank or a Bank affiliate. If Bank elects not to exercise any of its rights under this Subsection 2.6., or if after exercising any or all of its rights under this Service Description, Company's obligation to Bank is not fully satisfied, Company will pay the amount of any remaining unsatisfied obligation to Bank within five (5) Business Days of receiving written demand. Rioht Of Set-Off: Net SeWement: Hold Bank Balances. Bank may set-off, withdraw, retain or hold for a reasonable time, to the extent permitted under applicable law, any funds received as a result of a Bill Payment directed to Company, or any funds in any account Company maintains with Bank or an affiliate of Bank, and/or Bank may reduce any subsequent payment(s) owed Company under this Service Description or the other Service Documentation, that Bank deems necessary because of any adjustment, error, termination of the Service, fees owed, any acts or omissions in breach of this Service Description or the other Service Documentation by Company, or any other obligation arising under this Service Description or the other Service Documentation. 2.8. Reoresentations and Warranties. Company represents and warrants to Bank, any third party service provider and each Customer Financial Institution (which repre~tations and warranties will be deemed to be continuing and reaffirmed upon each Bill Payment Bank receives for Company's credit) that: . all information provided and statements made by Company in connection with Bank's approval of Company's participation in the Receivables Manager Service were accurate and complete in all material respects at the time they were made; each bill Company sends to a Customer with respect to which a Bill Payment is received will, at the time the bill is sent, be in the correct amount of a valid and enforceable obligation of Customer that is due and owing to Company; Company will process and post to Customer's account each Bill Payment received in accordance with the requirements of this Service Description; and all informatiOn provided and statements made by Company in connection with (i) its use of the Receivables Manager Service, including without limitation any address to which Bill Payments are to be sent, (ii) a Corrective Message and (Iii) a Returned Item, will be accurate and complete in all material respects at the time they were made. 2.9. Third Party Beneficiaries. For purposes of the warranties in Subsection 2.6. of this Service Description and the Indemnification in Section 11 of the Agreement, any third party service provider, each Customer Financial Institution, and their respective directors, officers, employees and agents will be deemed to be third party beneficiaries. 2.10. No Liability of Third Party Service Provider or Customer Financial Institution. Notwithstanding anything in this Service Description to the contrary, neither any third party service provider nor any Customer Financial Institution will have any liability or responsibility to Company under this Service Description or otherwise for any loss, injury or damage arising out of, resulting from, or in connection with the Receivables Manager Service. --, Manager _ Desaiplion TJ.I.1427 1_7106) Pags4 of 6 e 2.11. Authorization To Obtain Information. Company authorizes Bank to obtain and review Company's credit report or other information about it from an authorized credit bureau or from any other person. 2.12. Record-Keeoina Obliaations. Company will maintain records reflecting the transaction(s) giving rise to each Bill Payment for a period of at least two (2) years from the date of the transaction. Such records will be made available to assist in the resolution of any Customer disputes that may arise in . . connection with the Bill Payment Bank will maintain records evidencing the Bill Payment for a period of at least two (2) years from the date of the transaction. In the event of any inconsistency between Company's and Bank's records, Bank's records will be deemed to control. 2.13. Confidentiality Of Customer Information. All information conceming the affairs and the accounts of Customers that come into Bank's possession through the Receivables Manager Service will be treated in the same confidential manner as is information relating to the accounts of Bank's depositors. 2.14. Riahts of Third Party Service Provider to Terminate or Limit Its Relationshio with Bank. Company acknowledges the right of any third party service provider used in connection with the ReceivableS Manager Service to terminate or limit its agreement with Bank. Upon termination, if termination thereafter prevents or restricts Bank's ability to provide the Service to Company, Bank may upon prior written notice terminate the Service, effective with the termination of the agreement between Bank and such third party service provider. 3. Account. Company will maintain at lea!;t one deposit account with Bank, which will be identified in the Receivables Manager Set-up Fonn or otherwise in Writing by Company and approved by Bank from time to time (the "Account"). 4. Identify Authorized Persons. Any person identified by Company in the Receivables Manager Service Set-up Fonn or any certification, notice or other communication delivered to Bank may receive infonnation, communications and notices regarding the Service, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the Service. If the identity of such a person changes Company will promptly notify Bank in writing. Bank will have a reasonable time after receipt of a certification, notice or other communication to act on it. e 5. Agents. 5.1. Comoanv. If Company elects to use an agent with respect to the Service, Company, and not Bank, will be solely responsible for the acts and omissions of Company's agent, and its agent will, without limitation, be authorized to initiate, originate, receive, return, adjust, correct, cancel, amend and transmit ACH transactions, wire transfers, Remittance Infonnation and related infonnation and instructions and select any related security procedure. Company agrees that any security procedure selected by its agent will be treated as commercially reasonable for all purposes. Bank may rely on instructions it receives from Company's agent and need not make any inquiries to verify or confifl'!'1 that instructions are within the scope of the agency. Company will certify each agent's identity and any changes to Bank in writing. Bank will be fully protected in relying on each certificate and on the obligation of Company to promptly certify any change in the agents so certified. Bank will have a reasonable time after receipt of a