Money Access Service Processing Agreement - Money Access Service Inc. and Cardtronics LP
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
This MONEY ACCESS SERVICE Processing Agreement ("Agreement") is dated
September 6, 2001 by and between MONEY ACCESS SERVICE INC. with offices located
at 1100 Carr Road, Wilmington, Delaware 19809 ("MAS", "we" or "us") and
CARDTRONICS, LP with offices located at 3000 HAYES, SUITE 101, HOUSTON, TEXAS
77082 ("User" or "you").
BACKGROUND
MAS provides Electronic Fund Transfer processing for automated teller
machine, point of banking and point of sale Terminals and accessed by using
certain plastic cards with magnetically encoded stripes issued by financial
institutions to their account holders allowing such account holders to perform
certain banking, financial and purchase Transactions. Additionally, MAS offers
services for the authorization of Transactions and provides Gateway services to
various EFT Networks, as well as certain other EFT services ("MAS Processing
Services"). User desires to purchase and use MAS Processing Services.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Agreement
as hereinafter set forth.
1. DEFINED TERMS.
All capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings set forth in Exhibit A attached hereto and made a
part hereof.
2. MAS PROCESSING SERVICES.
You hereby agree to use MAS as the processor of Transactions conducted
by your Cardholders and/or at your Terminals. You understand and agree that MAS
may provide the services hereunder through any of its affiliates. While you are
a User of MAS Processing Services under this Agreement, you elect to interface
with MAS in one of the following modes:
[ ] Full Service
[ ] Authorization Processor
[ ] Cooperative Authorization Processor
[ ] Intercept Processor
[X] Independent Sales Organization (ISO)
You understand and agree that the mode you elect now for your Interface to MAS
will govern you for the duration of this Agreement. You may elect to use any or
all of the following MAS Processing Services set forth below; however, you agree
that during the term of this Agreement we shall be the exclusive provider to you
of any of the services described below which you elect:
(i) MAS Authorization Services. In accordance with your Cardholder
information you will supply to us, we will authorize or decline Transaction
requests received from any Terminals at which your Cardholders have access or
any Networks in which you participate by
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our comparison to your Cardholder information which can consist of any of the
following: (a) real time account records, (b) daily account balances or (c)
parameter instructions.
(ii) MAS Terminal Driving Services. We will establish a direct
electronic connection between the ATM and/or POB Terminals you operate and our
switch in order to operate, supervise and monitor such Terminals for you.
(iii) Gateway Services. We will provide electronic connections from
the switch to other Network switches and other card issuers which will permit
you to acquire ATM, POB and/or POS Transactions of other Networks' and/or
issuers' Cardholders at Terminals we operate for you and to facilitate
Transactions by your Cardholders, if any, at the ATM, POS or POB Terminals of
other Networks. You may choose among the Gateway services we inform you we are
able to provide. If you elect to purchase any of our Gateway services from us
you will appropriately complete and execute applications, membership agreements,
sponsorship agreements or other documents as may be necessary to offer such
Gateway services as may be required by us or the relevant regional or national
ATM Network or card issuer, and shall provide to us evidence of your authority
to participate in such Networks or with such card issuers, as we may require
from time to time.
(iv) Additional Services. We also offer an array of additional MAS
Processing Services from which you may select to complement your Electronic Fund
Transfer products. These Processing Services include telephone banking, bill
payment, self service banking and Cardholder service charge products. You shall
indicate your selection of additional MAS Processing Services on the
Specification Forms you complete, and execute an addendum to this Agreement for
each such service you desire. From time to time we may introduce new Processing
Services which you may select by executing a further addendum to this Agreement.
3. SUPPORT AND TERMINAL LOCATION.
(a) Support Equipment and Terminals. You agree to purchase or
lease and install such ATM and POB Terminals as you desire to operate and you
agree to obtain and maintain in good working order at your expense the data
processing and communications equipment which is necessary and appropriate to
facilitate the provision of MAS Processing Services. You shall independently
determine the locations of the Terminals you choose to operate in accordance
with the rules of the Networks you join and subject to any necessary regulatory
approvals.
(b) Location of Terminals.
(1) United States and its Territories. You agree that
subject to Section 3b. (2) of this Agreement, the MAS Processing
Services to be provided under this Agreement shall only occur at
Terminals located in the United States of America or its territories.
(2) Outside of the United States or its Territories. If
you desire to receive MAS Processing Services at any Terminal located
outside of the United States of America, you agree to first provide MAS
with a written schedule of any country or countries in which you intend
to receive MAS Processing Services. You may not obtain MAS Processing
Services for Terminals located outside of the United States of America
and its territories without MAS's prior written approval. If MAS agrees
to provide such
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services to you, that approval will be, subject to the following
conditions and other conditions to which the parties agree at the time:
(i) We can terminate the provision of MAS
Processing Services in any country at any time and without
being deemed to be in breach of the MAS Processing Agreement
if we, in our sole discretion, determine that continued
provision of service to Terminals located in such country
could adversely impact MAS. If we terminate the provision of
MAS Processing Services in a particular country, we will
provide you with sixty (60) days' prior notice of such
termination, unless exigent circumstances exist.
(ii) If any provision of the Agreement is
declared or found to be illegal, unenforceable or void under
the laws of any country ("Voided Provision"), for purposes of
the laws of the specific country in which the provision is
void, the Agreement will be construed as if not containing the
Voided Provision, and the rest of the Agreement will remain in
full force and effect, and the rights and obligations of the
parties hereto shall be construed and enforced accordingly
under the laws of that country; provided, however, that the
parties consent to the enforcement of the entire Agreement,
including the Voided Provision, under the laws of the State of
Delaware.
(iii) The parties hereto affirmatively consent
that interpretation, construction and performance of this
Agreement, including the provision of MAS Processing Services
in any country outside of the United States of America or its
territories, shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware without
regard to the principle of conflicts of laws. The parties also
consent to the jurisdiction and venue in the Delaware courts
with respect to the enforcement of any matter under this
Agreement, regardless as to the location of any Terminal
receiving MAS Processing Services.
(iv) You have obtained all necessary
authorizations required under the laws, regulations and code
provisions of each country in which you seek to receive MAS
Processing Services.
(v) You are not aware of any provision of the
law, regulation or code under the laws of each country in
which you seek to receive MAS Processing Services that would
prevent (a) the provision of the MAS Processing Services to
you or (b) the enforcement of this Agreement in accordance
with its terms. During the term of this Agreement, the parties
also agree to promptly notify each other of the enactment or
promulgation of any provision of the law, regulation or code
under the laws of each country in which you seek to receive
MAS Processing Services that would prevent (a) the provision
of the MAS Processing Services or (b) the enforcement of this
Agreement in accordance with its terms.
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4. USER SPECIFICATIONS.
We will perform our processing in accordance with your instructions and
information provided to us on our Specification Forms and the rules of the
Networks you join.
5. FEES.
(a) Schedule of Fees. You agree to pay our fees and charges set
forth on the Schedule of Fees attached hereto as Exhibit B and Exhibit C for our
MAS Processing Services. Further, you agree to pay all third party charges
(including, but not limited to, our charges related to telecommunications
services and transportation expenses) incurred in connection with our provision
of MAS Processing Services. You agree that if we add new MAS Processing Services
or Transaction types during the term of this Agreement we may amend the Schedule
of Fees to add charges for such new services or Transaction types at any time.
Any service performed by us at your request or as necessitated by your act or
failure to act which is beyond the scope of the MAS Processing Services you
select on the Specification Forms shall be billed to you at our standard rates
then in effect including charges for personnel and computer time, equipment,
supplies, out-of-pocket costs and other expenses which you agree to pay us.
Commencing upon execution of this Agreement, all applicable fees and charges
shall be payable upon invoice to you. We will submit monthly statements for the
fees, charges, supplies and offer costs payable by you pursuant to this
Agreement. Payment will be made in accordance with Section 6 hereof. We may
increase or decrease the Schedule of Fees effective January 1 of each year upon
not less than one hundred twenty (120) days' prior written notice to you.
(b) Taxes. In addition to the applicable standard fees and charges
for MAS Processing Services and any other service we perform for you, you agree
to pay all federal, state and local taxes assessed as well as all other
expenses, fees and charges imposed by a governmental entity arising out of or
incidental to your use of MAS Processing Services other than those taxes,
expenses, fees or charges which are based on the net income or property of MAS.
6. CLEARING ACCOUNT.
For payment of the fees, charges, expenses and taxes, if any, due and
owing to MAS under this Agreement, you will establish and maintain for the term
of this Agreement a clearing account at a financial institution designated or
approved by us. If you have executed a STAR Member Institution Agreement or a
MAC Network Participation Agreement and already have established a clearing
account pursuant thereto, then for purposes of this Agreement you hereby grant
MAS authorization to effect credits to and debits from such clearing account for
payment of the fees, charges, expenses and taxes due and owing to MAS under
this Agreement. You agree to execute any documentation required by us or by the
designated settlement bank to grant authority to us to debit or credit such
account. You agree to maintain at all times in the clearing account a balance
sufficient to pay all amounts due and owing to MAS under this Agreement.
7. CONFIDENTIALITY OF INFORMATION.
You acknowledge that we have, through the expenditure of a significant
amount of time, effort, costs and research, developed and/or secured the right
to use various computer programs,
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forms, logos, manuals, and related materials, including our operating procedures
and technical specifications, which constitute property of great value and/or
trade secrets, and that disclosure to others of such materials may result in
loss or irreparable damage to us. Accordingly, you in your use of our MAS
Processing Services agree to hold and use any and all such property or
information in confidence, and not to disclose, reveal, copy, sell, transfer,
sub-license, assign or distribute any part or parts of it, in any form, to any
individual, firm, corporation, or other entity, or permit any of your employees,
agents or representatives to do so, except as expressly permitted in writing by
us. You further agree that upon termination of your use of MAS Processing
Services for any reason, you will immediately return all such property to us.
We acknowledge that, in your use of our MAS Processing Services, you
may disclose to us certain confidential information relating to your Cardholders
(if applicable). Accordingly, we agree to hold and use any and all such
Cardholder information in confidence, and not to disclose, reveal, copy, sell,
transfer, assign or distribute any part or parts of it, in any form, to any
person or entity, or permit any of our employees, agents, or representatives to
do so, except as expressly permitted in writing by you or as required by
applicable law.
8. MALFUNCTIONS.
Each party shall notify the other party immediately upon discovery of
any evidence which might indicate that any of the MAS Processing Services are
not satisfactory. Upon such notification, both parties shall consult and test in
a manner that MAS deems appropriate to solve the problem. If we determine that
the problem arises from hardware, software, personnel or other items within our
control, we shall correct within a reasonable time not to exceed thirty (30)
days from the date on which any such errors are brought to our attention. If we
determine that the problem arises from the equipment, software, personnel
procedures, communication or site facilities or other items within your control,
you at your own cost shall correct the problem within a reasonable time not to
exceed thirty (30) days from the date on which any such errors are brought to
your attention.
9. FORCE MAJEURE.
Neither MAS nor User shall be liable for any loss resulting from a
delay or failure in its provision of MAS Processing Services or in the operation
of a Terminal due in whole or in part to any natural disaster, epidemic, fire,
act of God, strike, war, riot, civil disturbance, court order, statute,
governmental issuance, technological facility outage, shortage of or significant
fluctuation in power or any other cause beyond its reasonable control.
10. LIMITATION OF LIABILITY.
(a) Disclaimer of Certain Damages. The duties and responsibilities
of MAS under this Agreement will be limited to those expressly set forth and
undertaken herein. In no event shall MAS be liable to User for (i) any loss of
use, revenue, profit or business opportunities or indirect, incidental,
consequential, punitive, special or exemplary damages, even if MAS is informed
or is otherwise aware or should be aware, of the possibility or likelihood of
such damages and regardless of whether any limited remedy provided hereunder is
determined to fail in its essential purpose, (ii) losses or damages attributable
to or arising from overhead allocations
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or general and administrative costs and expenses of User, (iii) losses or
damages caused other than by MAS's own gross negligence or intentional
misconduct, or (iv) losses or damages arising out of the fraudulent or criminal
acts of third parties.
(b) Damages Cap. Notwithstanding any provision contained in this
Agreement to the contrary, the aggregate liability of MAS during each
consecutive twelve (12) month period beginning on the Effective Date for any and
all claims, demands, costs, losses, damages or other potential or actual
expenses which are in any way related, directly or indirectly, to the execution,
performance or subject matter of this Agreement shall not exceed the average
monthly amount of fees paid by User to MAS during such period, exclusive of
interchange and pass-through fees, multiplied by three (3), regardless of the
form of action employed, whether in contract, warranty, tort (including
negligence) or otherwise.
(c) Risk Allocation. The parties agree that the limitation of
liability set forth in this Section 10 is a reasonable allocation of risk and
that such limitation shall apply to any remedy ordered by a court, regardless of
whether such court determines that any remedy provided for hereunder fails in
its essential purpose.
11. NO WARRANTIES.
MAS HEREBY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY
EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
12. INDEPENDENT ENTITY.
We agree to provide MAS Processing Services to you as an independent
contractor only. None of MAS's officers, employees, agents or representatives
will be subject to your control.
13. INSURANCE.
You agree to obtain all insurance coverage which is required by state
and federal law and regulation and dictated by prudent business practices in
connection with your use of MAS Processing Services.
14. RIGHT OF INSPECTION OF RECORDS.
Upon reasonable notice to us and during normal business hours your
representatives, auditors, and/or representatives of your regulatory agencies
may inspect any file which we maintain regarding the provision of MAS Processing
Services to you.
15. ASSIGNMENT AND MERGER.
This Agreement may not be assigned by you without our prior written
consent. If you are the subject of or a participant in a merger or acquisition
by (i) statute, (ii) purchase of assets, (iii) sale or exchange of stock, (iv)
consolidation or (v) any other means, such merger or acquisition shall not
terminate this Agreement; rather, this Agreement shall remain in full force and
effect after such merger or acquisition as the obligation of the surviving
financial institution.
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16. EFFECTIVE DATE AND TERM.
This Agreement shall be effective as of the date indicated in the
introductory paragraph hereof provided that it is fully executed by us in
original form and the payments required hereunder have been delivered to us. The
initial term of the Agreement shall be three (3) years from the date our
services commence under this Agreement and, thereafter, for successive one (1)
year renewal terms unless terminated in accordance with paragraph 17 herein.
17. TERMINATION.
This Agreement may be terminated in its entirety by either party at the
end of the initial term or any subsequent term upon one hundred eighty (180)
days' prior written notice to the other party. In the event you breach this
Agreement causing an early termination or terminate this Agreement prior to the
expiration of its term, you agree to pay an early termination fee in an amount
equal to the product of your average monthly fees times the number of months
left in your current term.
18. AMENDMENTS.
This Agreement may be amended only by a writing duly executed by both
parties.
