HomeMy WebLinkAbout35-City Treasurer CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL a- M&NAL
From: DAVID C. KENNEDY Subject:
CITY TREASURER Resolution of the Mayor and
Common Council of the City of San
Dept: CITY TREASURER Bernardino authorizing the execution
of an Agreement between the City of
Date: August 8, 2007 San Bernardino and Wells Fargo
Bank N.A. for the provision of
banking services and the deposit of
monies
M/CC Date: 09/04/2007
Synopsis of Previous Council Action:
July 24, 2000 Resolution #2000-228 adopted
July 18, 2005 Resolution #2005-238 adopted
June 19, 2006 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 c1
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: -o zd0 7- d
Rf/ 707
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
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.
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 N.A.
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:
Adopt Resolution.
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1
2
3
4 RESOLUTION NO.
5 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
6 BETWEEN THE CITY OF SAN BERNARDINO AND WELLS FARGO BANK N.A.
7 FOR THE PROVISION OF BANKING SERVICES AND THE DEPOSIT OF MONIES.
8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
9
10 SECTION 1. That the City Manager of the City of San Bernardino is hereby
11 authorized and directed to execute on behalf of said City an agreement with Wells Fargo Bank
12
N.A. for the provision of banking services to the City of San Bernardino, and the deposit of
13
14 monies, a copy of which is attached hereto as Attachment "A" and incorporated herein by
15 reference, and
16 SECTION 2. That the authorization to execute the above referenced agreement is
17 rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
18 of this resolution.
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23
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25
26
27
28 N0.
ql, 3101
1
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
3 BETWEEN THE CITY OF SAN BERNARDINO AND WELLS FARGO BANK N.A.
FOR THE PROVISION OF BANKING SERVICES AND THE DEPOSIT OF MONIES.
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5
6 and Common Council of the City of San Bernardino at a meeting thereof, held on the
7 day of , 2007, by the following vote, to wit:
8
9 Council Members: AYES NAYS ABSTAIN' ABSENT
10 ESTRADA
11
BAXTER
12
BRINKER
13
14 DERRY
15 KELLEY
16 JOHNSON
17 MCCAMMACK
18
19
20 Rachel Clark, City Clerk
21 The foregoing Resolution is hereby approved this day of ,
2007.
22
23
PATRICK J. MORRIS, Mayor
24 City of San Bernardino
25 Approved as to form:
26 JAMES F. PENMAN,
City ttorney
27
28
SERVICES AGREEMENT
�- "'ELLS 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").
NNATNESSETH :
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. 'VHEREAS, 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.
NOVI', 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. Scope 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.
IF'C'ALKINS Algreements%k ells Fargo Banking Agr 2007 Final«pdj
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 ever}, 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 Agreement. 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. Delegation and Assignment. 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 Intentionallv 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 lacy from such requirement or requirements.
V KINS Agreements%�cll;Fat 20 Banking.Agr 20o'Final-kNpd] 2
2.0. COMPENSATION AND BILLING
2.1. Compensation.Except as provided herein,BANK shall be paid as set forth in Exhibit
A-1 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
shall be based on the total of all BANK's services which have been completed to CITY's sole
satisfaction.CITY shall pay BANK's invoice within forty-five(45)days from the date CITY receives
said invoice. The invoice shall 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 shall identify the number of the authorized change order,
where applicable, on all invoices.
2.4. Records and Audits. Records of BANK's services relating to this Agreement shall
be maintained in accordance with generally recognized accounting principles and shall be made
available to CITY for inspection and/or audit at mutually convenient times for a period of three(3)
vears from the Effective Date.
3.0. TERM AND NOTIFICATION.
3.1. Term. This Agreement shall commence on the Effective Date and continue through
the completion of services as set forth in Exhibit "A 1-15," 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 oftermination,
BANK shall be paid the reasonable value of services rendered to the date of termination.
3.3 Documents. In the event of termination of this Agreement, all documents prepared
by BANK in its performance of this Agreement including,but not limited to, finished or unfinished
background investigations, shall 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 shall beat CITY's sole risk and without liability or legal
expense to BANK.
ALKINS Agreements Wells Fargo Banking.Agr 2007.Fina1.wpd] 3
4.0. INSURANCE
4.1. Minimum Scope and Limits of Insurance. BANK shall obtain and maintain during
the term of this Agreement all of the following 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 Dollars ($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 Dollars(S 1,000,000.00),combined
single limits, per occurrence and aggregate.
(c) Workers' compensation insurance as required by the State of California.
4.2. Notice. BANK will act reasonably to provide prompt notice to CITY if any insurance
required hereunder is terminated, materially changed. reduced or cancelled.
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 anyway,the
indemnification provision contained in this Agreement, or the 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 shall prevail over any
inconsistent provision in any other contract document appurtenant hereto,including exhibits to this
Agreement.
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 shall 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 if such communication is sent through regular United
ii-.(ALK!A�A\nccmenti b�eli5 Fargo Banking.Asr'00-Final.npd] 4
States mail.
IF TO BANK: IF TO CITY:
Mr. Mark C. Hewlett CITY MANAGER
Vice President/Sr. Relationship Manager City of San Bernardino
Wells Fargo Bank 300 North "D" Street
707 Wilshire Blvd., I I"' Floor San Bernardino, CA 92418
Los Angeles, CA 90017 Telephone: (909) 384-5122
Telephone: (2 13) 614-22')4 Fax: (909) 384-5138
Facsimile: (213) 614-3555
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 Citv Attornev 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.
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 of laws pertaining to conflict of laws.
In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that
the sole and exclusive venue shall be a court of competent 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.
5.6. Indemnitv. BANK shall protect,defend,indemnify and hold harmless CITY and its
elected and appointed officials,boards,commissions,officers,attorneys,agents and employees from
anv and all Losses and Liabilities arising from or in any way related to BANK'S acts,omissions and
obligations 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
anv way related to CITY's acts.omissions and obligations under this Agreement,except to the extent
such Losses and Liabilities are caused by the gross negligence or willful misconduct of BANK.
[F:\CALKLNS\.4greements\wells Fargo Banking.Agr 20071inal.wpd] 5
5.7. Independent 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 of wages,
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 Nvorkers'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
BA'v`K.
5.S 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 (1) 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 orparticipating in making decisions that
v,ill 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 Employment. 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 Partv Beneficiary 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:CALKIN'S Agreements%%ells Fargo Bankins.Azr 200'7.Final Apd, 6
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 of this
A LYreement.
5.14. Amendments. Only a writing executed by all of the parties hereto or their respective
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 anv 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 of the
party against whom enforcement of a waiver is sought. The waiver of any right or remedy with
respect to an- occurrence or event shall not be deemed a waiver of any right or remedy with respect
to am, other occurrence or event, nor shall any waiver constitute a continuing waiver.
5.16. Severability. 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 of the offending
provision in any other circumstance, and the remaining provisions of this Agreement shall remain
in full force and effect.
5.17. Counterparts: 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 a--reement.
5.18. Corporate Authority. 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 of this Agreement.
[F:.C'ALKI\J agreements Wells Fargo Banking.Asir'_007Final%%pd] 7
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, WELLS FARGO BANK N.A.
A municipal corporation
r _ ,
Fred %Vilson, City Manager Signature V
Name and Title
APPROVED AS TO FORM:
JAMES F. PENMAN,
City Attorney
I F:C'ALKINS Agreements Wells Fargo Banking.Agr 2007.Final.%%pdj �
CITY OF S AN- BERNARDINO
U.BANKING SERVICES BID FORM
Proprietary and Confidential City of San Bemardino
MONTHLY ESTIMATED
•
VOLUME
NT SERVICES
GENERAL CHECKING •
a. DDA Maintenance checks truncated 8' $8.0000' S64.W
b. DDA Maintenance checks returned 1' $8.00001 $8.00'
c FDIC/FICO per $1,000 1200 $0.0118' $14.20
d Sweep Maintenance 1 $0.0000 $0.00
e. Zero Balance Account-Parent 1j $10.0000 $10.00
f. Zero Balance Account-Subsidiary I T $10.0000' $70.00
_ g. On-line Account Analysis 11 $0.0000' $0.00
h. Electronic Credits Received I 430 $0.2000 $86.00
1 Electronic Debits Received 1751 $0.0000 $0.00
_ Transfers to LAIF 3 $6.0000 $18.00'
k. Transfers from LAIF 31 $6.0000' $18.00
I. DDA Swee Maintenance 1 $0.0000' $0.00!
Subtotal $288.201.