certification or change to act on it. e 5.2. Bank. Bank may at any time use agents and/or independent contractors to provide all or any portion of the Service, and will be solely responsible for the acts and omissions of those agents and independent contractors. However, Bank will not be deemed to be the agent of, nor responSible for the acts or omissions of any other person, including without __IIBnIgIlrS<lt>i<o Oos<ripjon 1JI.1427 (Rlwised TAl6) Page 5 of 6 e e e 6. limitation any Federal Reserve Bank, collecting or depository bank, payee or endorsee, ACH or wire transmission or communications facility, any receiver or receiving depository financial institution or gateway operator (including without limitation the retum of any funds by such receiver or receiving depository financial institution or gateway operator), and no such person will be deemed Bank's agent Software, Hardware and Backup Requirements. Company will, at its own cost and expense, obtain, install and, at all times during its utilization of the Service, maintain in good working order all software, hardware and other equipment necessary for it to perform in accordance with this Service Description and the other Service Documentation. Company agrees to implement, on a periodic basis not less than weekly, backup-measures, including, among other things, copying onto a diskette(s) each week's current data base files related to the Service. In the event of any failure of such software, hardware or other equipment, Company will deliver to Bank all data which it would otherwise have provided that is necessary for Bank to perform Bank's obligations in connection with the Service. 7. Survival. The portions of this Service Description designated 2.5.5.; 2.5.6.; 2.6.; 2.7.; 2.8.; 2.9.; 2.12; and 7 will survive termination of the Service. 8. Terminology. Unless specifically defined in this Service Description, terms used in this Service Description have the meanings, if any, provided in the Agreement and the other Service Documentation, as each may be amended from time to time _.~SeMcoDesctiplion 111-1427 (RlIYised7m6) Poge6of 6 e e e . POSITIVE PAY - PAY DEFAULT SERVICE DESCRIPTION 1. Introduction. This Service Description together with the other Service Documentation as defined in the Master Agreement for Treasury Management Services and Acceptance of Services (collectively, the "Master Agreement") between Bank and Company govern Bank's Positive Pay - Pay Default Service (the "Service"). 2. Description of Service. Bank's Positive Pay - Pay Default check fraud reduction program (the "Service") will enable Company to instruct Bank to return counterfeit checks, checks otherwise not validly issued and certain altered checks presented to Bank for payment on the demand deposit account(s) Company has enrolled in the Service (each, an "Accounr). Each such counterfeit, not validly issued or altered check and each check that Company issues on each such Account is referred to in this Service Description as a "Check." 3. Other Required Bank Services. In order for Bank to provide the Service to Company, Company agrees to subscribe to (i) Bank's Account Reconciliation Plan Service and (ii) B.ank's Commercial Electronic Office ("CEO"). 4. Service Elections. Company may select from three types of Positive Pay Service and, except as provided in Paragraph 4.4, elect the Payee Validation Option with any type of Positive Pay Service: 4.1 Perfect Presentment Positive Pay8. Each Business Day, Bank compares each Check presented to Bank on that Business Day to Company's Check Issue Data (see Paragraph 5) prior to posting such Checks to Company's Account. Checks with errors that Bank can correct, such as encoding errors, will be corrected, so that only unresolved exceptions are reported to Company. Bank offers this service through its Greenville or Van Wert controlled disbursement endpoints only. 4.2 Positive Pay. Each Business Day, Bank compares each Check presented to Bank on that Business Day to Company's Check Issue Data (see Paragraph 5) after such Checks have posted to Company's Account. All exception items will be reviewed, and Checks with errors that Bank can correct, such as encoding errors, will be reversed and. reposted, so that only unresolved exceptions are reported to Company. 4.3 Basic Positive Pay. Each Business Day, Bank compares each Check presented to Bank on that Business Day to Company's Check Issue Data (see Paragraph 5) and provides Company with an Exception Report that contains all exception items, including Checks with encoding errors. 4.4 Payee Validation. Bank validates the payee's name on each Check presented that exceeds the dollar threshold applicable to the Payee Validation Option Company has elected on Company's Positive Pay Service Set-up Form. Bank performs this validation by comparing the payee's name on a Check that is subject to validation to the payee's name contained in Company's Check Issue Data for that Check. If there is a discrepancy between the payee's name on the Check and the payee's name in Company's Check Issue Data that is' not within parameters Bank establishes from 11.1-1418 _Pay _ Dewiplion (PayDefauI) (_sed 01AlM15) PI/1I 1 of4 A-12 e e e l ... time to time in its sole discretion, Bank will return the Check unpaid. There are two Payee Validation Options: 4.4.1 Standard Payee Validation Option. Bank validates the payee's name on each Check exceeding the dollar threshold determined by Bank from time to time without notice to Company. Bank will indemnify Company against actual direct money losses incurred by Company as a result of an unauthorized alteration of the payee on such a Check, provided (i) Company included the payee's name with the information about the Check in Company's Check Issue Data and (ii) Bank received Company's Check Issue Data on a Business Day prior to the Business Day on which the Check was presented. 