19. ENTIRE AGREEMENT.
This Agreement, including all schedules, addenda and exhibits hereto,
constitutes the entire understanding between the parties as to MAS Processing
Services and supersedes all previous communications, commitments and writings.
20. SEVERABILITY.
If any provision of this Agreement is held invalid, illegal, void or
unenforceable by reason of any judicial decision, all other provisions of this
Agreement shall nevertheless remain in full force and effect.
21. WAIVERS.
No course of dealing or failure to enforce any provision or exercise
any right under this Agreement by either party shall be construed as a waiver of
such provision or right, affect the validity of this Agreement or curtail the
ability of any party to enforce such provision or exercise such right in the
future.
22. NOTICES.
All notices by one party to the other under this Agreement shall be in
writing and shall be considered delivered when actually received or three (3)
days after placement in the U.S. Postal Service, whichever is sooner. Notice
shall be sent to each party at the addresses set forth in the first paragraph of
this Agreement. Either party may change the address for notices at any time by
providing written notice of such change to the other party.
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23. HEADINGS.
The titles and headings which precede the text of this Agreement have
been inserted solely for convenience of reference and contain no substantive
meaning.
24. APPLICABLE LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives on the date first written above.
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
------------------------------------------------
E. T. Haslam, CFO
------------------------------------------------
Name and Title (Printed)
CARDTRONICS, LP
By: /s/ Michael Clinard
-------------------------------------------------
Michael Clinard, COO
------------------------------------------------
Name and Title (Printed)
_________________________________________________
User Identification Number
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EXHIBIT A
DEFINED TERMS
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
"Automated Teller Machine" or "ATM"- An electronic device activated by
a Cardholder which permits such Cardholder to access his or her account(s) for
the purpose of conducting banking Transactions. An ATM includes a full function
as well as a cash dispensing only machine.
"Business Day" - That part of any day, Monday through Friday, on which
substantially all business functions are conducted and which is not a legal
holiday.
"Cardholder" - A customer of a card issuer who has been issued a card
which activates a Terminal and permits such customer to access his or her
account(s) for the purpose of conducting Transactions.
"Gateway" - A technical interface between a computer processing switch
and a Network switch, a card issuing body or a provider of EFT or EBT services
for the purpose of conducting Transactions.
"Electronic Benefits Transfer" or "EBT" - The provision of government
entitlement programs to those individuals who are entitled to receive such
entitlements or benefits through the use of magnetically striped or other cards
capable of storing information regarding the Cardholder and capable of accessing
ATM, POB and POS Terminals to receive distribution of such entitlements or
benefits.
"Electronic Fund Transfer" or "EFT" - A transfer of funds that is
initiated through a Terminal, telephone, computer or magnetic tape and results
in a debit or credit to an account.
"Interface" - The combination of the computer programs and
communications links by which a Network switch can receive messages directly
from and send messages directly to parties which have an agreement to use such
Network's services.
"MAC" - The service mark and logo which designates the electronic funds
transfer system owned and operated by MAS.
"MAS" - MONEY ACCESS SERVICE as operated by MONEY ACCESS SERVICE INC.
or any successor corporations.
"Network" - An organization of computer hardware, software,
communications facilities, Terminals, documentation and service marks designed
to support the interchange of Transactions among financial institutions and
others.
"Point of Banking" or "POB" - The utilization of EFT access cards for
banking Transactions at clerk operated Terminals in merchant locations.
Exhibit A - 1
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"Point of Sale" or "POS" - The utilization of EFT access cards for
Transactions at retail locations.
"Processing Services" - The authorization of Transactions; the
operation, control, supervision and monitoring of Terminals deployed by a
participant; and/or the provision of electronic connections from MAS to
STARJMAC or another Network switch or card issuer to others.
"Specification Form" - A form provided by MAS on which a User documents
its instructions and selections of the options offered by MAS in its Processing
Services.
"STAR" - The mark and logo which designates the electronic funds
transfer system owned and operated by MAS' affiliate Star Networks, Inc.
"Terminal" - An electronic communications device through which a
Transaction is initiated.
"Transaction" - An EFT request made at a Terminal by a Cardholder to
his or her card issuer to debit or credit funds from his or her account(s) which
is approved by such card issuer.
"User" - A financial institution or other entity which has entered into
an agreement with MAS to use MAS Processing Services.
Exhibit A - 2
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EXHIBIT B
MONEY ACCESS SERVICE(R) PROCESSING
SCHEDULE OF FEES
User agrees to pay MAS.
DIAL-UP ATM DEVICE FEES:
1. A telecommunications charge per transaction or status message
from the ATM as shown below. Status messages include, but are not limited to,
messages regarding card reader failures, dispenser failures, receipt printer
failures, communication failures and "I'm Alive" messages. Telecommunication
fees are based upon the deployment of dial-up ATM devices and software
configurations that would not cause an average Transaction duration to exceed
connection time of 18 seconds. If average connection exceeds 18 seconds, User
will incur an additional telecommunications assessment at the rate of $ * per
second over the first 18 seconds.
1 -- 3,000,000 $ *
3,000,0001 -- 5,000,000 $ *
Over 5,000,000 $ *
2. A telecommunications charge of $ * for each downline load
of ATM screens, messages and instructions to a dial-up ATM not to exceed $ *
per month.
DEDICATED LINE DEVICE FEES:
1. A Terminal fee for each Non Dial-up ATM or Other On-Line
Terminal of $ * per month.
2. An ATM Modem lease fee of $ * per leased modem, per month.
3. A monthly telecommunications fee of $ * .
MISCELLANEOUS FEES:
1. A monthly fee of $ * per VPN for Internet access to MAS
automated workstation (AWS).
2. A monthly customized text fee of $ * per participant
regardless of the number of terminals. A $ * fee per terminal per requested
change for Terminal screen or receipt message changes (if used).
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit B - 1
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EXHIBIT C
MONEY ACCESS SERVICE(R) PROCESSING
SCHEDULE OF FEES
CLIENT-REQUESTED SUPPORT SERVICES
FEES FOR CLIENT-REQUESTED SERVICES.
- A fee of $ * per hour per person for MAS support for standard
testing and certification of client requested changes. The fee applies,
but is not limited, to message format changes, processor/software
conversions, deconversions, transmissions and other client-requested
changes or additions.
- An additional fee of $ * per hour per person for support of
client-requested special development efforts requiring software
changes, special reports and other client specific changes.
- A fee of $ * per hour per person for MAS support of client requested
testing of disaster recovery capabilities. These services include, but
are not limited, to processing, transmissions, creating reports and
transmitting files. The fee will be doubled for weekend support.
- A fee of $ * for the support of a host software conversion initiated
by the client or their processor. The fee is inclusive of all work
required to support the conversion except for certification times that
will be billed separately at the rates stated above.
- A setup fee of $ * to add a unique identifier (pseudo ID) to the
switch to designate a group of terminals or participant IDs for
settlement, billing or other purposes.
- A fee of $ * per month per pseudo ID for settlement and reporting
support.
- A $ * per report or file for the retransmission of a report or file
more than 10 days old.
FEES FOR CLIENT-REQUESTED CANCELLATION OF SUPPORT ACTIVITIES.
- A cancellation fee of $ * per day times (10 days less the number of
days cancellation notice) for a client requested cancellation of any
project where work has already been done and the notice of cancellation
is received less than 10 business days prior to the scheduled
implementation date. This fee is in addition to any fees for work
completed by MAS up to such cancellation date.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit C - 1
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Notice (days) Fee
------------- ---
0 *
1 *
2 *
3 *
4 *
5 *
6 *
7 *
8 *
9 *
FEES FOR CLIENT-REQUESTED DATABASE CHANGES.
- A fee of $ * for support of client-requested message format change.
The fee is inclusive of all work required to support the change except
the testing, certification and development time that will be billed
separately as stated above.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit C - 2
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MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
SCHEDULE OF USER'S SELECTION
OF
ADDITIONAL PROCESSING SERVICES
This Addendum is dated January 29, 2003 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, Delaware 19809
("MAS", "we" or "us") and CARDTRONICS, LP with offices located at 3110 HAYES,
SUITE 300, HOUSTON TEXAS 77082 ("User" or "you") and shall supplement, amend and
become part of the MONEY ACCESS SERVICE Processing Agreement dated September 6,
2001 between MAS and User ("MAS Processing Agreement").
BACKGROUND
In connection with the MAS Processing Services set forth in the MAS
Processing Agreement, MAS offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). At the time of execution of
the MAS Processing Agreement or at any later time, User may select Additional
Processing Services. User's most recent selection of Additional Processing
Services is itemized herein. Any previous selections by User of Additional
Processing Services are reflected on earlier addenda. The features of and
charges for the Additional Processing Services that User selects on this addenda
are set forth in separate Addenda to the MAS Processing Agreement which are
attached hereto and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS. All capitalized terms used in this Addendum and not
otherwise defined herein shall have the meanings set forth in the MAS Processing
Agreement or Exhibit A thereto.
2. USER'S SELECTION PROCESSING SERVICES. From the list below, User selects
those Additional Processing Services by which it places its initials.
________ Advanced ATM Functionality
________ Cardholder Service Charging Service
________ Card Production Service
________ Dial-Up ATM
________ EBT Processing Service
________ Electronic Banking Service
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________ Gateway Service
________ Gateway Sponsorship
________ Telephone Banking Card Service
________ MasterCard Debit Card/Visa Check Card
________ Signature Debit Fraud Risk Identification
Service
/s/ JMA On-Line Services
---------
________ Self Service Banking
________ Other Special Terms
3. CONFIRMATION OF MAS PROCESSING AGREEMENT. Except as otherwise amended
hereby, the MAS Processing Agreement is hereby ratified in all respects and
shall remain in full force and effect.
4. AGREEMENT TO SEPARATE ADDENDA. The execution by MAS and User of this
Addendum for Schedule of User's Selection of Additional Processing Services
shall evidence the parties' agreement to the terms, conditions and pricing set
forth in the separate Addenda for each of the Additional Processing Services
that User selects hereinabove.
5. NEWLY SELECTED ADDITIONAL PROCESSING SERVICES. This Addendum reflects
User's newly selected Additional Processing Services and shall supplement any
earlier addenda executed for such purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum by
their duly authorized representatives on the date first written above.
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
-------------------------------------------------
E. T. Haslam, CFO
-------------------------------------------------
Name and Title (Printed)
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CARDTRONICS, LP
By: /s/ Jack M. Antonini
------------------------------------------------
Jack M. Antonini, President/Chief
Executive Officer
------------------------------------------------
Name and Title (Printed)
________________________________________________
User Identification Number
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MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES ON-LINE SERVICES
This Addendum is dated January 29, 2003 by and between MONEY ACCESS SERVICE INC.
with offices located at 1100 Carr Road, Wilmington, Delaware 19809 ("MAS", "we"
or "us") and CARDTRONICS, LP with offices located at 3110 HAYES, SUITE 300,
HOUSTON, TEXAS 77082 ("User" or "you") and shall supplement, amend and become
part of the MONEY ACCESS SERVICE Processing Agreement dated September 6, 2001,
between MAS and User ("MAS Processing Agreement").
BACKGROUND
In addition to the MAS Processing Services set forth in the MAS
Processing Agreement, MAS offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). User elects the Additional
Processing Services described herein.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS.
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in Exhibit A to the MAS Processing
Agreement.
2. ON-LINE SERVICES. You hereby request and we hereby agree to provide you
with the features of our Online services you elect below by which you can
quickly notify and escalate ATM incidents and achieve timely resolution of
outstanding incidents and/or which you can add, change and browse terminal and
participant data and send it to MAS via an online connection:
[X] Tracker. Provides User with real time access to the Tracker ATM
monitoring system. Tracker is an automated ATM incident reporting and tracking
application that electronically generates and escalates tickets for incidents
that occur at ATMs that MAS drives and monitors.
[ ] ATI. Provides user with real time access to the terminal and
participant data they are authorized to view and/or update. ATI is an online
system created to facilitate the rapid exchange of ATM and participant data
between clients and MAS. It will substantially reduce lead times required for
terminal and participant setup and changes and it will provide users with a
terminal installation tracking system to monitor the status of ATM adds and
changes.
3. FEES
For the Additional Processing Services described in this Addendum, you agree to
pay MAS the applicable fees in accordance with the Schedule of Fees set forth on
Exhibit OLS-1 hereto.
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4. EFFECTIVE DATE AND TERM
This Addendum shall be effective when fully executed by us in original
form and the required payments hereunder have been delivered to us. This
Addendum shall be for a term coterminous with the remaining initial term or
current renewal term of the MAS Processing Agreement and shall, thereafter, be
renewed automatically for successive one (1) year terms unless terminated in
accordance with paragraph 17 of the MAS Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the MAS Processing Agreement.
5. CONFIRMATION OF MAS PROCESSING AGREEMENT
Except as otherwise amended hereby, the MAS Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
6. AGREEMENT TO ADDENDUM
User has agreed to the terms of this Addendum by at the time of its
execution of the MAS Processing Agreement or at any later time by execution of
an Addendum for Schedule of User's Selection of Additional Processing Services
to supplement the MAS Processing Agreement. The signatures of MAS and User set
forth in the MAS Processing Agreement and the above referenced Addendum shall
serve as evidence of the parties agreement to this Addendum.
2
<PAGE>
SCHEDULE OF FEES
FOR
ADDITIONAL PROCESSING SERVICES
ON-LINE SERVICES
User agrees to pay MAS on invoice:
1. TRACKER ONLINE
A. A one time set up/implementation fee of $ * for each User
ID requested.
B. A monthly application fee will be based upon the lowest fee
tier achieved in a given month for aggregate number of ATM's supported by MAS:
Monthly Application
# of ATMs Fee
--------- -------------------
1 - 10 *
11 - 20 *
21 - 50 *
51 - 100 *
101 - 500 *
501 - 1,000 *
1,001 and above *
C. A dial in access fee of $ * per minute, or
Telecommunications costs, as applicable, for access via direct connection.
D. A monthly user fee based upon the aggregate number of User IDs
assigned by MAS. Fees are charged at each level, regardless of
the tier reached:
# of User IDs Fee per User
------------- ------------
1 - 10 *
11 - 25 *
Over 25 *
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit OLS-1- 1
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
SPECIAL TERMS
This Addendum is dated January 29, 2003 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, DE 19809
("MAS", "we" or "us") and CARDTRONICS with offices located at 3110 HAYES ROAD,
SUITE 300, HOUSTON, TEXAS 77082 ("User", "you" or "your") and shall supplement,
amend and become part of the MONEY ACCESS SERVICE Processing Agreement dated
September 6, 2001, between MAS and User ("MAS Processing Agreement").
BACKGROUND
In connection with the MAS Processing Services set forth in the MAS
Processing Agreement, MAS is extending to User the special terms described
herein to facilitate User's election of MAS as the Processor of Transactions by
its Cardholders and/or at its Terminals.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in the MAS Processing Agreement or
Exhibit A thereto.