BILL PAY SERVICE (EDI)
i
a. Monthly Maintenance 11 $50.0000' $50.00;
b Per Data Transmission 201 $5.0000' $100.001
c. Per Item Processed 1800; $0.06501 $117.001
Subtotal $267.001
CASH VAULT SERVICES I
a Account Maintenance 1' $0.0000' $0.00;
b Deposits Posted 100! $1.1000, $110.00'
d. Currency Deposited per$1,000 636 S0.0010' $0.641
d Coin Deposited-Partial.Mixed Bags 61 $5.0000! $30.00
e Deposit Adjustments I 1 55.0000 $5.00'
f. Checks Deposited-Unencoded 2001 S0.0500' $10.00
g Checks Deposited-Pre-encoded j
On-Us 47001 $0.0300; $14100'
Local Clearinghouse 17500 $0.0300, $525.005
Regional 105001
$0.0400' $420.06
Transit 4100 $0 04001 $164.00
Encoding Rejects (Excess) 250 $0.5000, $125.06
h Return Item Processing
$O.00i
Maintenance 1; $25.0000; $25.00'
Checks Recleared 1501 $1.00001 $150.00'
Returned Items 75 $1.2500 $93.75;
Returned Items Faxed-Per Item 751! 50.00001 $000'
Subtotal $1,799.39
DO NOT DISCLOSE-CONFIDENTIAL TRADE SECRET
•
CITY OF SAN BERNARDINO
Proprietary.and Confidential Citv of San Bernardino
ACCOUNT FULL • • •
a Monthly Maintenance I 5: 525.00' $125.00
b Per ARP Check Paid and Reconciled 27001 $0.0500 $135.00
c Payee Validation Per Item 2700', 50.0200 554.00
d Exception Items Reported 301 $0.6667 $20.00
e Exception Items Imaged 30 $1.0000 $30.00
f Exception Items Returned 31 $0.0000 $0.00
g. Check Issue File Transmissions 4' $0.0000 $0.00
h. Per Item Transmitted 3500' $0.0500 $175.00
Manual Issue-Per Item 20' S0.0500' St00
i Per Monthly CD ROM 2 $25.0000 $50.00
k Check Images on CD-ROM 3000' $0.0400 $120.00
1. Stop.Payments-PC 3' $5.0000 $15.00
m Stop Payments-Operator Assisted a 1 S15.0000 $15.00
m Optional Reports 15 $5.0000' $75.00..
Subtotal $815.00
INFORMATION REPORTING-WEB
a Prior Day Maintenance I 81 S25.0000,
b Prior Day Items Reported/Accessed 3500' $0.0600 $210.00'
c Event Messaging Per Item 300' $0.2500' $75.001'
Subtotal $485.00'
AUTOMATED •
a ACH Maintenance (Web) 31 $15.00001 $45.00
b. Input-Batch Releases 20' $3.0000 $60 00'
c. ACH-One Day Items 25 $0.0600 $1.50'
d. ACH-Two Day Items 4000 $0.0200, $80.00
e. ACH NOC Mailed Advice 1
$2.0000 $2.00'
h. ACH Returned Items 100 S2.0000' $20000'
i. ACH Returns (Mail) j 10' 52.0000', $20.00
S u btota l $408.501
WIRE TRANSFERS-PC
a Monthly Maintenance 1' $0.0000 $0.00i
b Outgoing Wires-Repetitive 18' $6.0000; $108.0D1
c Outgoing Wire-Non-Repetitive 1''' $6.00001 $6.00-
d Incoming Wires 13: 0000j $78.00i
Subtotal 1 $192.00'
WITHHOLDINGS-PC TAX
a. Monthly Maintenance 2' S5.0000! $10.00'
b State and Federal Taxes 10' $6.0000, $60.00
c. Tax Receipts 10 $1.0000 $10.00',
Subtotal $80.00'
DO NOT DISCLOSE-CONFIDENTIAL TRADE SECRET
CITE' OF SA'` BERNARDINO
Proprietam, and Confidential City of San Bemardino
MERCHANT BANKCARD
a Visa Discount Rate-Non-qualified $65,000 Please see Tab Q
b Visa Transactions-Per Item 625' Please see Tab Q
c MC Discount Rate-Non-Qualified $35,000 Please see Tab Q
d. MC Transactions-Per Item 275' Please see Tab Q
Account Maintenance-Merchant IDs 10' Please see Tab Q
Subtotal
OTHER
i
TOTAL MONTHLY BANK FEES $4,335.09
j
Other Information
Earnings Credit Rate for October 2006: 4.82% '
Uncollected Funds Rate (%): P+2%
Overdraft Rate (%): P+2%
i
Mark-Up on Third-Party Items (%): 0
Fixed Pricing Guarantee (#of years): 5 years
Bank Information
Name of Bank Officer Mark Hewlett
i
i
Signature of Authorized Bank Officer
Contact Tel Number 213-614-2234
Submitted By (Name of Bank): Wells Fargo Bank
i
I
i
DO NOT DISCLOSE— CONFIDENTIAL TRADE SECRET
1h
MASTER AGREEMENT FOR TREASURY MANAGEMENT SERVICES
The Service Documentation described below contains the terms under which Wells Fargo provides treasury management
services ("Services"). The Wells Fargo bank through which the Services will be provided ("Bank") and the Company to which
the Services will be provided are identified in the Acceptance of Services ("Acceptance").
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 ("Master Agreement").
1.4 The account agreement for the business or commercial deposit account(s) (each, an "Account") 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.
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 conflict among the documents that make up the Service Documentation, the
documents will govern in the order set forth above. Company acknowledges receiving a copy of the Service
Documentation for each Service it requested when it entered into this Master Agreement.
2. Services. Bank and Company will agree upon the Service(s)to be provided.
3. 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 after the change becomes
effective, it will be bound by the change.
4. Term and Termination. Company and Bank agree that the Service Documentation shall be effective for the period
commencing Lam, 2007 through [1, 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 Term
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 if 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 ability 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-1450 revised4 12005 Page 1 of 4
A ^\
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 shall 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 shall apply payments and other
reductions of amounts owed first to unpaid interest and then to other fees and charges.
6. 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
("Confidential Information"). Bank or its vendor will remain the sole owner of all such Confidential Information, and
Company will 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 maintain 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, promptly 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 result 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, information 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 Provider"), 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 ("VAN"), 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 Software 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 to time establish and make available to Company; c) Bank has reason to believe may not
been duly authorized, should not be honored for its or Company's protection, or involves funds subject to a
hold, dispute, restriction or legal process that prevents their withdrawal; or d) would possibly result in Bank
violating any applicable rule or regulation of any federal or state regulatory authority including without
limitation any Federal Reserve risk control program or guidelines such as the limitations on Bank's intra-day
net funds position.
tXaster Agreement TM-1450 revised4 12005 Page 2 of 4
9.3 Company shall promptly furnish written proof of loss to Bank and notify Bank if it becomes aware of any third
party claim related to a Service. Company shall cooperate fully (and at its own expense) with Bank in
recovering a loss. If Company is reimbursed by or on behalf of Bank, Bank or its designee will be
subrogated to all rights of Company.
9.4 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 one (1) year from the date of
the act or omission or in the case of a check from the date the check was first paid or returned by Bank.
9.5 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.
9.6 Except in the case of Bank's gross negligence or intentional misconduct, Company shall indemnify and hold
Bank, its directors, officers, employees and agents harmless from all losses or damages that arise out of a)
the performance of a Service in accordance with the Service Documentation including without limitation 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
9.7 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 were
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 without limitation court costs and attorneys'
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 parry and regardless of the form of the claim or
action.
10. General.
10.1 The Service Documentation will be governed 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 deemed
modified and applied in a manner consistent therewith, and Bank will incur no liability to Company as a
result of the inconsistency or modification and application. If any portion of the Service Documentation is
deemed unenforceable or invalid, it 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 promptly 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.