4.4.2 Customized Payee Validation Option. Bank validates the payee name on each Check exceeding the dollar threshold defined by Company in writing to Bank. Company will indemnify Bank against actual direct money losses Bank incurs as a result. of an unauthorized alteration of the payee on a Check below Company's defined dollar threshold, and Bank will indemnify Company against actual losses directly incurred as a result of an unauthorized alteration of the payee on a Check equal to or greater than Company's defined dollar threshold, provided (i) Company included the payee's name with the information about the Check in Company's Check Issue Data and (ii) Company's Check Issue Data was received by Bank on a Business Day prior to the Business Day on which the Check was presented for payment. Company acknowledges that if Company fails to include the payee's name with the information !ilbout the Check in Company's Check Issue Data, or if Company requests Bank to manually add Check registers on its behalf, Bank will not be able to perform the Payee Validation Option with respect to such Checks. Company further acknowledges that it must submit its Check Issue Data to Bank by 10:30 p.m. Pacific Time in order for payee validation to occur on Checks, other than those cashed at a Bank branch, presented for payment on the following Business Day. The Payee Validation Option will not begin until the Business Day after the Business Day on which it has been set up on Bank's data processing system. If Company selects the Perfect Presentment Positive Pay Service offered through Bank's Greenville endpoint, the Payee Validation Option will be limited to those Checks presented at a Bank store for encashment. 5. Check Issue Data. On each Business Day prior to the cutoff time Bank separately discloses to Company from time to time, Company will provide Bank with the complete issue date, serial number, amount and, if Company has selected a Payee Validation Option, the payee name (collectively, the .Check Issue Data") for each Check Company has issued on Company's Account(s). The Check Issue Data will be provided to Bank in the format and medium, by the deadline(s), and at the place(s) specified by Bank in the Positive Pay Service Set-up Form or otherwise in writing to Company. In performing the Service, Bank will use only the Check Issue Data that Company has provided to Bank. Company assumes full responsibility for providing timely, accurate and complete Check Issue Data to Bank. Company acknowledges that if Company's Check Issue Data includes issue dates in the future. Bank will be unable to match Company's Check Issue Data in the future-dated Check register against the serial number, amount and payee name for Checks presented against the Account until the issue date contained on the future-dated Check register matches the current day's calendar date. Bank will not accept Check Issue Data that contains an issue date which is more than fourteen (14) calendar days in the future. TM-Ula PosiIive Pay SeMce Desaip/itJtl(Pay DefaiJ,) IRe.sed 01/OW5) PIllJOZ<<4 e e e Payment of Matching Checks. if a Check presented to Bank matches the Check Issue Data Company has given Bank (a "Matching Check"), Bank will make finai payment on the Check and charge the Check to Company's Account. 7. Exceptions Report. Each Business Day, Bank will notify Company of the Check number and amount of each Check which is not a Matching Check in the Image Positive Pay Exceptions Report (the "Exception Report'1 which Company shall access through Bank's CEO. Bank shall have no responsibility for validating a payee's name on a Check included in an Exception Report. If Company is rec;eiving the Basic Positive Pay Service, the Exception Report will also include Checks which are not matching Checks because' of encoding errors. . 6. 8. Company's Payor Return instructions. If, prior to the deadline specified by Bank on the Exception Report (the "Decision Deadline"), Company (i) identifies a Check by complete serial number and amount and (ii) instructs Bank through Bank's CEO to payor return such Check Bank will follow Company's instructions. Company will make its payor retum decision based on the Magnetic Ink Character Recognition or, if applicable, payee information provided in the Exception Report. If requested by Company, Bank will use reasonable efforts to provide an image of a Check to Company, but will have no liability if it is unable to do so prior to the Decision Deadline. If Company elects the Payee Validation Option, on the Business Day on which Bank identifies a payee name discrepancy, Bank will make one attempt to notify Company by telephone at the telephone number Bank has for Company in its files, of each Check that is not a Matching Check. Company will contact Bank at Bank's phone number left in the telephone message prior to the cutoff time Bank separately discloses to Company from time to time if Company does not want such a Check returned. If Company selects the Perfect Presentment Positive Pay Service offered through Bank's Van Wert endpoint, when the Decision Deadline has passed (I) if Company has instructed Bank to pay a Check, Bank will verify that a stop payment order has not been placed with respect to the Check, and (ii) if Company misses the Decision Deadline, Bank will verify that a stop payment order or a cancel or void instruction, has not been placed with respect to the Check between the time it was listed in the Exception Report and the Decision Deadline. If such an order or instruction was placed, Bank will return Check unpaid. if Company selects the Perfect Presentment Positive Pay Service offered through Bank's Van Wert endpoint, the Decision Deadline will expire on the Business Day following the Business Day on which the Check was presented at the. time specified by Bank on the Exception Report. 9. Payment of Checks Listed in Exception Report. Except as provided in Paragraphs 4.4 and 8, if Company misses the Decision Deadline for a Check listed in the Exception Report, Bank will make final payment of the Check and charge it to Company's Account. 10. Greenville Holdover Exceptions. If Company is receiving the Perfect Presentment Positive Pay Service with Controlled Disbursement through Bank's Greenville endpoint and a Check is processed by Greenville in the normal course of business for provisional settlement after the cutoff time for preparation of Greenville's Final Presentment Detail File but before the end of Greenville's Business Day, Greenville will transmit a holdover file (the "Holdover File") to Bank on the moming of Greenville's next Business Day. Each Business Day, Company's Check Issue Data, as Bank has recorded it up to and including that Business Day, will be electronically matched to Checks presented to Bank in Company's Holdover File. Bank will pay each Check that is not a matching Check if it is for an amount less than Bank's then current applicable dollar threshold. Bank will make one attempt to Tl./-1418 _ Pey _ DesaipIion (Pay Dafaul) lRaWsadOl,wos) Page 3 off e e e 11. notify Company by telephone at the telephone number Bank has for Company in its files, of each Check that is not a Matching Check. Company will contact Bank at Bank's phone number left in the telephone message prior to the cutoff time Bank separately discloses to Company from time to time if Company does not