2. SPECIAL TERMS
FEES. Pursuant to Section 5 (a) of the MAS Processing Agreement
("Section 5"), MAS is authorized to amend the Schedule of Fees attached thereto
as Exhibit B to add charges for new services or Transaction types at any time.
In accordance with Section 5, the Schedule of Fees hereby is amended as of March
1, 2002 and for the remainder of the initial term as follows:
Telecommunications Fee for TCP/IP Terminals - $.03/transaction
3. CONFIDENTIALITY
The MAS Processing Agreement, this Addendum and the subject matter
addressed herein shall be kept strictly confidential by MAS and User and shall
be disclosed only to those employees and agents required to have access to such
information in the performance of each parties obligations hereunder, except to
the extent that such information is required to be disclosed in any regulatory
examination.
4. EFFECTIVE DATE AND TERM
This Addendum shall be effective when fully executed by us in original
form and the required payments hereunder have been delivered to us. This
Addendum shall be for a term coterminous with the current term of the MAS
Processing Agreement and shall, thereafter, be
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renewed automatically for successive one (1) year terms unless terminated in
accordance with paragraph 17 of the MAS Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the MAS Processing Agreement.
5. CONFIRMATION OF MAS PROCESSING AGREEMENT
Except as otherwise amended hereby, the MAS Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
The signatures of MAS and User set forth below shall serve as evidence
of the parties' agreement to this Addendum.
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
-------------------------------------------------
E. T. Haslam
-------------------------------------------------
Name and Title (Printed)
CARDTRONICS, LP
By: /s/ Jack M. Antonini
-------------------------------------------------
Jack M. Antonini, President/Chief
Executive Officer
-------------------------------------------------
Name and Title (Printed)
2
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
SCHEDULE OF USER'S SELECTION
OF
ADDITIONAL PROCESSING SERVICES
This Addendum is dated September 6, 2001 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, Delaware 19809
("MAS", "we" or "us") and CARDTRONICS, LP with offices located at 3000 HAYES,
SUITE 101, HOUSTON, TEXAS 77082 ("User" or "you") and shall supplement, amend
and become part of the MONEY ACCESS SERVICE Processing Agreement dated September
6, 2001 between MAS and User ("MAS Processing Agreement").
BACKGROUND
In connection with the MAS Processing Services set forth in the MAS
Processing Agreement, MAS offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). At the time of execution of
the MAS Processing Agreement or at any later time, User may select Additional
Processing Services. User's most recent selection of Additional Processing
Services is itemized herein. Any previous selections by User of Additional
Processing Services are reflected on earlier addenda. The features of and
charges for the Additional Processing Services that User selects on this addenda
are set forth in separate Addenda to the MAS Processing Agreement which are
attached hereto and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS. All capitalized terms used in this Addendum and not
otherwise defined herein shall have the meanings set forth in the MAS Processing
Agreement or Exhibit A thereto.
2. USER'S SELECTION OF ADDITIONAL PROCESSING SERVICES. From the list
below, User selects those Additional Processing Services by which it places its
INITIALS.
___________ Advanced ATM Functionality
___________ Cardholder Service Charging Service
___________ Card Production Service
/s/ MC Dial-Up ATM
-----------
/s/ MC EBT Processing Service
-----------
___________ Electronic Banking Service
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/s/ MC Gateway Service
-----------
/s/ MC Gateway Sponsorship
-----------
___________ Telephone Banking Card Service
___________ MasterCard Debit Card/Visa Check Card
___________ Signature Debit Fraud Risk Identification
Service
/s/ MC On-Line Services
-----------
___________ Self Service Banking
/s/ MC Other Special Terms
-----------
3. CONFIRMATION OF MAS PROCESSING AGREEMENT. Except as otherwise amended
hereby, the MAS Processing Agreement is hereby ratified in all respects and
shall remain in full force and effect.
4. AGREEMENT TO SEPARATE ADDENDA. The execution by MAS and User of this
Addendum for Schedule of User's Selection of Additional Processing Services
shall evidence the parties' agreement to the terms, conditions and pricing set
forth in the separate Addenda for each of the Additional Processing Services
that User selects hereinabove.
5. NEWLY SELECTED ADDITIONAL PROCESSING SERVICES. This Addendum reflects
User's newly selected Additional Processing Services and shall supplement any
earlier addenda executed for such purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum by
their duly authorized representatives on the date first written above.
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
-------------------------------------------------
E. T. Haslam, CFO
-------------------------------------------------
Name and Title (Printed)
CARDTRONICS, LP
By: /s/ Michael Clinard
-------------------------------------------------
Michael Clinard, COO
2
<PAGE>
Name and Title (Printed)
_________________________________________________
User Identification Number
3
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES
GATEWAY SERVICE
This Addendum is dated September 6, 2001 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, Delaware 19809
("MAS", "we" or "us") and CARDTRONICS, LP with offices located at 3000 HAYES,
SUITE 101, HOUSTON, TEXAS 77082 ("User" or "you") and shall supplement, amend
and become part of the MONEY ACCESS SERVICE Processing Agreement dated September
6, 2001, between MAS and User ("MAS Processing Agreement").
BACKGROUND
In addition to the MAS Processing Services set forth in the MAS
Processing Agreement, MAS offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). User elects the Additional
Processing Services described herein.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in the MAS Processing Agreement or
Exhibit A thereto.
2. GATEWAY SERVICE
You hereby request and we hereby agree to provide you with our Gateway service
which will afford extended EFT access to your Cardholders (if any) and the
Cardholders of other Networks and/or card issuing organizations you designate by
your initials below:
/s/ MC Cirrus/ MasterCard _______Cards _____ ATMs
------
/s/ MC PLUS/VISA _______Cards _____ ATMs
------
/s/ MC American Express Card
------
/s/ MC Discover Card
------
______ Magic Line
______ NYCE
______ Internet
______ Maestro U.S.A. Inc.
______ Interlink
/s/ MC Pulse
------
/s/ MC Star
------
______ Other (Specify) ___________________________
You must establish and maintain appropriate (i) status as an active
member of or participant in and/or (ii) arrangements to acquire Transactions of
each of the other Networks
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<PAGE>
and/or card issuing organizations you designate for our Gateway service. You
represent and warrant to us that at all times during which this Addendum is
operative you will be an active member of or participant in and/or hold an
arrangement to acquire Transactions of each Network and/or card issuing
organization you designate for our Gateway service. Through our Gateway service,
we will receive (i) Transaction requests of your Cardholders made at Terminals
of other Networks for your authorization and/or (ii) Transaction requests by
Cardholders of other Networks and/or card issuing organizations made at your
Terminals for authorization by such other Networks or card issuing
organizations.
3. OTHER USER RESPONSIBILITIES
You are responsible to comply in all respects with the rules,
regulations and standards of the other Networks to which we provide our Gateway
service for you. You will be solely responsible for all other Networks'
membership and other fees, fines, assessments, inquiries, adjustments, records,
reconcilements, accountings and every other category of fees presently existing
and hereafter imposed in connection with the Transaction requests for which we
provide our Gateway service to you.
4. FEES
For the Additional Processing Services described in this Addendum, you
agree to pay MAS the applicable fees in accordance with the schedule of fees set
forth on Exhibit GS-1 hereto.
5. EFFECTIVE DATE AND TERM.
This Addendum shall be effective when fully executed by us in original form and
the required payments hereunder have been delivered to us. This Addendum shall
be for a term coterminous with the remaining initial term or current renewal
term of the MAS Processing Agreement and shall, thereafter, be renewed
automatically for successive one (1) year terms unless terminated in accordance
with paragraph 17 of the MAS Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the MAS Processing Agreement.
6. AMENDMENT OF MAS PROCESSING AGREEMENT
Except as otherwise amended hereby, the MAS Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
7. AGREEMENT TO ADDENDUM
User has agreed to the terms of this Addendum by at the time of its
execution of the MAS Processing Agreement or at any later time by execution of
an Addendum for Schedule of User's Selection of Additional Processing Services
to supplement the MAS Processing Agreement. The signatures of MAS and User set
forth in the MAS Processing Agreement and the above referenced Addendum shall
serve as evidence of the parties' agreement to this Addendum.
2
<PAGE>
EXHIBIT GS-1
SCHEDULE OF FEES
FOR ADDITIONAL PROCESSING SERVICES
GATEWAY SERVICE
The fees payable by User for Gateway Service shall be as follows:
PROCESSING FEES
1. A per transaction processing fee including withdrawals, transfers,
balance inquiries, declines, reversals and terminal balancing as
follows:
1 - 3,000,000 transactions $ *
3,000,001 - 5,000,000 transactions $ *
Over 5,000,000 transactions $ *
2. Network sponsorship fees for national and regional networks are
included in the transaction processing fee.
3. All applicable regional and national network transaction fees including
but not limited to: indirect processing, licensing, gateway processing,
charge back, adjustment or other fees relating to participation in a
particular network, will be passed through as incurred by MAS.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit GS-1 - 1
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES
ON-LINE SERVICES
This Addendum is dated September 6, 2001 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, Delaware 19809
("MAS", "we" or "us") and CARDTRONICS, LP with offices located at 3000 HAYES,
SUITE 101, HOUSTON, TEXAS 77082 ("User" or "you") and shall supplement, amend
and become part of the MONEY ACCESS SERVICE Processing Agreement dated September
6, 2001, between MAS and User ("MAS Processing Agreement").
BACKGROUND
In addition to the MAS Processing Services set forth in the MAS
Processing Agreement, MAS offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). User elects the Additional
Processing Services described herein.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in Exhibit A to the MAS Processing
Agreement.
2. ON-LINE SERVICES. You hereby request and we hereby agree to provide you
with the features of our Online services you elect below by which you can
quickly notify and escalate ATM incidents and achieve timely resolution of
outstanding incidents and/or which you can add, change and browse terminal and
participant data and send it to MAS via an online connection:
[ ] Tracker. Provides User with real-time access to the Tracker ATM
monitoring system. Tracker is an automated ATM incident reporting and tracking
application that electronically generates and escalates tickets for incidents
that occur at ATMs that MAS drives and monitors.
[X] ATI. Provides user with real time access to the terminal and
participant data they are authorized to view and/or update. ATI is an online
system created to facilitate the rapid exchange of ATM and participant data
between clients and MAS. It will substantially reduce lead times required for
terminal and participant setup and changes and it will provide users with a
terminal installation tracking system to monitor the status of ATM adds and
changes.
3. FEES
For the Additional Processing Services described in this Addendum, you
agree to pay MAS the applicable fees in accordance with the Schedule of Fees set
forth on Exhibit OLS-1 hereto.
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<PAGE>
4. EFFECTIVE DATE AND TERM
This Addendum shall be effective when fully executed by us in original
form and the required payments hereunder have been delivered to us. This
Addendum shall be for a term coterminous with the remaining initial term or
current renewal term of the MAS Processing Agreement and shall, thereafter, be
renewed automatically for successive one (1) year terms unless terminated in
accordance with paragraph 17 of the MAS Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the MAS Processing Agreement.
5. CONFIRMATION OF MAS PROCESSING AGREEMENT
Except as otherwise amended hereby, the MAS Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
6. AGREEMENT TO ADDENDUM
User has agreed to the terms of this Addendum by at the time of its
execution of the MAS Processing Agreement or at any later time by execution of
an Addendum for Schedule of User's Selection of Additional Processing Services
to supplement the MAS Processing Agreement. The signatures of MAS and User set
forth in the MAS Processing Agreement and the above referenced Addendum shall
serve as evidence of the parties' agreement to this Addendum.
2
<PAGE>
EXHIBIT OLS-1
SCHEDULE OF FEES
FOR
ADDITIONAL PROCESSING SERVICES
ON-LINE SERVICES
User agrees to pay MAS on invoice:
A monthly fee of $ * per VPN for Internet access to MAS automated workstation
(AWS).
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit OLS-1 - 1
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
SPECIAL TERMS
This Addendum is dated September 6, 2001 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, DE 19809
("MAS", "we" or "us") and CARDTRONICS, LP with offices located at 3000 HAYES,
SUITE 101, HOUSTON, TEXAS 77082 ("User", "you" or "your") and shall supplement,
amend and become part of the MONEY ACCESS SERVICE Processing Agreement of even
date between MAS and User ("MAS Processing Agreement").
BACKGROUND
In connection with the MAS Processing Services set forth in the MAS
Processing Agreement, MAS is extending to User the special terms described
herein to facilitate User's election of MAS as the Processor of Transactions by
its Cardholders and/or at its Terminals.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in the MAS Processing Agreement or
Exhibit A thereto.
2. SPECIAL TERMS
(a) MAS PROCESSING SERVICES. The following paragraph shall be
added to Section 2 of the MAS Processing Agreement.
We agree that during the term of this Agreement we shall be a
non-exclusive provider to you of the services described in paragraphs (i), (ii)
(iii) and (iv) of this Section. You agree that although you are not obligated to
utilize us as the exclusive provider of such services for all of your dial-up
ATM locations, we shall be the exclusive provider of the services described in
paragraph (i), (ii), (iii) and (iv) of this Section for the duration of the term
of this Agreement with respect to any ATM connected and supported by us pursuant
to this Agreement.
(b) FEES. Section 5(a) of the MAS Processing Agreement is hereby
amended by adding the following two paragraphs:
Notwithstanding any terms herein to the contrary, the fees and charges
set forth in the Schedule of Fees, any Appendix, and/or Addendum (other than for
new services) shall be fixed and shall not be increased during the initial term
of the MAS Processing Agreement, except that each increase in the fees, charges,
and/or assessments levied by any regional or national network and any other
third party charges incurred in connection with our provision of MAS Processing
Services to User shall be automatically invoiced to and payable by User without
further notice by MAS.
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If, at any time following the first six (6) months of this Agreement,
User's Transaction volume falls below 500,000 Transactions per month, then all
of User's Transactions processed by MAS during such month shall be billed at
$.07 per Transaction, which is a combined total of the telecommunications charge
on Exhibit B and the processing fee on Exhibit GS-1.
(c) MALFUNCTIONS. Section 8 of the MAS Processing Agreement is
hereby amended by adding the following two paragraphs:
Availability of System. MAS agrees that MAS's central transaction processing
computer utilized in Transaction switching (the "System") shall be available to
process Transactions ninety-nine percent (99%) of each calendar month, excluding
time during which the system is unavailable due to Scheduled Maintenance. The
System shall not be considered unavailable if any connection or function outside
of MAS's control causes the System to be unable to process Transactions. MAS
shall not be deemed in breach of this agreement unless it fails to meet the
foregoing availability requirement three (3) consecutive months.