0 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 attention of such manager. Any notice from Company will
Master Agreement TM-1450 revlsed4 12005 Page 3 of 4
be effective when actually received by Bank. Bank will be entitled 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 after receipt of any notice to act on it.
10.7 All uses of the Services through Company's ID 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 protect 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 are 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.
10.9 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.
Master Agreement TM-1450 revised4 12005 Page 4 of 4
WELLS
FARGO
Commercial
Account Agreement
Effective May 1, 00
r
Commercial Account Agreement
Effective May 1, 2005
Table of Contents
I. Terms Applicable to All Commercial Deposit Accounts ....................5
Introduction
Defined Terms
Affiliate...................................................................................................................................5
AuthorizedSigner...................................................................................................................5
BusinessDa}...........................................................................................................................5
CollectedBalance...................................................................................................................5
CommercialDeposit Account................................................................................................5
DepositFloat..........................................................................................................................5
DepositedItem.......................................................................................................................6
InvestableBalance..................................................................................................................6
Item.........................................................................................................................................6
LedgerBalance.......................................................................................................................6
Overdraft................................................................................................................................6
PaperItem..............................................................................................................................6
Service....................................................................................................................................6
Statements and Other Account-Related Information
Mailing Statements and Other Account-Related Information to Company...........................8
Company's Obligation to Review Statements and Other Account-Related Information
and to Notify Bank of Errors..................................................................................8
Returned.Unclaimed Statements or Other Account-Related Information.............................8
Address Changes for Statements for Company's Account and Other
Account-Related Information.................................................................................9
Noticesand Other Mail.................................................................................
Electronic Communications...................................................................................................9
I
Fraud Prevention
Protection Against Unauthorized Items..................................................................................9
Lost or Stolen Paper Items;Unauthorized Items....................................................................9
Preventing Misuse of Company's Account..........................................................................10
Claim of Unauthorized Transactions; Bank's Rights and Liabilit
Investigation b} Bank;Company's Agreement to Cooperate...............................................10
!! Standard of Care....................................................................................................:...............1 I
Limitation of Liability;Indemnification................................................................................I 1
AdverseClaims......................................................................................................................11
LegalProcess.........................................................................................................................I l
..Freezing..Company's Account............................................................................................11
ForceMajeure........................................................................................................................12
Company's Insurance Coverage............................................................................................12
Substitute Checks
Deposits to Company's Account
General ...................................................................................................................................12
CollectionItems.....................................................................................................................12
Endorsements.........................................................................................................................12
Material Appearing on the Back of Items.Check Legends...................................................13
Breachof Warranties...... ......................................................................................................13
When Deposits are Credited to Company's Account............................................................13
Useof Funds.........................................................................................................................13
Depositsat Affiliates.............................................................................................................13
Depositsof Non-U.S. Items..................................................................................................13
Acts and Omissions of Other Financial Institutions.............................................................14
DepositedItems Returned....................................................................................................14
Direct Deposits Returned by Bank......................................................................................14
Reconstructing Lost or Destroyed Deposited Items............................................................14
! Withdrawals from Company's Account
Determining Company's Account's Balance;Debiting Company's Account.....................14
Orderof Posting...................................................................................................................15
Paper Items Presented Over-the-Counter for Payment by a Non-Customer.......................15
LargeCash Withdrawals......................................................................................................15
Withdrawalsat Affiliates.....................................................................................................15
Items Resulting From Company's Disclosure of Company's Account Number................15
Missing Signatures:Alterations: Forgeries.........................................................................15
Dates and Special Instructions on Paper Items...................................................................16
Facsimile or Mechanical Signatures...................................................................................16
ConsumerACH Debit Entries............................................................................................16
2
Stop Payment Orders; Notices of Post-Dating
General ..................................................................................................................................16
Content of Stop Payment Order............................................................................................16
Effective Period of Stop Payment Order;Renewal:Revocation..........................................16
Liability to Holder in Due Course........................................................................................17
Paper Items Paid Over Valid Stop Payment Orders.............................................................17
Overdrafts; Security Interest; Bank's Right to Setoff
Overdrafts and Insufficient Funds........................................................................................17
Security Interest:Bank's Right to Setoff..............................................................................17
Bank Fees and Expenses
General..................................................................................................................................18
Payment of Bank Fees and Expenses;Finance Charges.......................................................18
EarningsAllowance..............................................................................................................18
Checking Subaccounts
Miscellaneous
Acceptable Form of Paper Items;Document and Image Quality.........................................19
Closing Company's Account................................................................................................19
ContractLanguage................................................................................................................19
CreditReports.......................................................................................................................19
Disclosure of Information.....................................................................................................19
Dormant and Unclaimed Accounts.......................................................................................20
Entire.Agreement:Headings:No Third Party Beneficiar....................................................20
Laws Governing Company's Account..................................................................................20
Minimum Balance Requirements:Other Restrictions..........................................................20
Modification of Agreement:Account Conversion...............................................................20
Monitoring and Recording Communications.......................................................................21
NoFiduciary Relationship...................................................................................................21
Reliance on Bank's Records................................................................................................21
ReorderingChecks...............................................................................................................21
Transferring an Interest in Company's Account..................................................................21
II. Additional Terms Applicable to All Commercial
Interest-Bearing,Savings and Time Accounts ................................21
Interest-Bea ring Accounts
Variable/Fixed-Rate Accounts..............................................................................................21
Method Used to Calculate Earned Interest...........................................................................21
InterestAccrual ....................................................................................................................21
Compoundingand Crediting................................................................................................22
TargetBalance Accounts.....................................................................................................22
InterestAdjustments............................................................................................................22
Tax Identification Number Certification.............................................................................22
3
Commercial Savings Accounts
Banks Right to Require Notice.............................................................................................22
Limitations on Transfers from Company's Savings Account...............................................22
Commercial Time Accounts
General ...................................................................................................................................23
CertificatedTime Accounts..................................................:................................................23
MaturityDate........................................................................................................................23
TimeRequirements...............................................................................................................23
Pavmentof Interest...............................................................................................................23
AdditionalDeposits..............................................................................................................23
Withdrawal of Interest Prior to Maturity...............................................................................23
RenewalPolicies...................................................................................................................23
III.Funds Transfers.............................................. ..............................24
General..................................................................................................................................24
Noticeof Receipt of Funds...................................................................................................24
Reliance on Identification Numbers.....................................................................................24
Duty to Report Unauthorized and Erroneous Fund Transfers.............................................24
ErroneousPayment Orders..................................................................................................24
Automated Clearing House(ACH)Transactions................................................................24
IV. Selected Services ................................................................................25
ATMDeposit Service..........................................................................................................25
Treasury Express Deposits Service......................................................................................25
4
I. Terms Applicable to All Commercial Deposit Accounts
Introduction
In this Commercial Account Agreement ("Agreement"). "Company' refers to the owner
or accountholder 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 following 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) the funds availability policy, (iv) the privacy
policy.(v)the rate sheets for interest-bearing accounts,each as modified by Bank from time
to time, and (vi) any additional disclosures regarding Company's Account that Bank may
provide to Company. Company is responsible for ensuring that each Authorized Signer is
familiar with this Agreement. Unless Company has instructed Bank in writing to the
contrary, 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 signature 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.
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.
Affiliate.
An "Affiliate" is a bank that is, directly or indirectly, a wholly or substantially owned
subsidian of Wells Fargo&Company.
Authorized Signer.
An "Authorized Signer" is a person who has Company's actual or apparent authority to
transact business on Company's Account(s), whether or not such person has signed the
signature card or other documentation 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 even da} except Saturdays.Sundays and federal holidays.
Collected Balance.
The"Collected Balance"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 limited 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 Float.
"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
type of account. Company's Account has not yet been credited for purposes of calculating
the Collected Balance.
s
Deposited Item.
A"Deposited Item" is an Item(including a non-U.S. Item)that Bank cashes or collects for
Compan% 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 Collected Balance that Bank is required by law to hold in reserve at a
Federal Reserve Bank and(ii)other adjustments.
Item.
An "Item" includes a check, substitute check, purported substitute check, electronic item.
draft, demand draft. preauthorized 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 written 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 posted.