want such a Check retumed. Limitation of Liability and Indemnification. Each Check Bank retums in accordance with this Service Description will be deemed not to be properly payable. Except as otherwise provided in this Service Description, each Matching Check or other Check Company has authorized Bank to pay in accordance with this Service Description will be paid without Bank performing its customary (or any other) Chec~ verification procedures, and Bank will have no liability whatsoever for paying a Check if its serial number, amount, or, if the Payee Validation Option has been selected, payee's name, is altered, or if it is Counterfeit, bears a forged or unauthorized signature or was otherwise not validly issued. Company (I) agrees to indemnify and hold Bank harmless from any losses or liabilities Bank may suffer or incur as a result of Bank's retum of a matching or other Check at Company's instruction, and (ii) releases and forever discharges Bank, and its parent, subsidiaries, affiliates, successors, officers, directors, employees and agents, from any and all manner of action or actions, suits, claims, damages, judgments, levies, executions, expenses, costs, interest, attorney's fees and legal expenses, whether known or unknown, liquidated or unliquidated, fixed, contingent, direct or indirect, which Company has, or ever can, mayor shall have or claim to have against Bank regarding or relating to the payment or return of any Check in accordance with this Service Description. 12. Stop Payment and Return Decisions. The Service will not be used as a substitute for Bank's stop payment service. Company will follow Bank's standard stop payment procedures if it desires to return a Matching Check or other Check that was validly issued. Nothing in this Service Description will limit Company's right to stop payment on any matching or other check or Bank's right to return any Matching Check or other Check that Company has authorized Bank to pay in accordance with this Service Description if Bank determines in its sole discretion that (I) the Check is not properly payable for any reason (without Bank's agreeing to, or being required to; make such determination in any circumstance) or (Ii) there are insufficient collected and available funds in the Account to pay such Check. 13. Cancel and Void Instructions. Company agrees to use (i) a cancel instruction only to delete an outstanding Check included in its Check Issue Data and (ii) a void instruction only to notify Bank that a Check included in Company's Check Issue Data has been destroyed and will not be re-issued. Company acknowledges that cancel and void instructions will be retained and appear on statements for Company's Account for two statement cycles or two months, whichever occurs first following Bank's receipt of Company's instruction. 14. Termination. The Service will automatically terminate if Company's Account is closed for any reason. Termination of the Service will not terminate Company's or Bank's ri~hts or obligations under this Service Description or the Service Documentation with respect to events or actions which occurred before such termination. 15. Survival. Section 11 will survive termination of the Service. TIoI-I41B _ PIIf - DesaipIion (PIIf DeIouIJ IRso.isedOIAJMJ5/ Page4 af4 e e e . COMMERCIAL DEPOSITORY SERVICE DESCRIPTION 1. Cash Orders from Bank's Cash Vault; Cash Vault Service. Company agrees that the following procedures will govem Company's ordering of currency and coin ("cash") from Bank's cash vault and Bank's making such cash available to an armored car service acting as Company's agent ("Agen!") at Bank's cash vault (collectively, the "Cash Vault Service.") 1.1 Cash Reouests. Company may request in writing, telephonically by operator-assisted call or by touch-tone/automated response, or electronically via transmission, facsimile, or . the Commercial Electronic Office. (CEO.) portal (each a "Cash Reques!") that Bank make available to Company's Agent at Bank's cash vault, in an amount designated in the Cash Request, shipments of cash (each a "Cash Shipment") in bags or other containers ("Cash Bags"). Bank is authorized to act upon any Cash Request Bank receives in accordance with this Service Description, and which Bank believes in good faith to have been made by an authorized representative of Company. Bank has no obligation whatsoever to verity, and will not be liable for its failure to verify or investigate, any Cash Request. 1.2 Makino Cash Available to Comoanv's Aoent. Bank is authorized to make Cash Shipments available to any person whom Bank in good faith believes to be Company's Agent. Bank will have no further responsibility, and Company assumes all risk of loss, for cash made available to any such person. Bank will make Cash Shipments available only at the locations, on days, and during the hours published by Bank from time to time. Bank reserves the right to suspend its Cash Vault Service at any time without notice. 1.3 Comoanvs Authorized ReDresentatives. Company will prompUy certify to Bank the identity of: (a) the person with whom Bank is authorized to communicate regarding authorization codes or other security procedures; (b) of Company's Agent authorized to accept delivery of cash; and ( c) where applicable, the persons who are authorized users of the Cash Vault Service. Company agrees to give prior written notice to Bank of any change in the person(s) or Agent so authorized by Company. Bank will be fully protected in relying on each such notification and on the obligation of Company to prompUy notify Bank of any change in the person(s) or Agent so authorized by Company 1.4 Securitv Procedures. For requests made in writing or by fascimile, operator-assisted telephone call or transmission, a Customer 10 assigned by Bank is required. For CEO requests, a User 10 assigned by Bank is required. For touch-tone/automatic response telephone requests, an Access Code is required which can be assigned either by Bank or by Company. Operator limits may also be required. It is Company's responsibility to put into place intemal procedures that will minimize the risk of an unauthorized person gaining access to the Customer 10, User ID(s) and Access Code(s). Such intemal procedures include, but are not limited to, requiring users to maintain such number(s) and code(s) in strict confidence. Company must notify Bank immediately in the event a breach of security is suspected. 