Scheduled Maintenance. "Scheduled Maintenance" shall refer to the time during
which the System is not available pursuant to scheduled system maintenance to
software or hardware of which you have been provided advanced notice. Scheduled
Maintenance generally will not exceed six (6) hours per month. We will provide
you with annual and quarterly lists reflecting the planned dates and duration
of Scheduled Maintenance. MAS will provide at least ten (10) Business Days
advanced notice of any planned change in the frequency or duration of previously
scheduled maintenance. If previously scheduled maintenance needs to be
rescheduled, MAS will notify you at least forty-eight (48) hours prior to the
new date. You understand and acknowledge that, due to extraordinary
circumstances, MAS may need to take emergency outages with little or no
forewarning. MAS will make commercially reasonable efforts to provide advance
notice to you. If MAS does not provide advance notice accordance with the
foregoing, however, the outage shall not be considered Scheduled Maintenance
hereunder.
(d) CONVERSION ASSISTANCE PROGRAM (CAP). The following CAP shall
be added to the MAS Processing Agreement:
MAS will pay up to $ * per ATM for * ATMs converted to the MAS
Processing Platform during the first * months of the Agreement subject to
the following conditions:
(i) Notwithstanding the provisions of Section 16 of the
MAS Processing Agreement, the parties agree that the
initial term of the Agreement shall commence when the
first * ATM is converted to the MAS Processing
Platform.
(ii) For purposes of calculating the CAP, User shall
submit to MAS written notice of the completion of the
conversion including the date of such completion and
the number of ATMs converted to the MAS Processing
Platform during the first * of the Agreement.
(iii) In the event any CoreData ATMs are deconverted from
the MAS Processing Platform during the initial term
of this Agreement, or the
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
2
<PAGE>
Agreement is terminated prior to the end of the
initial term for any reason other than MAS' uncured
breach of a material obligation hereunder, User shall
pay MAS an amount equal to a pro rata portion of the
CAP determined * .
(e) DECONVERSION FEES PAYABLE BY MAS. MAS shall pay to User
deconversion fees up to $100 per ATM upon early termination of the Agreement
subject to the following:
(i) such early termination is the result of an uncured
material breach by MAS or:
(ii) such early termination is the result of the System
availability falling below 50% in any given month
(iii) in any event, the total deconversion fees payable by
MAS shall not exceed the total of the last three (3)
months of fees payable and received by MAS from User
3. CONFIDENTIALITY
The MAS Processing Agreement, this Addendum and the subject matter
addressed herein shall be kept strictly confidential by MAS and User and shall
be disclosed only to those employees and agents required to have access to such
information in the performance of each parties obligations hereunder, except to
the extent that such information is required to be disclosed in any regulatory
examination.
4. EFFECTIVE DATE AND TERM
This Addendum shall be effective when fully executed by us in original
form and the required payments hereunder have been delivered to us. This
Addendum shall be for a term coterminous with the current term of the MAS
Processing Agreement and shall, thereafter, be renewed automatically for
successive one (1) year terms unless terminated in accordance with paragraph 17
of the MAS Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the MAS Processing Agreement.
5. CONFIRMATION OF MAS PROCESSING AGREEMENT
Except as otherwise amended hereby, the MAS Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
The signatures of MAS and User set forth below shall serve as evidence
of the parties' agreement to this Addendum.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
3
<PAGE>
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
-------------------------------------------------
E. T. Haslam, CFO
-------------------------------------------------
Name and Title (Printed)
CARDTRONICS, LP
By: /s/ Michael Clinard
-------------------------------------------------
Michael Clinard, COO
-------------------------------------------------
Name and Title (Printed)
4
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES
GATEWAY SERVICE
This Addendum is dated November 22, 2002 by and between MONEY ACCESS
SERVICE INC. with offices located at 1100 Carr Road, Wilmington, Delaware 19809
("MAS", "we" or "us") and CARDTRONICS, LP with offices located at 3000 HAYES,
SUITE 101, HOUSTON, TEXAS 77082 ("User" or "you") and shall supplement, amend
and become part of the MONEY ACCESS SERVICE Processing Agreement dated September
6, 2001, between MAS and User ("MAS Processing Agreement").
BACKGROUND
In addition to the MAS Processing Services set forth in the MAS
Processing Agreement, MAS offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). User elects the Additional
Processing Services described herein.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, MAS and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in the MAS Processing Agreement or
Exhibit A thereto.
2. GATEWAY SERVICE
You hereby select and we hereby agree to provide you with Gateway
Services to the Networks designated by your initials below:
_______ Cirrus/ MasterCard ________Cards _____ ATMs
_______ PLUS/VISA ________Cards _____ ATMs
_______ American Express Card
_______ Discover Card
/s/ RHC NYCE
-------
_______ Maestro U.S.A. Inc.
_______ Interlink
_______ Other (Specify) ___________________________
_______ Other (Specify) ___________________________
At all times during the provision of Gateway Services with respect to
each Network and consistent with User's category of participation in each
Network, User will remain an active member, participant, card issuer or acquirer
of Transactions in good standing with each Network that User accesses through
the Gateway Service.
1
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3. OTHER USER RESPONSIBILITIES
You are solely responsible for complying in all respects with the
rules, regulations, bylaws and/or standards of the other Network(s) to which we
provide Gateway Service pursuant to this Addendum and with applicable laws and
regulations affecting User's cards, Terminals and Transactions. Notwithstanding
any other provision of this Agreement, MAS shall have no responsibility for
losses caused, in whole or in part, by the error or delay of User in complying
with applicable laws or regulations or Network rules, regulations, bylaws or
standards in initiating or responding to chargebacks, representments,
adjustments, and every other category of fees presently existing and hereafter
imposed in connection with inquiries or other Network error resolution
processes.
4. FEES
For the Additional Processing Services described in this Addendum, you
agree to pay MAS the applicable fees in accordance with the schedule of fees set
forth on Exhibit GS-1 hereto. You will be solely responsible for all other
Networks' membership and other fees, charges, assessments, fines, penalties and
every other category of fees presently existing and hereafter imposed in
connection with your participation in, or processing or settlement of
Transactions in such Network through the Gateway Service. We will pay you on a
net basis, fees we receive from Networks for your benefit, subject to our rights
hereunder and under applicable law or regulation.
5. SETTLEMENT PROCEDURES.
MAS will calculate User's settlement obligation for each Business Day
at such time as MAS shall set in its reasonable discretion. Settlement shall be
on a net basis across all Networks selected by User, unless otherwise designated
by MAS, and will be based on the Transaction records which MAS has processed
between the cut-off time on that Business Day and the cut-off date time on the
immediately preceding Business Day, and may include any fees and other charges
payable by or due to User for that period. MAS also may include in net
settlement User's settlement obligations in the STAR Network. User hereby grants
and authorizes MAS to exercise a right of set-off against funds payable to User
pursuant to this Agreement or any other agreement between MAS and User and other
funds, including any pledge accounts, that User maintains with MAS or any
Network. MAS may apply all such amounts as payment on User's obligations in a
priority or order of payment determined by MAS in its sole discretion.
6. EFFECTIVE DATE AND TERM
This Addendum shall be effective when fully executed by us in original
form and the required payments hereunder have been delivered to us. This
Addendum shall be for a term coterminous with the remaining initial term or
current renewal term of the MAS Processing Agreement and shall, thereafter, be
renewed automatically for successive one (1) year terms unless terminated in
accordance with paragraph 17 of the MAS Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the MAS Processing Agreement.
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7. AMENDMENT OF MAS PROCESSING AGREEMENT
Except as otherwise amended hereby, the MAS Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
8. AGREEMENT TO ADDENDUM
User has agreed to the terms of this Addendum by at the time of its
execution of the MAS Processing Agreement or at any later time by execution of
an Addendum for Schedule of User's Selection of Additional Processing Services
to supplement the MAS Processing Agreement. The signatures of MAS and User set
forth in the MAS Processing Agreement and the above referenced Addendum shall
serve as evidence of the parties' agreement to this Addendum.
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<PAGE>
EXHIBIT GS-1
SCHEDULE OF FEES
FOR ADDITIONAL PROCESSING SERVICES
GATEWAY SERVICE
The fees payable by User for Gateway Service shall be as follows:
PROCESSING FEES
1. A per transaction processing fee including withdrawals, transfers,
balance inquiries, declines, reversals and terminal balancing as
follows:
1 -- 3,000,000 transactions $ *
3,000,001 - 5,000,000 transactions $ *
Over 5,000,000 transactions $ *
2. Network sponsorship fees for national and regional networks are
included in the transaction processing fee.
3. All applicable regional and national network transaction fees including
but not limited to: indirect processing, licensing, gateway processing,
charge back, adjustment or other fees relating to participation in a
particular network, will be passed through as incurred by MAS.
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Exhibit GS-1 - 1
<PAGE>
MONEY ACCESS SERVICES(R) PROCESSING AGREEMENT
ADDENDUM FOR
GATEWAY/STATE SPONSORSHIP
This Addendum ("Sponsorship Addendum") is dated as of November 22,
2002, by and among CARDTRONICS, LP ("User"), EFS National Bank, a national
banking association ("Bank") and MONEY ACCESS SERVICE INC. ("MAS") and shall
supplement, amend and become part of the MONEY ACCESS SERVICE Processing
Agreement dated September 6, 2001, between User and MAS (together with all
exhibits, addenda and schedules thereto, the ("Agreement").
BACKGROUND
MAS provides processing services for User's ATMs and Gateway access to
certain Networks pursuant to the Agreement. In order to enable User's ATMs to
participate in such Networks and to enable User to establish ATMs in certain
states, User seeks the services of a sponsor. Bank is willing to provide
sponsorship services with respect to the Networks and states selected on
Schedule A hereto (the "Selected Networks" and "Selected States," respectively)
in accordance with the terms and conditions of this Addendum, and MAS is willing
to accept Bank as a sponsor.
NOW, THEREFORE, in consideration of the promises set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS
Except as otherwise expressly indicated herein, all capitalized terms
used in this Addendum and not otherwise defined herein shall have the meanings
set forth in the MAS Processing Agreement or Exhibit A thereto. For purposes of
this Addendum, the term "Network" shall include programs for electronic, debit
card-based distribution of government benefits in addition to Networks as
defined in Exhibit A to the MAS Processing Agreement.
2. USER REPRESENTATIONS AND WARRANTIES
User represents and warrants to Bank and MAS that:
(a) The Agreement and this Addendum are valid, binding and
enforceable against User in accordance with their terms.
(b) User is duly organized, validly existing, and in good standing
under the laws of the state of its organization and authorized to do business in
each state in which the nature of User's activities make such authorization
necessary or required.
(c) User has the full power and authority to execute and deliver
the Agreement and this Addendum and perform all of its obligations hereunder.
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<PAGE>
(d) The execution, delivery and performance of the Agreement and
this Addendum by User are not in conflict with User's articles of incorporation
and by-laws or other chartering documents, or any agreement, contract, lease or
obligation to which User is a party or by which it is bound.
(e) Neither User, nor any principal of User, nor any company owned
or controlled by, or under common control with, User or any principal of User is
or has been the subject of any of the following:
(i) Criminal conviction (except minor traffic offenses
and other petty offenses); Bankruptcy filing or
petition;
(ii) Bankruptcy filing or petition;
(iii) Federal or state tax lien;
(iv) Administrative or enforcement proceeding commenced by
any state or federal regulatory agency, including any
banking or securities agency, or entity operating an
EBT Network;
(v) Restraining order, decree, injunction, or judgment in
any proceeding or lawsuit alleging fraud or deceptive
practice on the part of User or any principal
thereof; or
(vi) Any action of any Network to prohibit or terminate
User's direct or indirect activities with respect to
such Network.
For purposes of this Addendum the word "principal" shall include any
person directly or indirectly owning ten percent (10%) or more of User, any
officer or director of User, any person actively participating in the control of
User's business, and any spouse of any of the foregoing.
(f) There is not now pending or threatened against User, any
litigation or proceeding, judicial, tax or administrative, the outcome of which
might adversely affect the continuing operations of the User. Attached as part
of Schedule B is a list and brief description of all pending lawsuits to which
User is a party.
(g) User's financial statements, subject to any limitations stated
therein, which have been or which hereafter shall be furnished to Bank or MAS to
induce them to enter into this Addendum do or will, respectively, fairly
represent the financial condition of User, and all other information, reports
and other papers furnished to Bank or MAS will be, at the time the same are
furnished, accurate and complete in all material respects.
3. BANK REPRESENTATIONS AND WARRANTIES
Bank represents and warrants to User that, as of the date of this
Addendum, Bank is a member or participant in good standing with respect to each
Selected Network, with full right, power and authority to act as sponsor for
otherwise eligible ATM owners in such Selected Networks.
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<PAGE>
4. COVENANTS OF USER
(a) User will execute and deliver any application, participation
or membership agreement or other document necessary to enable Bank to act as
sponsor for User in each Selected Network and Selected State.
(b) User will comply with all federal, state and local laws,
rules, regulations and ordinances ("Applicable Laws"), including those
specifically identified in Schedule A with respect to any Selected State, and
with all bylaws, regulations, rules and operating guidelines of the Selected
Network ("Network Rules") related to User's ownership, control or operation of
the ATMs serviced by MAS pursuant to the Agreement (the "Covered ATMs") and
shall obtain all consents, approvals, authorizations or orders of any
governmental agency or body required for the execution, delivery and performance
of the Agreement and this Addendum.
(c) User will provide prompt written notice to Bank of:
(i) any material adverse change in the assets, operations
or condition, financial or otherwise, of User;
(ii) the threat or filing of any litigation against User;
(iii) any investigation of User or any principal of User by
any federal, state or local governmental agency;
(iv) any disciplinary action taken by any Network against
User or any principal of User; or
(v) the occurrence of any other item set forth at
Subsection 2(e).
(d) As soon as possible and in any event within sixty (60) days
after the end of each quarter, commencing with the calendar quarter in which the
date of this Addendum falls, User will provide Bank with a copy of the User's
balance sheet as of the end of such period and related profit, loss and surplus
statements.
(e) User agrees that this Addendum applies only to the Covered
ATMs and that Bank shall be the exclusive sponsor of such Covered ATMs for the
purposes of any Network to which MAS provides Gateway services, other than
Networks to which Bank does not have the right or authority to provide
sponsorship services.
(f) Except as required to comply with Applicable Laws related to
sponsorship of ATMs in any Selected State, User shall not in any way indicate
that Bank or MAS endorse User's activities, products or services. The parties
hereto are and shall remain independent contractors, and neither they, nor their
respective individual employees shall have or hold themselves out as having, any
power to bind the other to any third party. Nothing contained in this Addendum
shall be construed to create or constitute a partnership, joint venture,
employer-employee or agency relationship among the parties.