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
(Intentionally Omitted)
6
[Intentionally Omitted]
7
Statements and Other Account-Related Information
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
information regarding Company's Account or any Service (collectivel}. "Account-Related
Information")to the postal or electronic address reflected 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 to hotifv Bank of Errors.
Company agrees to promptl 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. Compare 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 Account-
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 b�, (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
timeframes 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 correct, 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 notifi•Bank of an unauthorized transaction on
Company's Account within thirty (30) 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 later than required by this
subsection. Bank may assert, at Company's request and on Company's behalf, any claim
against a third pan 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 discontinue sending statements
for Company's Account and other Account-Related Information to Company until
Company provides a valid address to Bank: (ii) Bank may destroy statements for
Company's Account
8
and other Account-Related Information that are sent to Company and returned to Bank as
undeliverable: and (iii) if Bank holds the statement for Company's Account or other
Account-Related Information for Company 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
Information.
Compan} ma% 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 Information 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 part\ in the business of providing correct address information that the address in
Banks 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 opportunit} 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
an\ one of them (unless Company has otherwise instructed Bank in writing). Company
assumes the risk of loss in the mail. Any notice Bank sends Company will 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 anv information that the laws governing Company's Account require be
sent to Company in writing, provided such electronic communication does not violate 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 Items.
Company acknowledges that there is a growing risk of losses resulting from unauthorized
Items. Bank offers Services that provide effective means for controlling the risk from
unauthorized Items.These Services include:
• Positive Pay.or Positive Pay with Pavee Validation.or Reverse Positive Pay
(each offered bN Bank in conjunction with Bank's Account Reconciliation Plan
Service).
• ACH Fraud Filter:and
• Pavment Authorization Service.
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 after the date of this
Agreement), and Company either decides not to use the recommended Service 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 applicable Service Description or applicable
documentation.
Lost or Stolen Paper Items; Unauthorized Items.
If an} 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
r
to prevent loss. Bank will be relieved of any liability for such Items. Upon receipt of any
without such notice. Bank may at its sole discretion and any liability 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 subsequently has
instructed Bank to honor such an Item); or(iii)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 part), 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 receive any regularly scheduled deposit or if a
regularly scheduled payment is not made for Company due to Company's failure to notif}
that third pam 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 arty 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 all 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
his/her name can be removed from all signature cards and Online Banking access,
and any Cards that Bank has issued to him/her can be cancelled.
• Do not sign blank Paper Items.
• Obtain insurance coveraee for these risks.
Claim of Unauthorized Transactions;Bank's Rights and Liabilitv j
Investigation by Bank;Company's Agreement to Cooperate.
Bank shall investigate any transaction Company has reported 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 report;(iii)complete and
return to Bank an} 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
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,
"ordinan care" does not require Bank to examine the Item. In all other cases, "ordinary
care" requires only that Bank follow standards that do not van, 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 otherwise 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
party to this Agreement or its respective directors, officers, employees, or agents be
liable to the other party for any special, consequential, indirect or punitive damages,
whether any claim is based on contract or tort or whether the likelihood of such
damages was known to either party. The foregoing limitation of liability will not apply
where express]\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 party. Except to the extent that Bank fails to 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 attorneys' 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 am 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. without
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 Account: (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 Companys 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 an 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 pan 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.
Il
Force Majeure.
Neither party to this .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 act of God or of any public enemy,hostilities, war(declared or undeclared),
guerilla or terrorist activities, act of sabotage, blockade, earthquake, flood, landslide,
avalanche, tremor, 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 transmission failure or any cause beyond
the control of either pam.
Company's Insurance Coverage.
Man businesses earn. special insurance for employee fraud/embezzlement. 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 lay.. 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 front 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.
Compam agrees Company will not transfer a substitute check to Bank, b. deposit 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
),erified. Bank may reverse or otherwise adjust any credit Bank believes it has erroneously
made to Company s.Account at any time without prior notice to Company.
Collection Items.
Bank ma}. in its sole discretion and with notice 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 credits Company's Account for the Item when Bank receives payment for
the Item. If the Item is returned unpaid.Bank will return the Item to Company.
Endorsements.
This subsection applies if an endorsement is necessary for the transfer 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 Account. Company also authorizes Bank
to collect anv 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 to pay any Item or accept any Item for deposit or collection unless Bank is able
to verify to its satisfaction that all of the necessary endorsements are present on the Item.
For example, Bank ma} require that all endorsers be present at the time that an Item is
presented to Bank for payment or accepted for deposit or collection.
12
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 Items.
Breach of Warranties.
If Company breaches any warranty Company makes under the laws governing Company's
Account or rule with respect to any Item. Company shall not be released or otherwise
discharged from any liability for such breach so long as Bank notifies Company of the
breach within 120 days after Bank learns of the breach. If Bank fails to notify Company
within this 120-day period.Company shall be released from liability and discharged only to
the extent Bank's failure to notif} Company within such time period caused a loss to
Company.
When Deposits are Credited to Company's Account.
All over-the-counter 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 close 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 depositor}" «ill 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
separately 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 uncollected 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 prior notice to Company.
Deposits at Affiliates.
Company may make deposits to Company's Account(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 U.S. dollars or an Item that is not drawn on a financial institution chartered in the
United States (each, a "non-U.S. Item"). If Bank accepts a non-U.S. Item for deposit to
Company's Account or collection. Company accepts all risk associated with foreign
currency fluctuation(exchange rate risk)and any late return of the non-U.S. 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 timeframes specified in Bank's funds availability policy for
Deposited Items.
13
Acts and Omissions of Other Financial Institutions.
Bank is not liable for the insolvency. neglect, misconduct, mistake, or default of another
bank or person, or for the loss or destruction of a Deposited Item or of a notice of
nonpayment relating thereto. If a Deposited Item is lost or misrouted during the collection
process: (i)Bank shall have no responsibility to Company for the actions or inactions of any
collecting bank(ii) Bank may charge Company's Account for the amount of the Deposited
Item (and reverse any interest that may have 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 Items Returned.
Bank has the right to charge back to or otherwise debit any of Company's Account(s) for
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 (i) the Deposited Item is returned in accordance with the
laws governing Company's Account or a rule(including a clearing house rule): 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 electronic 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 Items is returned with a claim that there is a breach of
warranty (for example, that it bears a forged endorsement or is altered in any way), Bank
may debit Compan'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 duty to question
the truth of the facts that are being asserted,to assess the timeliness of the claim.or to assert
anv 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 the return of a
Deposited Item.
Direct 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 deduct the amount from that or anv other Account
Compan} 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 lost or destroyed during processing or collection(either at Bank or at
another point in the payments system). Company agrees to cooperate fully with Bank to
reconstruct the Deposited Item by promptiv:(i)providing Bank with a copy of the front and
back of the Deposited 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 Item to Company(if
the Deposited Item has not been paid): or (iii) reviewing Company's records and other
information and conducting any additional research as may be reasonable to determine the
issuer's identity (if Company does not know the identity of the issuer of the Deposited
Item). If Company fails to cooperate with Bank, Bank may, at any time and without
advance notice to Company, reverse or otherwise adjust any credit made to Company's
Account for a lost or destroyed Deposited Item.
j 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 Items, Bank may
reduce 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
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 occurs. 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 for refusing to honor any of Company's Items 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 notification
received by Bank that an Item drawn on Company's Account will be presented for payment
or collection.A determination of the balance in Company's Account for purposes of making
a decision to dishonor an Item for insufficiency or unavailability of funds may be made at
any time between 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 determination 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 anv 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 the person presenting the Paper Item 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 to pay this fee or provide the identification
Bank requests.
Large Cash Withdrawals.
If Compan} 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
provide 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 ma_y debit one or more of Company's Accounts for the
amount of the Item.
Items Resulting From Company's Disclosure of Company's Account Number.
If Company voluntarily discloses Company's Account number to another person orally.
electronically. in writins,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 to that person to issue Items drawn on
Company's Account.
Missing Signatures;Alterations; Forgeries.
Bank will have no responsibility for reviewing the number or combination of signatures on
an Item drawn on Company's Account.This means that if Company has indicated that more
than one signature is required in connection with an Item drawn on Company's Account.