1.5 Debit of Account. On the Business Day that Bank makes available any Cash Shipment to Company's Agent, Bank is authorized to debit Company's designated account ("Designated Account") for the aggregate amount of the shipment. Company must maintain collected balances in the Designated Account sufficient at all times to cover fully any debit. Bank has no obligation to release a requested Cash Shipment or any portion thereof to Company's Agent unless there are sufficient collected funds in the Designated Account to tully cover the amount of the Shipment at the time the Shipment is to be made available to Company's Agent. If Company fails to specify a Designated Account to Bank, Bank may debit any account which Company maintains with Bank for the amount of a requested Cash Shipment. Tl.f.lffl Com_ Depositoty _ DeSClipIion/RfWisedlYlOO3} Poge 1 014 A.13 e e e 2. 1.6 Packina SliD: Differences in ShiDment Amount Each Cash Shipment will be accampanied by a packing slip. The packing slip will disclose the aggregate amount of the Cash Shipment, the overall number of containers included in the Cash Shipment, and the number of containers delivered to Company's Agent for transmittal to Company. With respect to any Cash Shipment made available to Company's Agent, Company will notify Bank immediately in writing of any difference between the amount specified on the packing slip for that Shipment and the amount, as counted by Company, of. the Shipment. In the event that the difference cannot be resolved, Bank's count of the amount of the disputed Shipment will be conclusive and binding on Company. . Delivery and Processing of Deposit Shipments et Bank's Cash Vault. The following procedures will govem Company's delivery of currency, coin, checks. Dther negotiable instruments Dr food coupons <each a "Deposit Shipmenf') to Bank's cash vault locations, and Bank's processing of such Deposit Shipments: 2.1 Use of Aaentto Deliver ShiDments. Company will deliver Deposit Shipments in deposit bags or other containers ("Deposit Bags") to one of Bank's cash vaults via an armored car service acting as Company's agent rAgent"). Company is responsible for making all arrangements with its Agent for . delivery of Deposit Shipments. Bank may accept Deposit Shipments from any person Bank believes in good faith to be Company's Agent. The delivery of a Deposit Bag to Bank or Bank's receipt for it on a manifest will not be deemed proof of Bank's receipt of the contents listed on the deposit slip contained in the Deposit Bag or Company's records. Bank will have no responsibility for any Deposit Bag or its contents delivered to one of Bank's cash vaults until the Deposit Bag is accepted by Bank. in accordance with its procedures and the contents of the Deposit Bag are counted by Bank. 2.2 Delivery Procedures. In delivering a Deposit Shipment to Bank's cash vault, Company agrees to comply (and to cause its Agent to comply) with the following procedures: . Deliver Deposit Bags only at the locations, on the days, and during the hours published by Bank from time to time; Properly endorse all checks and other negotiable instruments included in a Deposit Shipment; . Use only Bank-approved Deposit Bags that are properly secured; . Specify the number of Deposit Bags belonging to Company which are included in the overall shipment delivered to Bank, as well as the contents of each Deposit Bag, on a delivery manifest, a copy of which Company's Agent will provide to Bank at the time of delivery; . Obtain the signature of Bank's employee who accepts delivery on that portion of the delivery manifest which the Agent retains; and . Retain a copy of the receipt or other document covering each Deposit Bag delivered by Company to its Agent for at least one year from the date of delivery to Company's Agent. Company agrees that Deposit Bags will be used only for the deposit of currency, coin, checks. other negotiable instruments or food coupons (collectively "items"), and will not be used in any unauthorized manner or for any unlawful purpose. As to any property other than items included in a Deposit Bag, Bank will not be deemed a bailee and will have no liability for any loss of or damage to such property which may occur. 2.3 Cut-off Time: DeDosit to Desianated Account. If a Deposit Shipment is received at one of Blink's . cash vaults on a Business Day before Bank's published "cut-off time" for that cash vault, the aggregate amount of the deposits in such Shipment will be credited on that Business Day to the account wil!l Bank specified on the deposit slip for that Shipment (the "Depository Account"). If a Deposit Shipment is received at a cash vault on a Business Day after Bank's "cut-off time," the aggregate amount of the deposits in that Shipment will be credited to the Depository Account on the next succeeding Business Day. Bank will not deposit any items received in any Deposit Shipment unless the account num~r of the Depository Account into which the deposit is to be made is specified on the deposit slip for that Shipment. Tl.f.1416 ComlllOltia' DeposjtOl"f SaMco Dawiplion (R_ &'2(03) """2of4 e e e 2.4 Processina of Deoosit Shioments. Company authorizes e.ank to open each DeJl.OSi~ Bag, ~nt the contents, credit the amount of items to the Depository Account Indicated on the deposit slip contained in the Deposit Bag ,md process any food coupons, all in accordance with Bank's customary procedures. All deposits are subject to verification, and Bank's count of the items will be conclusively deemed to be correct and complete for all purposes. No relationship of debtor and creditor will arise between Bank and Company until the count has been completed and the deposit credited to the Depository Account. Company acknowledges that it has had an opportunity to have Bank's applicable count and verification procedures explained to its representative and agrees that the same will be deemed commercially reasonable. Company understands that no photocopying or microfilming of items will be performed at any cash vault location. 2.5 Adiustment Procedures. If the aggregate amount of the items in any Deposit, Shipment, as counted by Bank, is less than that reported on the deposit slip covering that Shipment, Bank will debit the Depository Account specified on the deposit slip by such difference and report the difference to Company. If that Depository Account has an insufficient collected and available balance to cover the debit, Bank will debit any of Company's other accounts with Bank for the difference, and Company agrees to promptly reimburse Bank for the difference (or any portion thereof) for which there are insufficient available balances in Company's accounts with Bank. If the aggregate amount of the items in any Deposit Shipment, as counted by Bank, is more than that reported on the deposit slip covering the Shipment, Bank will credit the Depository Account specified on the deposit slip for the difference and notify Company of the difference. 