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<PAGE>
(g) If Bank is to act as sponsor with respect to Covered ATMs in
any Selected State, User shall
(i) provide Bank advance written notice of the proposed
locations of each Covered ATM in any such Selected
State, including the identity of operators of the
premises where such Covered ATMs are located, and of
any other information related to such Covered ATM or
location as Bank shall reasonably require;
(ii) provide Bank advance written notice of any Applicable
Laws related to the establishment and operation of
ATMs at each such location, other than federal laws
and regulations;
(iii) assist Bank in preparing any and all filings or
applications required by Applicable Law with respect
to the establishment and operation of ATMs in each
Selected State;
(iv) notify Bank of any communication, whether oral or
written (including electronic communication), from
any representative of federal, state, or local
government related to any Covered ATM; and
(v) engage in no act or omission related to any Covered
ATM which would cause Bank to be in violation of any
Applicable Law,
5. SECURITY DEPOSIT
Within three (3) business days of notice from MAS, User shall establish
and maintain with Bank a segregated, restricted interest-bearing deposit account
as to which User shall not have withdrawal privileges, dominion or control (the
"Cash Collateral Account"), and deposit into such Cash Collateral Account
collected funds in such amount requested by Bank in its sole discretion, but not
in excess of one (1) days settlement or $10,000, whichever is greater. User
hereby pledges and grants to Bank and MAS a security interest in the Cash
Collateral Account and all money in the Cash Collateral Account and proceeds
thereof as security for prompt payment in full of all User's obligations under
the Agreement and this Addendum, including its obligations to any Network for
fees, fines or assessments, and authorizes Bank and MAS to exercise a right of
set-off against funds in the Cash Collateral Account or any other funds or
payment due and owing to User under the Agreement, including interchange
payments. User agrees to take any steps necessary to ensure the attachment,
perfection or protection of Bank's and MAS's security interest in the Cash
Collateral Account.
6. COVENANTS OF BANK
(a) Bank shall act as User's sponsor with respect to the
participation of the Covered ATMs in each Selected Network in accordance with
the Network Rules of each such Selected Network and with respect to the laws and
regulations set forth at Schedule A for each Selected State.
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<PAGE>
(b) Bank shall maintain its status as member or participant in
good standing with each Selected Network and shall comply with all Network Rules
applicable to Bank's sponsorship of User's participation in each such Selected
Network; provided, however, that Bank may terminate its sponsorship with User in
any Selected Network (i) immediately upon written notice to User if Bank's
authority to participate in such Selected Network or act as sponsor of User in
such Selected Network is terminated by such Selected Network or (ii) upon thirty
(30) days prior written notice, if Bank determines to terminate its membership
or participation in such Selected Network.
(c) Bank may, in its sole discretion, determine not to sponsor any
Covered ATM.
7. COVENANTS OF MAS
MAS hereby agrees to accept Bank as User's sponsor with respect to the
Selected Networks.
8. FEES
In addition to all other fees set forth in the Agreement, User shall
compensate Bank for its services hereunder in accordance with the provisions of
Schedule C attached hereto and the fee payment provisions of the Agreement. Bank
shall pay its own costs of membership or participation in each Selected Network,
but User shall pay any third party fee or charge incurred as a result of Bank's
sponsorship of User.
9. TERM; TERMINATION
(a) This Addendum shall be effective as of the date first written
above and shall continue in effect during the term, including the initial term
and any renewal term, of the Agreement, unless earlier terminated by any party
pursuant to this Section. This Addendum will terminate without further action of
any party upon the expiration or termination of the Agreement.
(b) Any party may terminate this Addendum as of the end of the
initial term or any renewal term of the Agreement by providing sixty (60) days
prior written notice to the other parties.
(c) Bank or MAS may terminate this Addendum or Bank's sponsorship
of User in any Selected Network or with respect to the specified Applicable Laws
of any Selected State upon occurrence or discovery of one or more of the
following events:
(i) Immediately upon notice to User of the occurrence at
any time of any of the conditions set forth at
Subsections 2(e)(i), (ii), (iv), (v) or (vi) or
4(c)(i) or (iv).
(ii) Thirty (30) days after written notice by Bank or MAS
to User, upon the occurrence of any of the conditions
set forth Subsections 2(e)(iii) or 4(c)(ii) or (iii).
6
<PAGE>
(iii) In the event any financial statement, representation,
warranty, statement or certificate furnished is
materially false or misleading.
(iv) Immediately upon the occurrence of any other
circumstance with respect to this Addendum that may
reasonably be expected to have an adverse effect on
Bank.
(d) In addition to the foregoing, any party may terminate this
Addendum upon provision of thirty (30) days prior written notice to the other
parties of any material breach of this Addendum by another party, provided that
the defaulting party has not cured such breach within such thirty (30) day
period.
(e) Upon any termination of this Addendum by Bank or MAS pursuant
to Subsections 9(c) or (d) above, User shall pay to Bank an early termination
fee equal to the number of months remaining in the then-current term multiplied
by the greater of (i) the highest average monthly amount of fees and charges
incurred by User hereunder in any consecutive three (3) month period or (ii)
$5,000 (the "Early Termination Fee"). The parties agree that in the event of
termination pursuant to Subsections 9(c) or (d) above, it would be extremely
difficult and impracticable to fix the actual damages to MAS resulting from such
termination, and that, therefore, User shall pay to Bank the Early Termination
Fee set forth above as liquidated damages and not as a penalty. The parties
further agree that the Early Termination Fee represents a reasonable endeavor by
the parties to estimate fair compensation for the foreseeable losses that might
result from such termination.
10. INDEMNIFICATION
User shall indemnify and hold harmless Bank and MAS, their affiliates
(including parents and subsidiaries), and their respective officers, directors,
employees, successors and assigns, from and against any and all direct or
contingent losses, costs, claims, demands, and causes of action (including,
without limitation, the cost of investigating the claim, the cost of litigation,
and reasonable attorneys' fees, whether or not legal proceedings are instituted)
paid or incurred by or on behalf of Bank or MAS as a result of User's violation
of any of the terms of this Addendum, any Schedule hereto, Network Rules, or
Applicable Laws, or otherwise arising from or related to Bank's sponsorship of
User in any Selected Network.
11. SURVIVAL
All representations and warranties, the rights and obligations of the
parties pursuant to Sections 5, 9(e) and 10 and User's obligations to pay
accrued fees shall survive the expiration or termination of this Agreement.
12. NOTICES
For purposes of the notices provision of the Agreement, notices to Bank
shall be sent to: EFS National Bank, 2525 Horizon Lake Drive, Suite 120,
Memphis, Tennessee 38133, Attention: Senior Vice President.
7
<PAGE>
13. AMENDMENT OF AGREEMENT
Except as amended, modified and supplemented hereby, the Agreement is
hereby ratified and shall continue in full force and effect in accordance with
its terms. Bank shall be the beneficiary, to the same extent as MAS, of each
representation, warranty, covenant and condition of User under the Agreement and
of all disclaimers and limitations of liability of MAS thereunder, but shall in
no way be liable for any act or omission of MAS.
IN WITNESS WHEREOF, this Addendum is executed by the parties as of the
date and year below.
EFS National Bank
By: /s/ E. T. Haslam
-----------------------------------------------
Name and Title: E. T. Haslam, CFO
CARDTRONICS, LP
By: /s/ Ralph H. Clinard
-----------------------------------------------
Name and Title: Ralph H. Clinard, President and CEO
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
-----------------------------------------------
Name and Title: E. T. Haslam, CFO
8
<PAGE>
SCHEDULE A
SELECTED NETWORKS
User, Bank and MAS hereby agree that Bank shall act as sponsor for
User, pursuant to the terms and conditions of the Addendum, with respect to the
following Networks and in the states identified below:
[User and Bank to initial]
_____ _____ Cirrus/ MasterCard
_____ _____ PLUS/ VISA
_____ _____ American Express Card
_____ _____ Discover Card
_____ _____ MagicLine
_____ _____ Infinet
_____ _____ Honor
_____ _____ Maestro U.S.A. Inc.
_____ _____ Interlink
_____ _____ MAC
_____ _____ QUEST EBT
_____ _____ AFFN
_____ _____ STAR
/s/ RHC ____ Other (Specify) NYCE
-------
[User and Bank to initial]
_____ _____ West Virginia (Section 3lA-8-l26, West Virginia Code Ann. (Supp.
1998), and Title 106, Series 7 of the West Virginia Division of Banking's
Legislative Rules.)
Pursuant to West Virginia law, User will maintain a sign on
each Covered ATM, in a size and format acceptable to Bank
showing the sponsorship of Bank with respect to such ATM.
_____ _____ Connecticut (Pursuant to Connecticut Division of Banking's
Legislative Rules)
Pursuant to Connecticut law, User will maintain a sign on each
Covered ATM, in a size and format acceptable to Bank showing
the sponsorship of Bank with respect to such ATM.
Schedule A - 1
<PAGE>
SCHEDULE B
LITIGATION LISTINGS
None.
Schedule B - 1
<PAGE>
SCHEDULE C
FEES
1. Start Up Fee $ *
2. All applicable network transaction fees including but not limited to:
ATM fees, fines and assessments, POS fees, adjustment fees and
interchange fees/payments per the interchange table will be passed
through as incurred by MAS.
3. Sponsorship Transaction fees - Waived
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Schedule C - 1
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM FOR
GATEWAY/STATE SPONSORSHIP
This Addendum ("Sponsorship Addendum") is dated as of September 6,
2001, by and among CARDTRONICS, LP ("User"), EFS National Bank, a national
banking association ("Bank") and MONEY ACCESS SERVICE INC. ("MAS") and shall
supplement, amend and become part of the MONEY ACCESS SERVICE Processing
Agreement dated September 6, 2001, between User and MAS (together with all
exhibits, addenda and schedules thereto, the ("Agreement").
BACKGROUND
MAS provides processing services for User's ATMs and Gateway access to
certain Networks pursuant to the Agreement. In order to enable User's ATMs to
participate in such Networks and to enable User to establish ATMs in certain
states, User seeks the services of a sponsor. Bank is willing to provide
sponsorship services with respect to the Networks and states selected on
Schedule A hereto (the "Selected Networks" and "Selected States," respectively)
in accordance with the terms and conditions of this Addendum, and MAS is willing
to accept Bank as a sponsor.
NOW, THEREFORE, in consideration of the promises set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS
Except as otherwise expressly indicated herein, all capitalized terms
used in this Addendum and not otherwise defined herein shall have the meanings
set forth in the MAS Processing Agreement or Exhibit A thereto. For purposes of
this Addendum, the term "Network" shall include programs for electronic, debit
card-based distribution of government benefits in addition to Networks as
defined in Exhibit A to the MAS Processing Agreement.
2. USER REPRESENTATIONS AND WARRANTIES
User represents and warrants to Bank and MAS that:
(a) The Agreement and this Addendum are valid, binding and
enforceable against User in accordance with their terms.
(b) User is duly organized, validly existing, and in good standing
under the laws of the state of its organization and authorized to do business in
each state in which the nature of User's activities make such authorization
necessary or required.
(c) User has the full power and authority to execute and deliver
the Agreement and this Addendum and perform all of its obligations hereunder.
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<PAGE>
(d) The execution, delivery and performance of the Agreement and
this Addendum by User are not in conflict with User's articles of incorporation
and by-laws or other chartering documents, or any agreement, contract, lease or
obligation to which User is a party or by which it is bound.
(e) Neither User, nor any principal of User, nor any company owned
or controlled by, or under common control with, User or any principal of User is
or has been the subject of any of the following:
(i) Criminal conviction (except minor traffic offenses
and other petty offenses);
(ii) Bankruptcy filing or petition; (iii) Federal or state
tax lien;
(iii) Federal or state tax lien;
(iv) Administrative or enforcement proceeding commenced by
any state or federal regulatory agency, including any
banking or securities agency, or entity operating an
EBT Network;
(v) Restraining order, decree, injunction, or judgment in
any proceeding or lawsuit alleging fraud or deceptive
practice on the part of User or any principal
thereof; or
(vi) Any action of any Network to prohibit or terminate
User's direct or indirect activities with respect to
such Network.
For purposes of this Addendum the word "principal" shall include any
person directly or indirectly owning ten percent (10%) or more of User, any
officer or director of User, any person actively participating in the control of
User's business, and any spouse of any of the foregoing.
(f) There is not now pending or threatened against User, any
litigation or proceeding, judicial, tax or administrative, the outcome of which
might adversely affect the continuing operations of the User. Attached as part
of Schedule B is a list and brief description of all pending lawsuits to which
User is a party.
(g) User's financial statements, subject to any limitations stated
therein, which have been or which hereafter shall be furnished to Bank or MAS to
induce them to enter into this Addendum do or will, respectively, fairly
represent the financial condition of User, and all other information, reports
and other papers furnished to Bank or MAS will be, at the time the same are
furnished, accurate and complete in all material respects.
3. BANK REPRESENTATIONS AND WARRANTIES
Bank represents and warrants to User that, as of the date of this
Addendum, Bank is a member or participant in good standing with respect to each
Selected Network, with full right, power and authority to act as sponsor for
otherwise eligible ATM owners in such Selected Networks.
2
<PAGE>
4. COVENANTS OF USER
(a) User will execute and deliver any application, participation
or membership agreement or other document necessary to enable Bank to act as
sponsor for User in each Selected Network and Selected State.
(b) User will comply with all federal, state and local laws,
rules, regulations and ordinances ("Applicable Laws"), including those
specifically identified in Schedule A with respect to any Selected State, and
with all by-laws, regulations, rules and operating guidelines of the Selected
Network ("Network Rules") related to User's ownership, control or operation of
the ATMs serviced by MAS pursuant to the Agreement (the "Covered ATMs") and
shall obtain all consents, approvals, authorizations or orders of any
governmental agency or body required for the execution, delivery and performance
of the Agreement and this Addendum.
(c) User will provide prompt written notice to Bank of:
(i) any material adverse change in the assets, operations
or condition, financial or otherwise, of User;
(ii) the threat or filing of any litigation against User;
(iii) any investigation of User or any principal of User by
any federal, state or local governmental agency;
(iv) any disciplinary action taken by any Network against
User or any principal of User; or
(v) the occurrence of any other item set forth at
Subsection 2(e).
(d) As soon as possible and in any event within sixty (60) days
after the end of each quarter, commencing with the calendar quarter in which the
date of this Addendum falls, User will provide Bank with a copy of the User's
balance-sheet as of the end of such period and related profit, loss and surplus
statements.
(e) User agrees that this Addendum applies only to the Covered
ATMs and that Bank shall be the exclusive sponsor of such Covered ATMs for the
purposes of any Network to which MAS provides Gateway services, other than
Networks to which Bank does not have the right or authority to provide
sponsorship services.
(f) Except as required to comply with Applicable Laws related to
sponsorship of ATMs in any Selected State, User shall not in any way indicate
that Bank or MAS endorse User's activities, products or services. The parties
hereto are and shall remain independent contractors, and neither they, nor their
respective individual employees shall have or hold themselves out as having, any
power to bind the other to any third party. Nothing contained in this Addendum
shall be construed to create or constitute a partnership, joint venture,
employer-employee or agency relationship among the parties.