15
Bank will have no liability to Company if a transaction is conducted on or through
Company's Account contrary to the signature requirements Company has specified.
provided at least one of the required signatures appears on the Item. Bank will have no
liability to Company for failing to detect 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 Special Instructions on Paper Items.
Bank may, without inquiry or liability,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 thirty(30)days.""Paid-In-Full,"or"Void over$100")-1(ii)the Paper Item
is staledated (e.g.. it bears a date that is more than six(6)months in the past), even if Bank
has knowledge of the date on the Paper Item;(iii)the Paper Item is post-dated(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 Item in a foreign currency.
Facsimile or Mechanical Signatures.
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 to be the facsimile or other mechanical signature of an Authorized Signer) as
Company's authorized signature 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 deposited
to,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 order"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 in a time and manner
that gives Bank a reasonable opportunity to act 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 verification that
the Paper Item described in the order has not been paid. This verification 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 not have Bank's STOP AUTO-RENEWAL Service.Company must renew
a stop payment order if Company does not want the stop payment order to expire after six
(6)
16
months. Each renewal is treated as a new stop payment order. For accounts with Bank's
STOP AUTO-RENEWAL Service, a stop payment 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 stop 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 opportunity to act on it.
Liabilitv to Holder in Due Course.
Notwithstanding Bank's timely return of any Paper Item due to a valid stop payment order,
Compan} may still be liable under the laws 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 stop payment order, Bank may require Company to
provide Bank with an affidavit describing in detail Company's dispute with the payee. If
Bank credits 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, pay or 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 on Company's Account.
• Return the Item if the Item would create an Overdraft on Company's Account.
Company agrees to pay Bank's fee that may vary depending on the action Bank takes. Any
Overdraft 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 Overdraft (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 interest 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
result of Bank having exercised its right of setoff. If Company has a Sweep Account,
Company also authorizes Bank to redeem 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
Bank Fees and Expenses
General.
Company agrees to pay Bank in accordance with the fee and information schedule.
Company 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 Fees and Expenses; Finance Charges.
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
Famines Allowance accrues on Company's Account, Bank will periodically apply
Company's accrued Earnings Allowance to 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
CompanN's Account (and any other account Company maintains at Bank) for attorneys
fees and am 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 fort-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.
Ck Debiting of service fees occurs on the twentieth(20th)day of each month.or if the twentieth
(20m)day is not a Business Day. 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 to the account as interest and may not be
carried forward to the following month. Eamines Allowances are calculated on a 365/366
day year basis using an"Earnings Allowance Rate."which is a variable rate established by
Bank(and which may be as tow as zero percent). Bank reserves the right to change this rate
at anv time without notice to Company. If the account is an interest-bearing account. the
account is not eligible to earn an Eamings Allowance.
Checking Subaccounts
For each checking account.Bank may establish on Company's behalf a master account and
two subaccounts. All information that is made available to Company about Company's
Account will be at the master account level. The subaccounts 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 against 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 (6m)
transfer from the savings subaccount during a statement period all of the funds on deposit in
the savings subaccount will be transferred to the transaction subaccount. If Company's
Account earns interest.the use of subaccounts will not affect the interest Company earns.
0 18
Miscellaneous
Acceptable Form of Paper Items; Document and Image Quality.
Company agrees to 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 security features) of an originally issued Item or a
Deposited Item may impair the image quality of a substitute check, purported substitute
check or electronic Item created by Bank or any third party. Bank will not be liable for any
claims, demands• judgments or expenses paid, suffered or incurred by Company, and
will indemnify Bank from and hold Bank harmless against any claims,demands.
Company .
P ,
judgments or expenses paid,suffered or incurred by Bank,arising directly or indirectly as a
result of or in connection with (i) the untimely return of any Paper Item Company has
issued as a result of, and any presentment-related problem resulting from,the failure of the
Paper Item to conform in any respect to Bank's Paper Item 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, purported substitute check or
electronic Item.whether created by Bank or any third pam'.
Closing Company's Account.
Company may close Company's Account at any time. Bank may, in its sole discretion,
close 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 recent 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 to be paid
from Company's Account, charge-backs including without limitation returned Deposited
Items and Bank's fees and expenses. This Agreement shall continue to govern 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 there 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 make 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 other) report(e.g., information from any motor 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 court: (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 to 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 representatives of
19
Bank in connection with the servicing or processing of Company's Account or Account
transactions. Account analysis. or similar purposes; (x) to Bank's Affiliates and affiliated
companies.or(xi)if Company gives Company's permission.
Dormant 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 activity (except where
the laws governing Compan%'s Account require otherwise). If Company's Account is
dormant. Bank ma} 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 Point-of-Sale("POS")access may be blocked. If Company's Account remains dormant
and is unclaimed by Company for the 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 Beneficiary.
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. understandings. 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 party 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 laws of the state in which the Bank office that
maintains Company's Account is located(unless Bank has notified Company in writing that
the laws of another state shall govern Company's Account). without regard to conflicts of
laws principles. If Company's Account was not opened in person at a Bank office (for
example, if Compan} opened its Account by phone,through the mail. or over the Internet),
Company's Account 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 particular
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, shall be venued exclusively 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;Other Restrictions.
Bank ma} impose minimum balance requirements or other applicable limitations, 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 referred to in this Agreement as a "modification." When
applicable law requires Bank to notify Company of a modification, Bank may do so by
posting notice of the modification in Bank or at Bank's home page(www.wellsfargo.com),
by including
20
a message on or with the statement for Company's Account, or by any other means that
Bank considers appropriate• unless the laws goveming Company's Account requires notice
b% a specific means. In addition, Bank may agree in writing to 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 Compam's consent to that modification or revocation of waiver. Bank
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 Recording Communications.
Bank may without liabilit} monitor. record and retain telephone conversations, electronic
messages• electronic records and other data transmissions between Company and Bank at
any time without further notice to Company, unless further notice is otherwise required by
the laws governing Company's Account.
No Fiduciary Relationship.
Banks relationship with Company concerning Company's Account is that of debtor and
creditor: no fiduciarn. quasi-fiduciar, or special relationship exists between Company and
Ban k.
Reliance on Bank Records.
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 calling Bank at the telephone number shown on the statement for
Company's Account. If Company or a third party prints its checks. Bank shall 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
Inte rest-Bea ring 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 interest rate 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
Compounding and Crediting.
Interest will compound on a daily basis. For checking and savings accounts. interest will be
credited on a monthly basis. For time accounts. Bank will notify Company separateh as to
the frequency with which interest will be credited to Company's Account.
Target Balance Accounts.
If Company maintains multiple accounts at Bank. Company may. with Bank's consent.
designate in writing one such account as its"Principal Accountand one or more additional
accounts as "Target Balance Accounts." For each Target Balance Account. Company will
separately specify to Bank in writing the Ledger Balance or 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 Target 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 may, but will not be required to. transfer funds if the
transfer would create an Overdraft or exceed the Collected Balance then on deposit in the
Principal Account.
Interest Adjustments.
An interest 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 Certification.
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. Compare must submit Internal Revenue Service ("IRS") Form W-9 or Form
W-BEN to Bank. U.S. citizens or other U.S. persons, including resident alien individuals,
must provide a Form W-9. If Company is a non-resident alien. Company must provide a
Form \-SBEN. Other additional forms may be required if Company is a foreign
partnership, foreign government, or is claiming an exemption based on Effectively
Connected Income. Until Bank has received the completed and signed Form(s) W-9 or
W-SBEN. 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) N�-9 or'W-8-BEN. 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 maturity.
whichever is later. If. at any time. Bank receives information which indicates that someone
other than Company is using the same TIN that Company certified 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
of the IRS and/or. (iii) 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 portion 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 transfers.online transfers,payments to other persons,and
transfers by telephone from Company's savings Account are limited to six(6)a month.
22
Preauthorized transfers include automatic bill payments, transfers to Company's other
Accounts with Bank, or automatic transfers to other persons that Compan} has authorized
Bank to make. If Bank permits transfers from Company's savings Account by check,draft.
point of sale POS purchases, check card or any similar order for 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 that 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
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
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 Compan}'s funds on deposit until the maturity date. Company
may make withdrawals from Company's time Account on the maturity date or within the
grace period after that date. Bank will not agree in advance to allow withdrawal before
maturity.