3. Delivery and Processing of Deposit Shipments at Bank's Night Depository Locations. The following procedures will govern Company's delivery of currency, coin, checks, other negotiable instruments or food coupons (each a "Night Deposir) to Bank's night depository locations, and Bank's processing of Night Deposits. 3.1 Nioht Deoositorv Locations: Issuance of Kevs. Company may make Night Deposits to its deposit account(s) with Bank by placing the items to be deposited into disposable bags furnished by Bank (each a "Night Bag") and then placing the Night Bags in the night depository receptacle ("Night Depository") at one of Bank's branches/stores (each a .Store") listed on Bank's Night Depository Set-up Form. Each office of Company listed on the Night Depository Set-up Form will receive one key to the Night Depository at a designated Store. Company will designate in writing to Bank the individuals to receive the key for each of its offices; Bank may require such individuals to sign ,a receipt for the keys they receive. 3.2 Contents of Nioht Baos: Deoosit of Nioht Baos. Company agrees that Night Bags will be used only for the deposit of currency, coin, food coupons, checks or negotiable instruments properly endorsed by Company (collectively "items"), and will not be used in any unauthorized manner or for any unlawful purpose. As to any property other than items included in a Night Bag, Bank will not be deemed a bailee and will have no liability for any loss of or damage to such property which may occur. Each Night Bag must contain one or more deposit slips listing all the items contained in that Bag and their total dollar amount, and identifying the deposit account of Company into which the dollar amount of the deposit is to be credited (the .Designated Accounr). After each Night Bag is placed in a Night Depository, the Night Depository must be securely locked. At the time each Night Bag is placed in a Night Depository the Bag must be securely closed and placed completely in the Night Depository. 3.3 Processino of Nioht Deoosits. Bank may open each Night Bag and remove its contents without Company or any of its representatives being present. The contents of each Night Bag will be processed in accordance with Bank's standard procedures, and if placed in a Night Depository before Bank's established "cut-off time" on any Business Day, those items acceptable for deposit will be deposited into the Designated Account as of the close of business on that same Business Day. The cut-off time for deposits made through the night depository may be different from that for deposits made at the teller line. Night Deposits placed in a Night Depository after Bank's established .cut-off time" will be credited to the Designated Account on the next succeeding Business Day. Company understands and agrees that the contents of a Night Bag will not be credited to the Designated Account, nor will the relationship between Company and Bank be that of a debtor to a creditor with respect to any item in a Bag, until Bank has rM.1416 Commercial Dtpositwy SeMce Desaiplioo (Re.sed &'2(03) PI11J83of4 e e e accepted the item for deposit into the Designated Account after counting all the items in the Bag and calculating the total dollar amount of all such Items. 3.4 Countino and Adiustment Procedures. If Company's records regarding the total dollar amount of the items in any Night Bag differ from Bank's calculation of the total dollar amount of the items in the Bag, Company has the burden of proving that its records show the correct amount in the Bag or Bank's total will be accepted as final. If there is a difference between Bank's total and Company's total for the amount . of items in a Night Bag (as Company's total is shown on the deposit slip or slips in the Bag), Bank will send Company a statement indicating the amount of the difference. In the event that the difference cannot be resolved, Bank's count of the dollar amount will be conclusive and binding on Company. 3.5 Claims of Lost or Stolen Items. Company will have the burden of proving the amount of any item which it claims was lost or stolen while it was at a designated Store and that disappearance of the item occurred while it was at the designated Store. Company agrees to notify Bank immediately if Company determines that any Night Bag or any item in a Night Bag has been lost or stolen while at one of Bank's Stores. Company agrees that it will have total responsibility for each Night Bag and its contents until the Bag has dropped completely into a Night Deposijory. 4. Special Instructions. Company may submit to Bank in writing any special handling instructions it may have in connection with cash orders or deposits of items at Bank's cash vault or night depository locations. Bank may at its option accept or reject the instructions and so notify Company. Even if accepted, Bank may stop complying with the instructions upon prior notice to Company if, in Bank's opinion, continued compliance would increase Bank's costs or risks, interfere with its established or revised procedures, or diminish the efficiency of Bank's operations. Any loss attributable to increased risk resulting from a special handling procedure will be bome solely by Company. 5. Survival. Sections 1.6, 2.4, 2.5, 3.4, 3.5, and 5 will survive termination of the Service. 6. Terminology. Unless specifically defined in this Service Description, capitalized terms used in this Service Description have the meanings if any, provided in the Master Agreement for Trasury Management Services ( the "Agreemenr) , as amended from time to time. TM. i416 CommetD., Daposi/OIY SatVice Dasaiplion (R_ 6120031 PlJgII 4 of4 . . e WIRE TRANSFER SERVICES DESCRIPTION . 