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(g) If Bank is to act as sponsor with respect to Covered ATMs in
any Selected State, User shall
(i) provide Bank advance written notice of the proposed
locations of each Covered ATM in any such Selected
State, including the identity of operators of the
premises where such Covered ATMs are located, and of
any other information related to such Covered ATM or
location as Bank shall reasonably require;
(ii) provide Bank advance written notice of any Applicable
Laws related to the establishment and operation of
ATMs at each such location, other than federal laws
and regulations;
(iii) assist Bank in preparing any and all filings or
applications required by Applicable Law with respect
to the establishment and operation of ATMs in each
Selected State;
(iv) immediately notify Bank of any communication, whether
oral or written (including electronic communication),
from any representative of federal, state, or local
government related to any Covered ATM; and
(v) engage in no act or omission related to any Covered
ATM which would cause Bank to be in violation of any
Applicable Law.
5. SECURITY DEPOSIT
Within three (3) business days of notice from MAS, User shall establish
and maintain with Bank a segregated, restricted interest-bearing deposit account
as to which User shall not have withdrawal privileges, dominion or control (the
"Cash Collateral Account"), and deposit into such Cash Collateral Account
collected funds in such amount requested by Bank in its sole discretion, but not
in excess of one (1) days settlement or $10,000, whichever is greater. User
hereby pledges and grants to Bank and MAS a security interest in the Cash
Collateral Account and all money in the Cash Collateral Account and proceeds
thereof as security for prompt payment in full of all User's obligations under
the Agreement and this Addendum, including its obligations to any Network for
fees, fines or assessments, and authorizes Bank and MAS to exercise a right of
set-off against funds in the Cash Collateral Account or any other funds or
payment due and owing to User under the Agreement, including interchange
payments. User agrees to take any steps necessary to ensure the attachment,
perfection or protection of Bank's and MAS's security interest in the Cash
Collateral Account.
6. COVENANTS OF BANK
(a) Bank shall act as User's sponsor with respect to the
participation of the Covered ATMs in each Selected Network in accordance with
the Network Rules of each such Selected Network and with respect to the laws and
regulations set forth at Schedule A for each Selected State.
4
<PAGE>
(b) Bank shall maintain its status as member or participant in
good standing with each Selected Network and shall comply with all Network Rules
applicable to Bank's sponsorship of User's participation in each such Selected
Network; provided, however, that Bank may terminate its sponsorship with User in
any Selected Network (i) immediately upon written notice to User if Bank's
authority to participate in such Selected Network or act as sponsor of User in
such Selected Network is terminated by such Selected Network or (ii) upon thirty
(30) days prior written notice, if Bank determines to terminate its membership
or participation in such Selected Network.
(c) Bank may, in its sole discretion, determine not to sponsor any
Covered ATM.
7. COVENANTS OF MAS
MAS hereby agrees to accept Bank as User's sponsor with respect to the
Selected Networks.
8. FEES
In addition to all other fees set forth in the Agreement, User shall
compensate Bank for its services hereunder in accordance with the provisions of
Schedule C attached hereto and the fee payment provisions of the Agreement. Bank
shall pay its own costs of membership or participation in each Selected Network,
but User shall pay any third party fee or charge incurred as a result of Bank's
sponsorship of User.
9. TERM: TERMINATION
(a) This Addendum shall be effective as of the date first written
above and shall continue in effect during the term, including the initial term
and any renewal term, of the Agreement, unless earlier terminated by any party
pursuant to this Section. This Addendum will terminate without further action of
any party upon the expiration or termination of the Agreement.
(b) Any party may terminate this Addendum as of the end of the
initial term or any renewal term of the Agreement by providing sixty (60) days
prior written notice to the other parties.
(c) Bank or MAS may terminate this Addendum or Bank's sponsorship
of User in any Selected Network or with respect to the specified Applicable Laws
of any Selected State upon occurrence or discovery of one or more of the
following events:
(i) Immediately upon notice to User of the occurrence at
any time of any of the conditions set forth at
Subsections 2(e)(i), (ii), (iv), (v) or (vi) or
4(c)(i) or (iv).
(ii) Thirty (30) days after written notice by Bank or MAS
to User, upon the occurrence of any of the conditions
set forth Subsections 2(e)(iii) or 4(c)(ii) or (iii).
5
<PAGE>
(iii) In the event any financial statement, representation,
warranty, statement or certificate furnished is
materially false or misleading.
(iv) Immediately upon the occurrence of any other
circumstance with respect to this Addendum that may
reasonably be expected to have an adverse effect on
Bank.
(d) In addition to the foregoing, any party may terminate this
Addendum upon provision of thirty (30) days prior written notice to the other
parties of any material breach of this Addendum by another party, provided that
the defaulting party has not cured such breach within such thirty (30) day
period.
(e) Upon any termination of this Addendum by Bank or MAS pursuant
to Subsections 9(c) or (d) above, User shall pay to Bank an early termination
fee equal to the number of months remaining in the then-current term multiplied
by the greater of (i) the highest average monthly amount of fees and charges
incurred by User hereunder in any consecutive three (3) month period or (ii)
$5,000 (the "Early Termination Fee"). The parties agree that in the event of
termination pursuant to Subsections 9(c) or (d) above, it would be extremely
difficult and impracticable to fix the actual damages to MAS resulting from such
termination, and that, therefore, User shall pay to Bank the Early Termination
Fee set forth above as liquidated damages and not as a penalty. The parties
further agree that the Early Termination Fee represents a reasonable endeavor by
the parties to estimate fair compensation for the foreseeable losses that might
result from such termination.
10. INDEMNIFICATION
User shall indemnify and hold harmless Bank and MAS, their affiliates
(including parents and subsidiaries), and their respective officers, directors,
employees, successors and assigns, from and against any and all direct or
contingent losses, costs, claims, demands, and causes of action (including,
without limitation, the cost of investigating the claim, the cost of litigation,
and reasonable attorneys' fees, whether or not legal proceedings are instituted)
paid or incurred by or on behalf of Bank or MAS as a result of User's violation
of any of the terms of this Addendum, any Schedule hereto, Network Rules, or
Applicable Laws, or otherwise arising from or related to Bank's sponsorship of
User in any Selected Network.
11. SURVIVAL
All representations and warranties, the rights and obligations of the
parties pursuant to Sections 5, 9(e) and 10 and User's obligations to pay
accrued fees shall survive the expiration or termination of this Agreement.
12. NOTICES
For purposes of the notices provision of the Agreement, notices to Bank
shall be sent to: EFS National Bank, 2525 Horizon Lake Drive, Suite 120,
Memphis, Tennessee 38133, Attention: Senior Vice President.
6
<PAGE>
13. AMENDMENT OF AGREEMENT
Except as amended, modified and supplemented hereby, the Agreement is
hereby ratified and shall continue in full force and effect in accordance with
its terms, Bank shall be the beneficiary, to the same extent as MAS, of each
representation, warranty, covenant and condition of User under the Agreement and
of all disclaimers and limitations of liability of MAS thereunder, but shall in
no way be liable for any act or omission of MAS.
IN WITNESS WHEREOF, this Addendum is executed by the parties as of the
date and year below.
EFS National Bank
By: /s/ E. T. Haslam
-------------------------------------------------
Name and Title: E. T. Haslam, CFO
CARDTRONICS, LP
By: /s/ Michael Clinard
-------------------------------------------------
Name and Title: Michael Clinard, COO
MONEY ACCESS SERVICE, INC.
By: /s/ E. T. Haslam
-------------------------------------------------
Name and Title: E. T. Haslam, CFO
7
<PAGE>
SCHEDULE A
SELECTED NETWORKS
User, Bank and MAS hereby agree that Bank shall act as sponsor for
User, pursuant to the terms and conditions of the Addendum, with respect to the
following Networks and in the states identified below:
[User and Bank to initial]
/s/ MC _____ Cirrus/ MasterCard
------
/s/ MC _____ PLUS/ VISA
------
/s/ MC _____ American Express Card
------
______ _____ Discover Card
______ _____ MagicLine
______ _____ Infinet
______ _____ Honor
______ _____ Maestro U.S.A. Inc.
______ _____ Interlink
______ _____ MAC
/s/ MC _____ QUEST EBT
------
______ _____ AFFN
/s/ MC _____ STAR
------
______ _____ Other (Specify) NYCE
[User and Bank to initial]
_____ _____ West Virginia (Section 31A-8-l26, West Virginia Code Ann. (Supp.
1998), and Title 106, Series 7 of the West Virginia Division of Banking's
Legislative Rules.)
Pursuant to West Virginia law, User will maintain a sign on each
Covered ATM, in a size and format acceptable to Bank showing the
sponsorship of Bank with respect to such ATM.
_____ _____ Connecticut (Pursuant to Connecticut Division of Banking's
Legislative Rules)
Pursuant to Connecticut law, User will maintain a sign on each
Covered ATM, in a size and format acceptable to Bank showing
the sponsorship of Bank with respect to such ATM.
Schedule A - 1
<PAGE>
SCHEDULE B
LITIGATION LISTINGS
None.
Schedule B - 1
<PAGE>
SCHEDULE C
FEES
1. Start Up Fee $ *
2. All applicable network transaction fees including but not limited to:
ATM fees, fines and assessments, POS fees, adjustment fees and
interchange fees/payments per the interchange table will be passed
through as incurred by MAS.
3. Sponsorship Transaction fees - Waived
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Schedule C - 1
<PAGE>
MONEY ACCESS SERVICE(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES
EBT PROCESSING SERVICES
(RADs)
This ADDENDUM FOR EBT PROCESSING SERVICES ("EBT ADDENDUM") is entered
by and between MONEY ACCESS SERVICE INC. ("MAS"), a Delaware corporation, and
CARDTRONICS, LP, a Delaware limited partnership ("Institution"), as of September
6, 200l.
1. GENERAL. MAS and Institution have entered into an agreement
for processing services dated as of _____________, ______ (the "Agreement").
This EBI ADDENDUM is intended by the parties to amend and supplement the
Agreement as set forth below, and shall for all purposes be considered part of
such Agreement. Except as modified by this EBT ADDENDUM, the Agreement shall
continue in full force and effect in accordance with its terms and shall be
applicable to the services provided pursuant to this EBI ADDENDUM.
2. DEFINED TERMS. All capitalized terms used in this EBT ADDENDUM
and not otherwise defined herein shall have the meanings set forth in the
Agreement, including Exhibit A thereto.
3. CHOICE OF EBT PROGRAMS. Institution will participate in and
MAS will provide access to the programs for electronic, debit card-based
distribution of government benefits designated by mutual agreement in Schedule
EBT- I ("EBI Programs"), as such Schedule may be amended from time to time by
mutual agreement of the parties. Institution agrees that MAS shall be the
exclusive provider to Institution of gateway access for electronic benefits
transfer programs to the extent that MAS provides access to such programs. Each
EBT Program shall be treated as a "Network" for purposes of the Agreement.
4. INSTITUTION REPRESENTATIONS AND WARRANTIES. Institution hereby
represents and warrants that it is qualified to participate in each EBT Program
it has selected in accordance with all applicable laws, regulations, rules, and
administrative guidelines related to such EBT Program, including without
limitation any applicable laws, regulations, rules, and administrative
guidelines pertaining to delivery of services to EBT recipients and recipient
confidentiality, the QUEST(R) Operating Rules for EBT Programs participating in
QUEST, the federal Civil Rights Act of 1964, Rehabilitation Act of 1973,
Americans with Disabilities Act of 1990, Clean Air Act, Clean Water Act, Energy
Policy and Conservation Act, Immigration Reform and Control Act of 1986, and, to
the extent food stamp transactions are processed hereunder, regulations issued
by the Department of Agriculture pertaining to the Food Stamp Program.
Institution represents and warrants that it has obtained any and all consents,
approvals, certifications or other evidence of authority, and has properly
executed and delivered any and all applications, agreements or other documents
necessary to participate, and to allow MAS to process and settle transactions on
its behalf, in each such EBT Program. Institution shall cooperate with MAS in
obtaining any further consents, approvals, certifications or other
1
<PAGE>
evidence of authority, and executing and delivering any further applications,
agreements or other documents that may be required from time to time in
connection with Institution's participation in each EBT Program and MAS's
provision of services hereunder. If a financial institution or other sponsor is
required for Institution to participate in an EBT Program, Institution shall
provide to MAS a duly executed certification of each such sponsor in a form
provided by MAS.
5. INSTITUTION OBLIGATIONS.
a. At all times during the term, including any renewal thereof,
of this EBT ADDENDUM, Institution shall remain a participant in good standing in
each EBT Program selected hereunder.
b. The fees set forth in the Agreement, including in the
schedules, exhibits and addenda thereto shall apply to electronic benefit
transfer transactions to the same extent as on-line debit transactions, provided
however, that MAS may modify or add fees and charges for the support of services
for an EBT Program that imposes additional costs on MAS.
c. Institution will comply with all applicable laws, regulations,
rules, or administrative guidelines related to its participation in each EBT
Program and acceptance of EBT cards, including any Network rules or restrictions
implemented by Institution's sponsor into any EBT Program. Institution shall not
resubmit any EBT Transaction except as specifically permitted by the rules
applicable to such EBT Program. Institution will not take any action that would
cause MAS to be in violation of any law, regulation, rule or administrative
guideline applicable to an EBT Program, including any Network rules.
d. With respect to each EBT Program in which Institution
participates, Institution shall comply with any obligations or duties imposed on
participants in such FBI Program under any agreement ("Master Agreement")
between MAS and the administrator of the FBI Program ("EBT Provider") pursuant
to which MAS is authorized to process Transactions for the EBT Program, and the
EBT Provider shall have the right to directly enforce the terms and conditions
of the Master Agreement against Institution in the event that Institution
breaches its obligations hereunder. MAS will provide Institution with a copy of
any Master Agreement which imposes obligations or duties on participants or with
other reasonable notice of such obligations and duties. Institution shall not
take any action that would cause MAS to be in violation of any Master Agreement,
including any performance standards thereunder.
e. Institution agrees that MAS may release information regarding
Institution's use of the EBT Program upon request by any Federal or State
agency, and that Institution shall not have a claim or cause of action for such
release of information.
f. Institution shall maintain records of EBT Transactions as
required by applicable laws, regulations, rules, or administrative guidelines
related to its participation in each EBT Program, including any Network rules.
g. Institution shall not use or disclose any information
concerning a Recipient for any purpose not directly connected with the
performance of Institution's duties under an EBT Program.
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<PAGE>
h. Institution shall not discriminate in the provision or denial
of any EBT Transaction on the basis of a Recipient's disability or handicap (if
any), age, race, color, religion, sex, sexual preference, political belief,
national origin creed, marital status or veteran's status.
i. Institution shall provide to MAS and any EBT Provider any
information reasonably required by MAS or the EBT Provider to assist MAS or the
EBI Provider in ensuring the integrity, security and successful performance of
the EBT Network, including without limitation advance notice of the location and
ownership of each ATM to participate in any EBT Program.
6. INDEMNIFICATION. In addition to any indemnification obligations of
Institution set forth in the Agreement, Institution shall indemnify and hold
harmless MAS, and its directors, officers, employees, agents and affiliates from
and against any and all claims or losses arising out of (i) any breach of this
EBT Addendum by Institution and (ii) any negligent or fraudulent act or omission
or intentional misconduct of Institution.