Payment of Interest.
If Company has elected a payment of interest other than a credit 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
Company's Account address has been returned undelivered or when an Account to which
Company's interest payments were automatically credited has been closed.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 maturity it will renew (i) for a
like term: and (ii) at Bank's interest rate in effect on the maturity date for a new time
deposit of the same term and amount, unless Bank has notified Company that 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 Company's time Account is not automatically renewable and
Company does not withdraw the funds on the maturity date. the funds will no longer earn
interest after the maturity_ date and will be placed in a non-interest-bearing checking
Account.
23
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 from time to time.
including without limitation,the National Automated Clearing House Association and an}
regional association (each. an "ACH") and Clearing House Interbank Payments System
("CHIPS'). The following terms are in addition to, and not in place of. any other
agreements between 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 Companw with any additional notice or receipt.
Reliance on Identification Numbers.
If a transfer instruction describes the person to receive payment inconsistent b} 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
number the identification number may be relied upon as the proper identification of the
financial institution.
Duty to Report Unauthorized and Erroneous Fund Transfers.
Compam 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 fourteen(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
precluded 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 erroneous 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 following 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 govern Company's Account.
• Credit given by a receiving bank to its customer for a payment from Company's
Account is provisional until final settlement has been made or until payment is
considered received under the laws that govern Company's Account.
• If final 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 final
settlement or payment is not received under the laws governing Company's
.Account.Company will not be considered to have received payment,and Bank
NN ill 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
IV. Selected Services
ATM Deposit Service.
Company may elect to utilize Bank's ATM Deposit Service by completing and returning to
Bank an ATM Deposit Service Setup Form.This Service allows Company to make deposits
to Company's Account using a Treasury Express Deposits card ("Deposit Card") and a
designated Wells Fargox ATM ("ATM"). Company shall make such deposits according to
the instructions Bank provides and shall gain access to the ATM using the Deposit Card and
a Personal Identification Number ("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 availability 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 to Company's Account. If the dollar
amount 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 been 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
ATNI. Company authorizes Bank to initiate debits to Company's Account and credits to the
accounts of third party 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 part vendor a reasonable opportunity to act on it.
Treasury Express Deposit,Service.
If Company elects to utilize Bank's Treasun• Express Deposit ("TED") Service. Company
will prepare, package and deliver TED deposits to Bank in accordance with Bank's
instructions. Bank will provisionally credit Company's Account for the currency shown on
the deposit ticket enclosed in Company's TED bag as follows: (i) same day credit for
deposits delivered to an office of Bank before that office's cut-off time on any Business
Day or for deposits placed in night depository of Bank before 6:00 a.m. on any Business
Dav: or (ii) next Business Day credit for deposits delivered to an office of Bank on any
Business Dav on or after Bank's office's cut-off time or on anv 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 to 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 determines 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.adjustments will be made and notification will be sent within three(3)Business
Days.Adjustments will be effective when they are processed.
25
COMMERCIAL ELECTRONIC OFFICEsm ("CEO")
SERVICE DESCRIPTION
1. Description of the 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 "Users") 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.
2. 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 ID code and the ID 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 ID code and will set up the first Company administrator ("FCA") by assigning a
personal ID 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 personal ID 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 Service(s) they are set up to access. The Company ID
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 ID 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 ID 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.
1427 Commercial Electronic Office Service Description
(Rev. 9 102) Page 1 of 3
A_d
2.5 FAILURE TO PROTECT ID 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 ID 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 ID 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 being a Company administrator,
administrator, or User, and (c) not keeping, in any form or in any place, lists of ID 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 ID codes, passwords, token cards, Pins, or
Passcodes. Company also agrees to notify 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, "Financial
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 Financial Information.
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 Internet, 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. Disclaimers. Bank will not be Company's advisor or fiduciary with respect to this Agreement
or any Service.
6. Limitation of Liability. Bank will not be liable to Company for any direct or indirect damages or
losses suffered or incurred by Company in connection with the CEO, any of the Services, any
Financial Information; any other information or data Company receives through the CEO, or any
failure to 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 .
7M-1426 Commercial Electronic Office Service Descrnotion
i,Rev. 9102 ) Page 2 of 3
7. Restrictinq or Terminating 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 3,67 and 8 will survive termination of the Service.
9. 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
Treasury Management Services (the "Agreement"), as amended from time to time.
TM-1426 Commercial Electronic Office Service Description
!Rev. 9/02 ) Page 3 of 3
Cash Letter Service Description
1. Description of Service. The Cash Letter Service (the "Service") is provided to corporate and commercial
cu,tomers 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 ?rational Standards Institute and the American Bankers Association ("Industry
Standards").
04. 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.
5. Liability;Indemnification. In addition to the limitation of liability and indemnification provisions set forth
in the Agreement, Bank will not be liable 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: (1) Bank's processing of photocopies of Checks from a Cash Letter, (11) 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 reclamation of any Check caused by the delay of another 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.
Cash Lener Service Description-Revised 2/15/20( 02 Wells Fargo Banks.All rights reserved.
ACCOUNT RECONCILIATION PLAN SERVICE M
SERVICE DESCRIPTION
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® ("CEO®"), subscribe to Bank's
(W CEO.
4. Bank's Obligations. Bank will provide the Services in accordance with Bank's
User Guide for the Services and the Service Options Company selects from time to
time.
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.
- 0
TM-1408 Account Reconciliation Plan Service Description Page 1 of 1
Revised 04-17-07
A.f
ACH ORIGINATION SERVICES FARGO
SERVICE DESCRIPTION
1. Introduction. This Service Description together with the other Service Documentation as
defined in the Master Agreement for Treasury Management Services ("Master Agreement")
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).
2. 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 "Account"), 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."
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 ("CEO°"), 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 Files; 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-'5-07
Page 1 of 7
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 number, even if
the number identifies a person different from the named receiver. If an Entry describes 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
actions 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.
7. 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 all charges and expenses Bank incurs in connection
with any repair.
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 returned 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 shall 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 2of7
11. Reconstruction of Entries and Files. 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.
12. 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.
13. Bank's Internal Risk Parameters. Bank establishes internal risk parameters to identify out-of-
pattern 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, return, 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.
15. Currency Conversion.
15.1. With respect to credit Entries Bank agrees to originate in the currency of a designated
foreign government or intergovernmental organization ("Foreign Currency"), Bank will
convert the amount to be transferred from U.S. dollars ("USD") to the Foreign Currency
at Bank's sell rate for exchange in effect on the Business Day 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 USD at
Bank's buy rate for exchange at the time the Entry is returned 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. Dollars 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 returns it, Bank may charge the
applicable Account (or any other accounts Company owns in whole or in part at Bank or
any affiliate of Bank) for the amount equal to the value of the returned Entry, after Bank
has converted the Foreign Currency to USD at Bank's sell rate for exchange at the time
the Entry is returned 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 intermediary
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 of 7
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.
16. 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
AVMk
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 NOC 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 attorneys' 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.
ACH Origination Services (TM-1423)
Revised 03-15-07
Page 4 of 7
A
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
attorneys' 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 returned 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 to 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 internal 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 safeauards.
ACH Origination Services (TM-1423)
Revised 03-15-07
Page 5 of 7
22.5. Election of Security Procedure. The Security Procedure Company has elected is:
❑ Secure File Transport Security Procedure - Single-Factor Authentication. Secure
File Transport is Bank's suite of secure Internet 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 ID password combination or digital certificate.
Bank's Internet ACH Service Security Procedure -Two-Factor Authentication.
Bank's Internet ACH Service Security Procedure is an Internet-based method that meets
Bank's minimum security standards for authentication and encryption. Bank will
authenticate each Entry and File released to Bank in Company's name using an agreed
upon ID password combination and a token card.
❑ 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 ID password combination
and a token card. Connect Direct and Secure + are trademarks of Sterling Commerce.
❑ Security Procedure Elected by Company's Third Party Service Provider. Company
is utilizing a Third Parry 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:
❑ Non-Standard Security Procedure. Company has refused to utilize any 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.