1. Description of the Wire Transfer Services (the "Services"). The Services will enable Company to give instructions ("Orders") to Bank to (0 transfer funds by wire from the account(s) designated in the Wire Transfer Services Set-up Forms (the "Account"), and (ii) instruct another depository institution to debit an account at that institution and transfer the funds to Bank or debit the Account at Bank and transfer the funds to that institution ("Drawdown Requests"). In this Service Description, the term "Transfer Instruction" refers to both Orders and Drawdown Requests. This Service Description is in addition to, and not in place of, any other agreement which Company may have entered into with Bank regarding Wire Transfer Instructions. Security Procedure. Company agrees that Bank may verify that Company has authorized a Transfer Instruction solely in accordance with the Wire Transfer Services Security Procedure Agreement then in effect (the "Security Procedure"). The Security Procedure will not apply to Transfer Instructions delivered to Bank in person by Company or its authorized representative. The Security Procedure will not be used to detect erroneous Transfer Instructions. Company agrees that the Security Procedure it selected is commercially reasonable and is the Security Procedure that best meets its requirements given the size, type and frequency ofthe Transfer Instructions Company will issue to Bank. Company further agrees to safeguard any number, code, password, test key, or other identifier assigned to it from discovery by any unauthorized person. If Company has chosen the telephone verification option and the individual contacted by Bank identifies himself or herself as an individual designated by Company and confirms that the Transfer Instruction was sent to Bank by Company, Bank will be conclusively deemed to have complied with the telephone security procedure. If Company becomes aware of a breach of the Security Procedure, or suspects that a breach may occur, it will immediately notify Bank in a time and manner that gives Bank a reasonable opportunity to act on it. 3. Identify Authorized Persons. Company will noiify Bank in writing of the identity of each individual authorized to receive information regarding the Security Procedure. Company will promptly notify Bank in writing of any change in an authorized individual. Company's notice will be binding on Bank if it is received in a time and manner that gives Bank a reasonable opportunity to act on it. Bank will be fully protected in relying on Company's notices. Bank may, but will not be required to, electronically recOrd any oral communication that it receives from Company. . 2. 4. Authorization to Pay. Company authorizes and instructs Bank to pay any Order that complies with the Security Procedure. For each Transfer Instruction executed by Bank in accordance with the terms.of this Service Description, Company authorizes Bank to debit or credit; as applicable, the account specified in the Transfer Instruction (and if no account is specified, the Account or any other account of Company at Bank or an affiliate) even if a debit results in an overdraft. Company agrees tei have sufficient available funds in the account specified in the Transfer Instruction (and if no account is specified, the Account) at the time of each debit. Finality of Transfer Instructions. A Transfer Instruction will be final and will not be subject to stop payment or recall, except that Bank may, at Company's request, make an effort to effect such stop payment or recall. In that case, Bank will incur no liability for its failure or inability to do so. 5. TM-1440 Wire Transfer Service Description Revised 1/4/05 Page 1 of3 A-14 e e e 6. Inconsistency of Name and Number. If a Transfer Instruction describes the person to rec:eive payment inconsistently by name and account number (i) payment may be made on the basIs of the account number even if the account number identifies a person different from the named person or (i1) Bank may in its sole discretion refuse to accept or may retum the Transfer Instruction. If a Transfer Instruction describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If a Transfer Instruction identifies a nonexistent or unidentifiable person or account as the beneficiary or beneficiary's account, Bank may in its sole discretion refuse to accept or may return the Transfer Instruction. 7. Company's Duty to Exercise Ordinary Care.' Company will exercise ordinary care to determine whether a Transfer Instruction accepted by Bank was either erroneous or not authorized and to notify Bank of the facts within a reasonable time not exceeding fourteen (14) days after Company has received notification from Bank that the Transfer Instruction was accepted or that the Account was debited or credited with respect to the Transfer Instruction, whichever is earlier. Company will be precluded from asserting that Bank is not entitled to . retain payment for a Transfer Instruction unless Company objects within the fourteen (14) day period. 8. Infonnation Requests. Company may request the issuance of tracer messages concerning uncompleted transfers. Company will provide Bank with any transaction information it considers necessary to process Company's inquiry. In addition to Bank's fees for this service, Company will reimburse Bank for any charges it incurs from third parties in connection with Company's requested tracer messages. 9. International Wire Transfers. A Transfer Instruction expressed in U.S. Dollars will be sent in U.S. Dollars. Company may request that prior to executing an Order or outgoing Drawdown Request, Bank converts the amount to be transferred from U.S. Dollars to the currency of a designated foreign government or intergovernmental organization ('Foreign Currency") at Bank's selling rate for exchange in effect on' the date the Order or outgoing Drawdown Request is executed by Bank. If the financial institution designated to receive the funds does not pay the beneficiary specified in the Order or outgoing Drawdown Request and it is payable in Foreign Currency, Bank will not be liable for a sum in excess of the value of the Order or outgoing. Drawdown Request after it has been converted from Foreign Currency to U.S. Dollars at Bank's buying rate for exchange at the time the cancellation of the Order or outgoing Drawdown Request is confirmed by Bank. 10. Responsibility of Bank. Bank is only responsible for making a good faith effort to execute Company's Transfer Instructions. Transfer Instructions may be sent by wire, telegraph, telephone, cable or whatever other transmission method Bank considers to be reasonable. Orders and outgoing Drawdown Requests may be transmitted directly to the beneficiary's financial institution, or indirectly to the beneficiary's financial institution through another financial institution, government agency or other third party that Bank considers to be reasonable. Bank may execute an incoming Drawdown Request that conforms with instructions it receives through Fed Wire, SWIFT or any other funds transfer system, provided such instructions are not inconsistent with instructions contained in an applicable Set-up Form. The authority to execute the incoming Drawdown Request shall continue until Bank receives express written notice from Company that such authority is revoked. Bank will not be liable for