7. MAS REPRESENTATIONS AND WARRANTIES. MAS hereby represents and warrants
that it is a qualified processor in each EBT Program identified in Schedule EBT-
1 and that it has obtained any and all authorizations, certifications or other
evidence of authority, and has properly executed and delivered any and all
applications, agreements or other documents necessary to participate in each
such EBT Program.
8. MAS OBLIGATIONS.
a. MAS shall provide the MAS Processing Services with respect to
EBT Programs identified on Schedule EBT- 1 in accordance with the terms of this
EBT ADDENDUM, the Agreement and applicable laws, regulations, rules and
administrative guidelines applicable to each selected EBT Program, including any
Network rules.
b. MAS shall have the authority, without any liability, to
terminate or suspend the provision of services hereunder with respect to each
and every EBT Program, at the direction of any federal, state or other authority
with responsibility for oversight or implementation of such EBT Program,
including any EBT Provider, upon MAS's determination to terminate support for
such EBT Program for all customers, or upon Institution's loss of eligibility or
authority to participate in such EBT Program. If MAS is directed to terminate or
suspend the provision of services hereunder with respect to an EBT Program, MAS
may also terminate or suspend provision of services hereunder for any other EBT
Program without liability.
9. LIMITATION OF LIABILITY. In addition to the limitation of liability set
forth in the Agreement, Institution agrees and acknowledges that MAS shall have
no liability to Institution arising out of any act or omission by an EBT
Provider, including without limitation, an EBT Provider's rejection, chargeback
or other failure to fully process in the ordinary course and without penalty any
adjustment based upon a restriction on EBT Provider's ability to process such
adjustment to the account of a recipient of government benefits, regardless of
whether the error being adjusted or corrected was caused in whole or in part by
MAS.
10. TERM AND TERMINATION. This EBT ADDENDUM shall be effective as of the
date first written above and shall continue in full force and effect until the
expiration or termination of
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<PAGE>
the Agreement in accordance with its terms. This FBI Addendum may also be
terminated by either party in the event the other party has materially breached
this EBT Addendum and has not cured such breach within thirty (30) days of
written notice of such breach from the non-breaching party; provided however,
that MAS may terminate this EBT Addendum within such thirty (30) day period if
MAS believes that such breach may cause a penalty, fine or other sanction to be
imposed on MAS or will otherwise adversely affect MASs ability to provide
processing services in any EBT Program.
11. EFUNDS EBI PROGRAMS. Institution agrees that if it participates in an
EBI Program for which eFunds ("eFunds") is the EBT Provider, and such EBT
Program does not operate under the Quest Operating Rules, eFunds shall have no
liability to Institution arising out of e-Fund's management of the EBT Program
or processing of Transactions except for Institution's direct damages caused by
fraud or intentional misconduct committed by eFund's employees. In no event
shall eFund be liable to Institution for indirect, incidental or consequential
damages. Institution agrees and acknowledges that eFund is a third party
beneficiary of this FBI ADDENDUM for purposes of this limitation of liability.
IN WITNESS WHEREOF, the parties hereto have executed this EBT ADDENDUM
by their duly authorized representatives as of the date first written above.
MONEY ACCESS SERVICE INC.
By: /s/ E. T. Haslam
------------------------------------------------
Name and Title: E. T. Haslam, CFO
CARDTRONICS, LP
By: /s/ Michael Clinard
------------------------------------------------
Name and Title: Michael Clinard, COO
4
<PAGE>
SCHEDULE EBT-1
EBT PROGRAMS
STATE PROGRAM SPECIFICATION
----- ---------------------
Alabama Citibank/Quest
Alaska "
Arizona "
Arkansas "
Colorado "
Connecticut "
Florida "
Georgia "
Hawaii "
Idaho "
Indiana "
Kentucky (Federal Benefits Only) "
Maine (Future) "
Maryland "
Massachusetts "
Missouri "
New Hampshire "
New York "
North Carolina (Federal Benefits Only) "
Pennsylvania "
Rhode Island "
Tennessee "
Vermont "
Washington "
Washington, DC Lockheed Martin
Kansas eFunds
Louisiana "
Utah "
Schedule EBT-1 - 1
<PAGE>
RAD/ISO EBT SPONSOR CERTIFICATION
The undersigned "Sponsor" hereby represents, warrants and certifies that, on the
basis of certain representations, warranties or covenants by Sponsor to the
respective entities operating each of the following programs for the electronic
distribution of government benefits (each, an "EBT Program"), Institution has
received all necessary authorizations, consents and approvals and has made all
necessary filings and submissions to participate in each such EBT Program.
Sponsor acknowledges that MAS is relying upon the foregoing in providing
processing services to Institution with respect to such EBI Programs.
State Program
________________________________________________________________________________
________________________________________________________________________________
Sponsor and Institution agree to provide MAS with at least thirty (30) days
written notice prior to any termination or modification of Sponsor's agreement
with Institution, or with any of the respective entities operating the foregoing
EBT Programs, that would adversely affect Institution's right, power or
authority to fully participate in any such EBT Program. If Sponsor enters into
any arrangement that would limit the authority of Institution to charge card
holders a fee for use of Institution's terminals, Sponsor shall provide MAS
written notice thereof on or before the execution of this RAD/ISO EBT SPONSOR
CERTIFICATION or thereafter at least sixty (60) days prior to the effectiveness
of such limitation.
ACKNOWLEDGED AND AGREED:
SPONSOR INSTITUTION
EFS NATIONAL BANK CARDTRONICS, LP
By: /s/ E. T. Haslam By: /s/ Michael Clinard
------------------------------ -----------------------------------
PRINT: E. T. Haslam PRINT: Michael Clinard
TITLE: Chief Financial Officer TITLE: Chief Operating Officer
1
<PAGE>
NON-MEMBER TERMINAL AGREEMENT
AND SERVICE MARK LICENSE
THIS AGREEMENT made by and between CIRRUS System, Inc. (hereinafter
"CIRRUS") and Cardtronics, LP (hereinafter "Non-member).
WITNESSETH
WHEREAS CIRRUS has established an electronic system (the "CIRRUS
System") to facilitate the ability of the customers of its Members to obtain
various electronic funds transfer services; and
WHEREAS, in connection with the operation of the CIRRUS System, CIRRUS
has adopted and is the exclusive owner of certain service marks as set forth in
the CIRRUS Operating Manual, including the name "CIRRUS," U.S. trademark
Registration No. 1,259,615, and the graphic design with the name "CIRRUS," U.S.
Trademark Registration No. 1,298,026, and may in the future adopt and become the
owner of other service marks for use in connection with the CIRRUS System (such
current and future service marks to be referred to hereinafter as the "Marks");
and
WHEREAS Non-member has lawfully established automated teller machines
or other electronic terminals which it owns or rents and which it wishes to be
connected to the CIRRUS System in accordance with the rules of said system;
NOW, THEREFORE, in consideration of the premises and the covenants set
forth herein, it is agreed as follows:
1. CIRRUS hereby grants to Non-member upon the terms and
conditions set forth herein, a royalty-free, nonexclusive, revocable,
nontransferable right and license to use the Marks for services which are
designated by CIRRUS, on automated teller machines or other electronic terminals
which grant access to the CIRRUS System, in advertising and promotional
literature, and in such other manner as may be prescribed in writing by CIRRUS
from time to time. Non-member hereby agrees to adhere to the standards of
quality established by CIRRUS and to provide electronic funds transfer services
in connection with the Marks in conformity with the standards of practice
prescribed by CIRRUS.
2. Non-member agrees to adhere to the established rules and
regulations for use of the Marks and operation of the CIRRUS System, as such
rules and regulations from time to time may be amended, modified or revised,
including without limitation the CIRRUS Operating Rules, the CIRRUS
Identification Standards Manual and all bulletins promulgated by CIRRUS from
time to time. NON-MEMBER ACKNOWLEDGES THAT SAID RULES AND REGULATIONS CONTAIN
IMPORTANT LIMITATIONS NOT REFLECTED IN THE EXPRESS TERMS OF THIS AGREEMENT, AND
THAT NON-MEMBER MAY BE LIABLE FOR SUBSTANTIAL PENALTIES FOR VIOLATION OF SAID
RULES AND REGULATIONS.
3. CIRRUS shall have the right to inspect the use of the Marks by
Non-member at reasonable intervals during business hours for the purpose of
determining whether Non-member
1
<PAGE>
is adhering to the standards established for use of the Marks and operation of
the CIRRUS System. Non-member shall, upon request, supply CIRRUS with any
material or information requested by CIRRUS and reasonably related to the
subject matter of this Agreement.
4. The license granted by this Agreement shall be deemed to be
revoked automatically upon the occurrence of any of the following events:
(a) bankruptcy or insolvency of the Non-member.
(b) voluntary or involuntary liquidation of Non-member, or
(c) any action by any government authority which terminates or
impairs the ability of Non-member to make available electronic funds transfer
services through the Non-member's automated teller machines or other electronic
terminals.
5. The license granted by this Agreement may, at any time, with
or without cause, be revoked by CIRRUS, and the terms and conditions of this
Agreement may be modified by CIRRUS at any time by giving written notice thereof
to Non-member. Upon notice of revocation, Non-member agrees to cease immediately
all use of or reference to the Marks. All material in the possession of
Non-member or subject to its control, on or in connection with which the Marks
appear, shall be destroyed by Non-member within thirty (30) days after the date
of revocation.
6. Non-member shall not acquire any right, title or interest in
or to the use of the Marks which may be construed to survive the revocation of
the license granted by this Agreement.
7. Non-member further agrees that:
(a) Non-member shall have no power, right or authority to
transfer, assign or license any rights in or ID the use of the Marks hereby
licensed to it.
(b) Nonmember will not at any time do or cause to be done any act
or deed in any way impairing or intended to impair the right of CIRRUS to the
use of the Marks, or their validity in any jurisdiction.
(c) Non-member is not a Member of CIRRUS and has not acquired,
through this Agreement, such status or any of the rights thereof, and Non-member
agrees not to represent itself to anyone as a Member of CIRRUS.
(d) Non-member is not authorized to issue cards for use as access
devices in the CIRRUS System, or apply the Marks to any cards. Such use of the
Marks by Non-member is hereby expressly prohibited.
8. Non-member shall be solely responsible for its compliance with
any and all local, State, federal or foreign statutes, rules and regulations
which may be applicable to the ownership, establishment or operation of its
automated teller machines or other electronic terminals or to any other aspect
of the services it provides in connection with its use of the Marks.
2
<PAGE>
9. Non-member shall indemnify CIRRUS and its Members and hold
them harmless from and against any and all damage losses or expenses, including
reasonable attorneys' fees, which may be incurred in connection with any claims,
demands, lawsuits, or judgments arising from or in connection with Non-member's
use of the Marks or its provision of electronic funds transfer services in
connection with the CIRRUS System in any manner other than as expressly
permitted by this Agreement.
10. This Agreement and the license granted hereby shall be
governed by the laws of the State of Illinois and the trademark laws of the
United States of America.
11. This Agreement and the license granted hereby shall be
effective as of ________________, 199___.
CIRRUS SYSTEM, INC. Cardtronics, LP
3000 Hayes, Suite 101
Houston, Texas 77082
By: _______________________________ ________________________________
John O. Smith, President (Name and Address of Non-Member)
By: /s/ Michael Clinard, COO
----------------------------
(Name, Title)
________________________________
License Identification Number
3
<PAGE>
STAR(R) PROCESSING AGREEMENT
ADDENDUM FOR
GATEWAY/STATE SPONSORSHIP
This Addendum ("Sponsorship Addendum") is dated as of April 2003 by and
among CARDTRONICS, LP ("User"), Concord EFS National Bank, a national banking
association ("Bank") and STAR PROCESSING, INC., A CONCORD EFS, INC. COMPANY
("SPI") f/k/a MONEY ACCESS SERVICE, INC. and shall supplement, amend and become
part of the MONEY ACCESS SERVICE Processing Agreement dated September 6, 2001,
between User and SPI (together with all exhibits, addenda and schedules thereto,
the ("Agreement").
BACKGROUND
SPI provides processing services for User's ATMs and Gateway access to
certain Networks pursuant to the Agreement. In order to enable User's ATMs to
participate in such Networks and to enable User to establish ATMs in certain
states, User seeks the services of a sponsor. Bank is willing to provide
sponsorship services with respect to the Networks and states selected on
Schedule A hereto (the "Selected Networks" and "Selected States," respectively)
in accordance with the terms and conditions of this Addendum, and SPI is willing
to accept Bank as a sponsor.
NOW, THEREFORE, in consideration of the promises set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS
Except as otherwise expressly indicated herein, all capitalized terms
used in this Addendum and not otherwise defined herein shall have the meanings
set forth in the SPI Processing Agreement or Exhibit A thereto. For purposes of
this Addendum, the term "Network" shall include programs for electronic, debit
card-based distribution of government benefits in addition to Networks as
defined in Exhibit A to the SPI Processing Agreement.
2. USER REPRESENTATIONS AND WARRANTIES
User represents and warrants to Bank and SPI that:
(a) The Agreement and this Addendum are valid, binding and
enforceable against User in accordance with their terms.
(b) User is duly organized, validly existing, and in good standing
under the laws of the state of its organization and authorized to do business in
each state in which the nature of User's activities make such authorization
necessary or required.
(c) User has the full power and authority to execute and deliver
the Agreement and this Addendum and perform all of its obligations hereunder.
1
<PAGE>
(d) The execution, delivery and performance of the Agreement and
this Addendum by User are not in conflict with User's articles of incorporation
and by-laws or other chartering documents, or any agreement, contract, lease or
obligation to which User is a party or by which it is bound.
(e) Neither User, nor any principal of User, nor any company owned
or controlled by, or under common control with, User or any principal of User is
or has been the subject of any of the following:
(i) Criminal conviction (except minor traffic offenses
and other petty offenses);
(ii) Bankruptcy filing or petition;
(iii) Federal or state tax lien;
(iv) Administrative or enforcement proceeding commenced by
any state or federal regulatory agency, including any
banking or securities agency, or entity operating an
EBT Network;
(v) Restraining order, decree, injunction, or judgment in
any proceeding or lawsuit alleging fraud or deceptive
practice on the part of User or any principal
thereof; or
(vi) Any action of any Network to prohibit or terminate
User's direct or indirect activities with respect to
such Network.
For purposes of this Addendum the word "principal" shall include any
person directly or indirectly owning ten percent (10%) or more of User, any
officer or director of User, any person actively participating in the control of
User's business, and any spouse of any of the foregoing.
(f) There is not now pending or threatened against User, any
litigation or proceeding, judicial, tax or administrative, the outcome of which
might adversely affect the continuing operations of the User. Attached as part
of Schedule B is a list and brief description of all pending lawsuits to which
User is a party.