("Company") Wells Fargo Bank,N.A. ("Bank")
Name: Name:
Title: Title:
Date: Date:
ACH Origination Services(TM-1423)
Revised 03-15-07
Page 6 of 6
ACH Ori 9 ination Services(TM-1423)
Revised 03-15-07
Page 7of7
Wire Transfer Services Security Procedures Agreement
Section 1 -Agreement
❑NENA'
❑REPLACEMENT Account Number:
This agreement is made this day of 20 by and between ("Company") and Wells Fargo Bank,
N.A. ("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
Setup�Form V(the "Setup 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 institution through or to which the funds are to be transferred, rather than the name of the financial
institution. Company agrees that it is bound by any Order, whether or not authorized, issued in its name and
accepted by Bank in compliance with the security procedure selected by Company.
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 accompanies an Order corresponds with a valid PIN assigned to
Company on voice-initiated Orders. A PEN 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 of RSA SecurlD,9 or other system security features offered by Bank.
Section 3 - Additional Security Procedures for Specific Services. (Unless designated as "optional", the
following securty procedures are required in addition to the Standard Security Procedures.)
3.1 Voice Initiated,lion-Repetitive Wires.
3.1.1 Telephone Verification Service: Non-Repetitive Outgoing wire of S or more. By
indicating an amount Company has agreed that Bank will make a reasonable attempt to telephone a person(s)
designated by Company on the Bank's most current Setup 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 9) 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 "Company Administrator" has access to all
services Company 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"Adtinistrator"
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
10 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 0
3.2.1.1 No Self-Administration. If Company does not have Self-Administration. Company's
designated security administrator will determine Operators and the dollar limits per
transaction and per day assigned to each Operator and will communicate 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 communicating an}
changes in Operators or in Operator limits or authorization(s) to Bank. Company will
promptly report to Bank any lost or stolen token cards.
3.2.1.2 Self-Administration. If Company has requested Self-Administration, Bank will assign a
Compam 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 all services; and(c)
shall be required to immediately disable access to the CEO for any Company
Administrator, Administrator or Operator 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 Operator
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.
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
nvo Company Administrators by assigning each a personal ID code and password to be
used when each first 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 Operator 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 request. Bank will
verify each request to access the Service by determining if the Passcode is valid for the associated
personal ID code for the Operator and if the personal ID 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,
Operators who create;modify such requests 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 first logon.
3.3 Electronic Commerce/Payment Manager Services. (Check applicable box.)
3.3.1 ❑ 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.
TPA- 1441 Wire Transfer Security Procedure Agreement Page 2 of 3 February 21,2006
3.3.2. ❑ Secure File Transport(Encrypted).This procedure uses 128-bit SSL(Secure Sockets
Layer)encryption and requires the use of a transmission ID and a customer 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 to create/modify and to verify wire transfer requests. in order to
reduce Company's risk of suffering a loss resulting from an unauthorized or fraudulent wire transfers
4.2 Additional Actions by Bank. Anv actions Bank takes to detect erroneous wire transfer requests, or any
actions Bank takes beyond those described above in an attempt to detect unauthorized requests or
instructions will be taken at Bank's sole discretion. No matter how many times Bank takes these actions
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 to, 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 ;-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
Signature Signature
X� X
Date Date
Section 7-Bank Approvals
Bank Name RAU/CC/AU
Banker,'Officer Name 9 i MAC
Zfly,
Banker'OffwenSmnature. Phone Number Date
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TM- 1441 Wire Transfer Security Procedure Agreement Page 3 of 3 February 21,2006
WELLS ' SERVICE DESCRIPTION
1. Description. The WellsTAX Service will allow Company to transfer funds (a "Transfer") 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.
2. Means for initiating Transfers. Bank will originate Company's transfers from its Account(s) to a
third party ("Receiver") account ("Credit 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").
3. Procedures for Initiating Transfers. Company may initiate 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").
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 confidentiality of its access code and PIN and assumes the entire risk for the
fraudulent or unauthorized use of its access code or PIN. Company understands that failure to
protect its 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 limit 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 conditions. Company also agrees to
notify Bank immediately if it 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
transmit Company's Credit 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 with the Security Procedures and the NACHA Rules.
5. Accuracy of Data. Company must provide to Bank the data and information necessary to
enable Bank to inform the government agency or entity to be paid of the payment of the tax within
the time period required by any rule or regulation governing the payment. Company authorizes
Bank to rely on the accuracy of such data and information furnished 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 initiated by the applicable deadline ("Transfer
Initiation Deadline") as follows Transfers to a taxing authority must be initiated at least one
Business Day prior to the date payment is due to the taxing authority.
7. Authorized Reporting Agent. In performing 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 submit FTD information through the EFT system, Bank must
TM-1520 V'JellsTax Service Description Revised 6/04 Page 1 of 4
n
make Company payments as FTD payments and submit Company payment information through
the EFT system, regardless of Company's designation to the contrary.
8. 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 other 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 reporting service that
TM-1520 WellsTax Service Description Revised 6/04 Page 2 of 4
Bank provides Company). Company must immediately inform Bank of any Transfer that is
incorrect or not authorized by Company.
11. 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 will
have no obligation to perform the WeIIsTAX 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.
13. Attempts to Restrict Acceptance of Transfer Requests. Instructions attempting to restrict
Banks 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 WeIIsTAX 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 WeIIsTAX 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 WeIIsTAX 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 WeIIsTAX Service, maintain in good working order all
hardware and equipment necessary for the WellsTAX Service. Company shall implant on a
regular basis and not less than weekly, backup measures to the WeIIsTAX Service, including,
among other things, if Company is originating Credit Entries through Company's PC, copying
onto diskette 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 WeIIsTAX Service.
19. Survival. Sections 8(d). 9 and 19 will survive termination of the Service.
TM-1520''04ellsTax Service Description Revised 6/04 Page 3 of 4
20. Terminology. Unless specifically defined in this Service Description, terms 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 6/04 Page 4 of 4
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 Agreement") 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 "Account") 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 address(es) designated by
Company. CD-ROMs may be viewed using the Wellslmage Viewer TM 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 CD-
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.
Alellslmage CD Service Description JM—1437) page 1 of 1
revised 04-20-2007
RECEIVABLES MANAGER SERVICE DESCRIPTION
1. The Receivables Manager Service (the"Service").
1.1. Description. The Service will enable Company to send and receive Remittance Information (as
defined below) and related data through various channels including paper advices, E'Fax,
Electronic Data File, and the Commercial Electronic Office' (CEO") internet business portal in a
format compatible with its accounts receivable system, and subject to the provisions in Section 2. If
Company elects, Bank will consolidate all Remittance Information into a single transmission to
enable Company to update Company's accounts receivable system,whether Company requires an
ANSI or proprietary format. Bank can also send Remittance Information in several transmissions
throughout the day depending on the payment type chosen.
1.1.1. Internet Bill Pay Feature of the Service. The Internet Bill Pay feature of the Service will enable
Company to have its consumer Bill Payments, including those made through Internet bill payment
and consumer credit counseling services, received and processed by Bank and credited to
AML Company's Account (see Section 3). Bank will transmit to Company's accounts receivable system
01 A electronic Remittance Information consolidated from various consumer bill payment service
providers. Bank will gather this Remittance Information 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 formats 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 Internet Bill Pay feature items and returning them through the Bill Pay Receiveabies
Service using the CEO internet business portal.
1.2. Instructions/Information Sent or Received. Company is solely responsible for implementing any
programs and procedures it determines are necessary or appropriate to ensure the integrity, validity
and accuracy of instructions sent and information received through the Service. Bank has no
responsibility for reviewing the content of any instructions or information 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 formed, through the use of the Service. Company, and
not Bank, is responsible for determining the legal effect of any instructions or information sent or
received through the Service. Bank may reformat 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 information has been received by Bank to Company
unless Bank has otherwise agreed to do so in writing. Nothing contained in any instructions or
information 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.
2. Receipt of Payments and Related Information. The following provisions apply when Bank receives
remittances and related information as part of the Receivables Manager Service.
Receivables Manager Service Description TM-1427 Page 1 of 6
;Revised 7106)
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.