any third party's failure to or delay or error in processing a Transfer Instruction. If the beneficiary bank does not pay the beneficiary specified in the Transfer Instruction, a refund will be made only after Bank has received confirmation of the effective cancellation of the Transfer Instruction and Bank is in free possession of the funds debited or earmarked in connection with the Transfer Instruction. If TM-l440 Wire Transfer Service Description ReVIsed 1/4105 .. PIIlJIl2of3 e e e Bank is notified that it did not transfer the full amount stated in a Transfer Instrudion, Bank's sole obligation will. be to promptly execute a second Transfer Instruction in the amount of the stated deficiency. If Bank executes a Transfer Instruction in excess of the amount stated in the Transfer Instruction, to the extent that the originator does not receive the benefit of the Transfer Instruction, Bank will only be liable for any loss of the principal amount transferred in excess of the amount stated in the Transfer Instrudion. Additionally, Bank will be liable for the amount of interest the originator has lost due to the transfer of the excess amount, computed at the then current Federal Funds rate. However, Bank's liability for loss of interest will be limited to twenty (20) calendar day's interest. This section sets forth Bank's complete liability for a Transfer Instruction issued or received under this Service Description. IN NO EVENT Will BANK BE lIABLE FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY IF THE TRANSFER INSTRUCTION IS EXECUTED BY BANK IN GOOD FAITH AND IN ACCORDANCE WITH THE TERMS OF THIS SERVICE DESCRIPTION. As used in the Master Agreement for Treasury Management Services (the "Agreement"), with respect to the Services, "negligence" means a material failure to use the degree of care used under similar circumstances by a national bank having a similar volume of funds transfers and similar number, size and diversity of funds transfer customers. 11. Governing Law; Rules and Regulations. Bank's and Company's rights and obligations regarding Transfer Instructions will be governed solely by this Service Description and the other Service Documentation and, to the extent applicable, federal law and the law of the state in which Bank's principal office is located, as amended from time to time. Article 4A of the Uniform Commercial Code will, to the extent possible, be applied by analogy to any Drawdown Requests. All Transfer Instructions will also be subjed to the rules and regulations of any funds transfer system used by Bank as amended from time to time. If a Transfer Instrudion is to be processed in accordance with a statute, rule, regulation or license of the United States, or any federal agency, the Transfer Instrudion will be governed by that statute, rule, regulation or license. . 12. Notices; Receipt of Confirmations. In addition to the notice provision set forth in Section 10.6 of the Agreement, the following will apply: A bank statement showing a Transfer Instrudion sent by first class mail to Company's last address as shown in Bank's records and not returned will be conclusively presumed to have been received by Company seven (7) days after it is sent. 13. Agents. Bank may use agents of its choice to perform any of its obligations. 14. Survival. Sections 4, 7, 9, 10 and 14 will survive t!!rmination of the Services. 15. Terminology. Unless specifically defined in this Service Description, terms used in this Service Description have the meanings, if any, provided in Article 4A of the Uniform Commercial Code, as amended from time to time. Each Bank request, instruction and set-up form completed by or on behalf of Company in connection with the Services will be deemed to be a "Set-up Form" 'as that term is used in the Service Documentation. TM-1440 Wire Transfer Service Description Revised 1/4105 Page 3of3 e e e . V.~E<] ! S, FfU~C 0 NCE OF SERVICES I Part I - Certification. )t Ne"w Agreement II o Designation of Sweep Option '" checked, complete Part II, below.) Each person signing this Acceptance of Services ("Acceptance") certifies that: (a) the company identified in the signature block of this Acceptance ("Company") has received and agrees to be bound by the Service Documentation, as defined in the Master Agreement for Treasury Management Services between Company and Wells Fargo Bank, N.A. ("Bank"), and any Sweep Option Company has designated in Part II of this Acceptance; (b) he or she has full authority to execute this Acceptance on behalf of Company, to enter into other agreements with Bank for Treasury Management services now or hereafter offered by Bank (each, a "Service"), and to amend, terminate or otherwise act on behalf of Company with respect to each Service; and (e) Company's use of any Service, including without limitation each Service that Company commences using after the Effective Date of this Acceptance, confirms Company's agreement to be bound by the Service Documentation relating to that Service. I Part II - Sweep Option. I A. DESIGNATION OF WELLS FARGO STAGECOACH SWEEP'" OPTION. Company designates the following Sweep Option (check one box only): DWells Fargo Stagecoach Sweep, Preferred Option with secondary Wells Fargo Stagecoach Sweep, Repurchase Agreement. DWells Fargo Stagecoach Sweep, Preferred Option. D Wells Fargo Stagecoach Sweep, Repurchase Agreement with secondary Wells Fargo Stagecoach Sweep, Preferred Option. DWells Fargo Stagecoach Sweep, Repurchase Agreement. ~ Wells Fargo Stagecoach Sweep, Money Market Fund. (Check one box only.) D California Tax Free Money Market Mutual Fund-Class A - Fund 29. ~ Treasury Plus Money Market Fund-Class A - Fund 453. D National Tax-Free Money Market Fund-Class A - Fund 452. kr:~~61~~~~nee of Service~ with Alternative ~neYJ..1l!r!<~t SWel!I1F\!!!dS Page 1 of 3 A-tS e e e lB. ADDITIONAL INFORMATION. . Checking Account Number: . Credit Sweep Option: 0 Yes ,)(NO LOC Number: . Statements and/or Confirmations will be sent to Company by electronic means uniess otherwise requested by Company. Electronic means include Bank's Commercial Electronic Office@. facsimile and/or Secure E-Mail. I Part III - Signature. II Agreed To and Accepted By: Company: By: Name: Tille: Effective Date: TM-1526 Acceptance of Services with Alternative Money Market Sweep Funds Revised 11-22-06 Page 2 of 3 ., e e e .. . '." '. -.. .' ". '." ., ", w.. Ie 2006 Wells Fargo Bank, NA All rights reserved. , . .v, ,.....,.."L,',.,J.~i " ,.' - ~', ~.' .,'" - ...",; .': -~ ';' .'. ..'- . '., . -. \.. . .' TM-1526 Acceptance of Services with A~emative Money Markel Sweep Funds Revised 11.22-06 Page 3 of 3