'll 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
Pavments 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. Receipt of Receivables Manager Bill Payments; 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 credited to the Account, Bank is entitled 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. Rejection of Bill Payments. 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
Receivables Manager Senece Description TM-1427 Page 2 of 6
Pev:seC 7106)
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. Company Responsibilities.
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
ICI
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. Processing and Posting 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 return 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 returning items through the CEO internet 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. Dispute 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 Requests. 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. Adiustments. 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 parry
. service provider. Unless Customer has been previously reimbursed by Company, Company will
Receivabies Manager Service Description TV 1427 Page 3 of 6
(Revised 7106)
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 promptly pay or
repay to Bank any other sums (including sums in excess of the amount of the related Bill
Payment(s)) that Bank is required to pay or 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
pay or 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.
2.7. Right Of Set-Off: Net Settlement; 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. Representations and Warranties. Company represents and warrants to Bank, any third party
service provider and each Customer Financial Institution (which representations 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 2.8. 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.
Rece,vables Manager Service Description 7M-1427 Page 4 of 6
(Revised 7106)
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-Keeping Obligations. 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 concerning the affairs and the accounts of
Customers that come into Bank's possession through the Receivables Manager Service will be
as is
information relating to the accounts of Bank's
treated in the same confidential manner 9
depositors.
2.14. Rights of Third Party Service Provider to Terminate or Limit Its Relationship 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 least one deposit account with Bank, which will be
identified in the Receivables Manager Set-up Form 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 Form or any certification, notice or other communication delivered to Bank may
receive information, 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.
5. Agents.
5.1. Company. 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
Information and related information 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 confirm 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.
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
Receivables Manager Service Description TM-1427 Page 5 of 6
(Revised 7106)
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 return of any funds
by such receiver or receiving depository financial institution or gateway operator), and no
such person will be deemed Bank's agent.
6. 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
Receivables Manager Service Description TM-1417 Page 6 of 6
(Revised 7106)
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 "Account")-
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)
Bank'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 Pay®. 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
?M-1418 Positive Pay Service Description(Pay DefauM) Page 1 of 4
;Revised 01/05/05)
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 about 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.
"M-14'8 Positive Pay Servi:e Description(Pay Default) Page 2 of4
Pevisec 01/05/U5i
6. 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 final 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") 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 receiving the Basic Positive Pay Service. the
Exception Report will also include Checks which are not matching Checks because of
encoding errors.
8. Company's Pay or 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 pay or return such
Check Bank will follow Company's instructions. Company will make its pay or return
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,
Hank 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 morning 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
l... less than Bank's then current applicable dollar threshold. Bank will make one attempt to
7M-1,118 Positive Pay Service Descnphon tPay Defauft) ?ace 3 of d
Pewsec 011OW51
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.
11. Limitation of Liability and Indemnification. Each Check Bank returns 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) Check 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 return 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, may or 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 rights 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.
7P.1-1418 Pct;twe Pa,,!'Service Descnphon/PayDelauPO Page 4 o/4
-_...�d 0!"04105,
COMMERCIAL DEPOSITORY SERVICE DESCRIPTION
1. Cash Orders from Bank's Cash Vault; Cash Vault Service. Company agrees that the following
procedures will govern 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 ("Agent") at
Bank's cash vault(collectively, the"Cash Vault Service.")
1.1 Cash Requests. 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 Officei (CEO'5) portal (each a "Cash Request") 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 verify,
and will not be liable for its failure to verify or investigate, any Cash Request.
1.2 Makina Cash Available to Company's Agent. 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 Company's Authorized Representatives. Company will promptly 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 promptly notify Bank of any
change in the person(s)or Agent so authorized by Company
1.4 Security Procedures. For requests made in writing or by fascimile, operator-assisted telephone
call or transmission, a Customer ID assigned by Bank is required. For CEO requests, a User ID
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 internal procedures that will minimize the risk of an
unauthorized person gaining access to the Customer ID, User ID(s) and Access Code(s). Such internal
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 fully 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.
TW 416 Commercial Depository Service Description(Revised K003) Page 1 of 4
A.13
1.6 Packing Slip- Differences in Shipment Amount. Each Cash Shipment will be accompanied 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.
2. Delivery and Processing of Deposit Shipments at Bank's Cash Vault. The following procedures will
govern Company's delivery of currency, coin, checks,other negotiable instruments or food coupons (each
a"Deposit Shipment") to Bank's cash vault locations, and Bank's processing of such Deposit Shipments:
2.1 Use of Agent to Deliver Shipments. 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 ("Agent"). 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; Deposit to Designated Account. If a Deposit Shipment is received at one of Bank'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 with 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 number of the
Depository Account into which the deposit is to be made is specified on the deposit slip for that Shipment.
7M-1416 Commercial Depository Service Description(Revised 68003) Page 2 of 4
2.4 Processing of Deposit Shipments. Company authorizes Bank to open each Deposit Bag, count
the contents, credit the amount of items to the Depository Account indicated on the deposit slip contained
in the Deposit Bag and 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 Deposit") to Bank's night depository locations, and Bank's
processing of Night Deposits.
3.1 Night Depository Locations; Issuance of Keys. 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 Night Bags; Deposit of Night Bags. 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 Account"). 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 Processing of Night Deposits. 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
TM-1,116 Commercial Depository Service Description(Revised 62003) Page 3 of 4
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 Counting and Adjustment 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 Depository.
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 borne 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 "Agreement") , as amended from time to time.
TM-1416 Commercial Depository Service Description(Devised&?003) Page 4 of 4
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 (i) 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.
2. 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 of the 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 notify 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.
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 to 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.
5. 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.
TM-1440 Wire Transfer Service Description Page 1 of 3
Revised 1!4/05
A_14
6. Inconsistency of Name and Number. If a Transfer Instruction describes the person to receive
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 (ii) Bank may in its sole discretion refuse to accept or may return 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. Information 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-1440 Wire Transfer Service Description Page 2 of 3
Revised 1/4/05
Bank is notified that it did not transfer the full amount stated in a Transfer Instruction, 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 Instruction. 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 subject to the rules and regulations of any funds
transfer system used by Bank as amended from time to time. If a Transfer Instruction is to be
processed in accordance with a statute, rule, regulation or license of the United States, or any
federal agency, the Transfer Instruction 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 Instruction 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 termination 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 Page 3 of 3
Revised 1/4/05
imNCE OF SERVICES
Part I —Certification.
New Agreement ❑ Designation of Sweep Option
(if checked, complete Part 11, 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
(c) 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.
Part II — Sweep Option.
A. DESIGNATION OF WELLS FARGO STAGECOACH SWEEPS" OPTION.
Company designates the following Sweep Option (check one box only):
❑ Wells Fargo Stagecoach Sweep, Preferred Option with secondary Wells Fargo
Stagecoach Sweep, Repurchase Agreement.
❑Wells Fargo Stagecoach Sweep, Preferred Option.
❑Wells Fargo Stagecoach Sweep, Repurchase Agreement with secondary Wells
Fargo Stagecoach Sweep,Preferred Option.
❑Wells Fargo Stagecoach Sweep, Repurchase Agreement.
( Wells Fargo Stagecoach Sweep, Money Market Fund. (Check one box only.)
❑ California Tax Free Money Market Mutual Fund-Class A - Fund 29.
Treasury Plus Money Market Fund-Class A - Fund 453.
!❑ National Tax-Free Money Market Fund-Class A - Fund 452.
TM-1526 Acceptance of Services with Alternative Money Market Sweep Funds Page 1 of 3
Revised 11-22-06 9
A-15
B. ADDITIONAL INFORMATION.
• Checking Account Number:
• Credit Sweep Option: ❑ Yes ;� No LOC Number:
• Statements and/or Confirmations will be sent to Company by electronic means unless
otherwise requested by Company. Electronic means include Bank's Commercial Electronic
Officec', facsimile and/or Secure E-Mail.
Part III — Signature.
Agreed To and Accepted By:
Company:
By:
Name:
Title:
Effective Date:
TM-1526 Acceptance of Services with Alternative Money Market Sweep Funds Page 2 of 3
Revised 11-22-06 9
Q 2006 Wells Fargo Bank, N.A.All rights reserved.
TM-1526 Acceptance of Services with Alternative Money Market Sweep Funds Page 3 of 3
Revised 11-22-06