(g) User's financial statements, subject to any limitations stated
therein, which have been or which hereafter shall be furnished to Bank or SPI to
induce them to enter into this Addendum do or will, respectively, fairly
represent the financial condition of User, and all other information, reports
and other papers furnished to Bank or SPI will be, at the time the same are
furnished, accurate and complete in all material respects.
3. BANK REPRESENTATIONS AND WARRANTIES
Bank represents and warrants to User that, as of the date of this
Addendum, Bank is a member or participant in good standing with respect to each
Selected Network, with full right, power and authority to act as sponsor for
otherwise eligible ATM owners in such Selected Networks.
2
<PAGE>
4. COVENANTS OF USER
(a) User will execute and deliver any application, participation
or membership agreement or other document necessary to enable Bank to act as
sponsor for User in each Selected Network and Selected State.
(b) User will comply with all federal, state and local laws,
rules, regulations and ordinances ("Applicable Laws"), including those
specifically identified in Schedule A with respect to any Selected State, and
with all by-laws, regulations, rules and operating guidelines of the Selected
Network ("Network Rules") related to User's ownership, control or operation of
the ATMs serviced by SPI pursuant to the Agreement (the "Covered ATMs") and
shall obtain all consents, approvals, authorizations or orders of any
governmental agency or body required for the execution, delivery and performance
of the Agreement and this Addendum.
(c) User will provide prompt written notice to the Bank of:
(i) any material adverse change in the assets, operations
or condition, financial or otherwise, of User;
(ii) the threat or filing of any litigation against User;
(iii) any investigation of User or any principal of User by
any federal, state or local governmental agency;
(iv) any disciplinary action taken by any Network against
User or any principal of User; or
(v) the occurrence of any other item set forth at
Subsection 2(e).
(d) As soon as possible and in any event within sixty (60) days
after the end of each quarter, commencing with the calendar quarter in which the
date of this Addendum falls, User will provide Bank with a copy of the User's
balance sheet as of the end of such period and related profit, loss and surplus
statements.
(e) User agrees that this Addendum applies only to the Covered
ATMs and that Bank shall be the exclusive sponsor of such Covered ATMs for the
purposes of any Network to which SPI provides Gateway services, other than
Networks to which Bank does not have the right or authority to provide
sponsorship services.
(f) Except as required to comply with Applicable Laws related to
sponsorship of ATMs in any Selected State, User shall not in any way indicate
that Bank or SPI endorse User's activities, products or services. The parties
hereto are and shall remain independent contractors, and neither they, nor their
respective individual employees shall have or hold themselves out as having, any
power to bind the other to any third party. Nothing contained in this Addendum
shall be construed to create or constitute a partnership, joint venture,
employer-employee or agency relationship among the parties.
3
<PAGE>
(g) If Bank is to act as sponsor with respect to Covered ATMs in
any Selected State, User shall
(i) provide Bank advance written notice of the proposed
locations of each Covered ATM in any such Selected
State, including the identity of operators of the
premises where such Covered ATMs are located, and of
any other information related to such Covered ATM or
location as Bank shall reasonably require;
(ii) provide Bank advance written notice of any Applicable
Laws related to the establishment and operation of
ATMs at each such location, other than federal laws
and regulations;
(iii) assist Bank in preparing any and all filings or
applications required by Applicable Law with respect
to the establishment and operation of ATMs in each
Selected State;
(iv) immediately notify Bank of any communication, whether
oral or written (including electronic communication),
from any representative of federal, state, or local
government related to any Covered ATM; and
(v) engage in no act or omission related to any Covered
ATM which would cause Bank to be in violation of any
Applicable Law.
5. SECURITY DEPOSIT
Within three (3) business days of notice from SPI, User shall establish
and maintain with Bank a segregated, restricted interest-bearing deposit account
as to which User shall not have withdrawal privileges, dominion or control (the
"Cash Collateral Account"), and deposit into such Cash Collateral Account
collected funds in such amount requested by Bank in its sole discretion, but not
in excess of one (1) days settlement or $10,000, whichever is greater. User
hereby pledges and grants to Bank and SPI a security interest in the Cash
Collateral Account and all money in the Cash Collateral Account and proceeds
thereof as security for prompt payment in full of all User's obligations under
the Agreement and this Addendum, including its obligations to any Network for
fees, fines or assessments, and authorizes Bank and SN to exercise a right of
set-off against funds in the Cash Collateral Account or any other funds or
payment due and owing to User under the Agreement, including interchange
payments. User agrees to take any steps necessary to ensure the attachment,
perfection or protection of Bank's and SPI's security interest in the Cash
Collateral Account.
6. COVENANTS OF BANK
(a) Bank shall act as User's sponsor with respect to the
participation of the Covered ATMs in each Selected Network in accordance with
the Network Rules of each such Selected Network and with respect to the laws and
regulations set forth at Schedule A for each Selected State.
4
<PAGE>
(b) Bank shall maintain its status as member or participant in
good standing with each Selected Network and shall comply with all Network Rules
applicable to Bank's sponsorship of User's participation in each such Selected
Network; provided, however, that Bank may terminate its sponsorship with User in
any Selected Network (i) immediately upon written notice to User if Bank's
authority to participate in such Selected Network or act as sponsor of User in
such Selected Network is terminated by such Selected Network or (ii) upon thirty
(30) days prior written notice, if Bank determines to terminate its membership
or participation in such Selected Network.
(c) Bank may, in its sole discretion, determine not to sponsor any
Covered ATM.
7. COVENANTS OF SPI
SPI hereby agrees to accept Bank as User's sponsor with respect to the
Selected Networks.
8. FEES
In addition to all other fees set forth in the Agreement, User shall
compensate Bank for its services hereunder in accordance with the provisions of
Schedule C attached hereto and the fee payment provisions of the Agreement. Bank
shall pay its own costs of membership or participation in each Selected Network,
but User shall pay any third party fee or charge incurred as a result of Bank's
sponsorship of User.
9. TERM; TERMINATION
(a) This Addendum shall be effective as of the date first written
above and shall continue in effect during the term, including the initial term
and any renewal term, of the Agreement, unless earlier terminated by any party
pursuant to this Section. This Addendum will terminate without further action of
any party upon the expiration or termination of the Agreement.
(b) Any party may terminate this Addendum as of the end of the
initial term or any renewal term of the Agreement by providing sixty (60) days
prior written notice to the other parties.
(c) Bank or SPI may terminate this Addendum or Bank's sponsorship
of User in any Selected Network or with respect to the specified Applicable Laws
of any Selected State upon occurrence or discovery of one or more of the
following events:
(i) Immediately upon notice to User of the occurrence at
any time of any of the conditions set forth at
Subsections 2(e)(i), (ii), (iv), (v) or (vi) or
4(c)(i) or (iv).
(ii) Thirty (30) days after written notice by Bank or SPI
to User, upon the occurrence of any of the conditions
set forth Subsections 2(e)(iii) or 4(c)(ii) or (iii).
5
<PAGE>
(iii) In the event any financial statement, representation,
warranty, statement or certificate furnished is
materially false or misleading.
(iv) Immediately upon the occurrence of any other
circumstance with respect to this Addendum that may
reasonably be expected to have an adverse effect on
Bank.
(d) In addition to the foregoing, any party may terminate this
Addendum upon provision of thirty (30) days prior written notice to the other
parties of any material breach of this Addendum by another party, provided that
the defaulting party has not cured such breach within such thirty (30) day
period.
(e) Upon any termination of this Addendum by Bank or SPI pursuant
to Subsections 9(c) or (d) above, User shall pay to Bank an early termination
fee equal to the number of months remaining in the then-current term multiplied
by the greater of (i) the highest average monthly amount of fees and charges
incurred by User hereunder in any consecutive three (3) month period or (ii)
$5,000 (the "Early Termination Fee"). The parties agree that in the event of
termination pursuant to Subsections 9(c) or (d) above, it would be extremely
difficult and impracticable to fix the actual damages to SPI resulting from such
termination, and that, therefore, User shall pay to Bank the Early Termination
Fee set forth above as liquidated damages and not as a penalty. The parties
further agree that the Early Termination Fee represents a reasonable endeavor by
the parties to estimate fair compensation for the foreseeable losses that might
result from such termination.
10. INDEMNIFICATION
User shall indemnify and hold harmless Bank and SPI, their affiliates
(including parents and subsidiaries), and their respective officers, directors,
employees, successors and assigns, from and against any and all direct or
contingent losses, costs, claims, demands, and causes of action (including,
without limitation, the cost of investigating the claim, the cost of litigation,
and reasonable attorneys' fees, whether or not legal proceedings are instituted)
paid or incurred by or on behalf of Bank or SPI as a result of User's violation
of any of the terms of this Addendum, any Schedule hereto, Network Rules, or
Applicable Laws, or otherwise arising from or related to Bank's sponsorship of
User in any Selected Network.
11. SURVIVAL
All representations and warranties, the rights and obligations of the
parties pursuant to Sections 5, 9(e) and 10 and User's obligations to pay
accrued fees shall survive the expiration or termination of this Agreement.
12. NOTICES
For purposes of the notices provision of the Agreement, notices to Bank
shall be sent to: Concord EFS National Bank, 2525 Horizon Lake Drive, Suite 120,
Memphis, Tennessee 38133, Attention: Senior Vice President.
6
<PAGE>
13. AMENDMENT OF AGREEMENT
Except as amended, modified and supplemented hereby, the Agreement is
hereby ratified and shall continue in full force and effect in accordance with
its terms. Bank shall be the beneficiary, to the same extent as SPI, of each
representation, warranty, covenant and condition of User under the Agreement and
of all disclaimers and limitations of liability of SPI thereunder, but shall in
no way be liable for any act or omission of SPI.
IN WITNESS WHEREOF, this Addendum is executed by the parties as of the
date and year below.
Concord EFS National Bank
By: /s/ E. T. Haslam
------------------------------------------------
Name and Title E. T. Haslam, CFO
CARDTRONICS, LP
By: /s/ Jack M. Antonini
------------------------------------------------
Name and Title: Jack M. Antonini, President and CEO
STAR PROCESSING, INC.,
A CONCORD EFS, INC. COMPANY
By: /s/ E. T. Haslam
------------------------------------------------
Name and Title: E. T. Haslam, CFO
7
<PAGE>
SCHEDULE A
SELECTED NETWORKS
User, Bank and SPI hereby agree that Bank shall act as sponsor for
User, pursuant to the terms and conditions of the Addendum, with respect to the
following Networks and in the states identified below:
[User and Bank to initial]
_____ _____ Cirrus/ MasterCard
_____ _____ PLUS/ VISA
_____ _____ American Express Card
_____ _____ Discover Card
_____ _____ NYCE
_____ _____ Infinet
_____ _____ Honor
_____ _____ Maestro U.S.A. Inc.
_____ _____ Interlink
_____ _____ QUEST EBT
/s/ JMA ____ AFFN
-------
_____ _____ STAR
/s/ JMA ____ Other (Specify) CU24
-------
[User and Bank to initial]
_____ _____ West Virginia (Section 3lA-8-l26, West Virginia Code Ann.
(Supp. 1998), and Title 106, Series 7 of the West Virginia Division of Banking's
Legislative Rules.)
Pursuant to West Virginia law, User will maintain a sign on
each Covered ATM, in a size and format acceptable to Bank
showing the sponsorship of Bank with respect to such ATM.
_____ _____ Connecticut (Pursuant to Connecticut Division of Banking's
Legislative Rules)
Pursuant to Connecticut law, User will maintain a sign on each
Covered ATM, in a size and format acceptable to Bank showing
the sponsorship of Bank with respect to such ATM.
Schedule A - 1
<PAGE>
SCHEDULE B
LITIGATION LISTINGS
User (Cardtronics) is not involved in any litigation that might
adversely affect its continuing obligations. User has initiated numerous
lawsuits against various merchants to enforce the terms and conditions of its
contracts with said merchants.
Schedule A - 1
<PAGE>
SCHEDULE C
FEES
1. Start Up Fee $ *
2. All applicable network transaction fees including but not limited to:
ATM fees, fines and assessments, POS fees, adjustment fees and
interchange fees/payments per the interchange table will be passed
through as incurred by SPI.
3. Sponsorship Transaction fees - Waived
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
Schedule C - 1
<PAGE>
STAR(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES
GATEWAY SERVICE
This Addendum is dated April 24, 2003 by and between STAR PROCESSING, INC., A
CONCORD EFS, INC. COMPANY f/k/a MONEY ACCESS SERVICE INC. with offices located
at 1100 Carr Road, Wilmington, Delaware 19809 ("SPI", "we" or "us") and
CARDTRONICS, LP with offices located at 3000 HAYES, SUITE 101, HOUSTON, TEXAS
77082 ("User" or "you") and shall supplement, amend and become part of the MONEY
ACCESS SERVICE Processing Agreement dated September 6, 2001, between SPI and
User ("SPI Processing Agreement").
BACKGROUND
In addition to the SPI Processing Services set forth in the SPI
Processing Agreement, SPI offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). User elects the Additional
Processing Services described herein.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, SPI and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS
All capitalized terms used in this Addendum and not otherwise defined
herein shall have the meanings set forth in the SPI Processing Agreement or
Exhibit A thereto.
2. GATEWAY SERVICE
You hereby select and we hereby agree to provide you with Gateway
Services to the Networks designated by your INITIALS below:
_____ Cirrus/ MasterCard _____Cards _____ ATMs
_____ PLUS/VISA _____Cards _____ ATMs
_____ American Express Card
_____ Discover Card
_____ NYCE
_____ Maestro U.S.A. Inc.
_____ Interlink
/s/ JMA Other (Specify) AFFN
-------
/s/ JMA Other (Specify) CU24
-------
At all times during the provision of Gateway Services with respect to
each Network and consistent with User's category of participation in each
Network, User will remain an active member, participant, card issuer or acquirer
of Transactions in good standing with each Network that User accesses through
the Gateway Service.
1
<PAGE>
3. OTHER USER RESPONSIBILITIES
You are solely responsible for complying in all respects with the
rules, regulations, bylaws and/or standards of the other Network(s) to which we
provide Gateway Service pursuant to this Addendum and with applicable laws and
regulations affecting User's cards, Terminals and Transactions. Notwithstanding
any other provision of this Agreement, SN shall have no responsibility for
losses caused, in whole or in part, by the error or delay of User in complying
with applicable laws or regulations or Network rules, regulations, bylaws or
standards in initiating or responding to chargebacks, representments,
adjustments, and every other category of fees presently existing and hereafter
imposed in connection with inquiries or other Network error resolution
processes.
4. FEES
For the Additional Processing Services described in this Addendum, you
agree to pay SPI the applicable fees in accordance with the schedule of fees set
forth on Exhibit GS-1 hereto. You will be solely responsible for all other
Networks' membership and other fees, charges, assessments, fines, penalties and
every other category of fees presently existing and hereafter imposed in
connection with your participation in, or processing or settlement of
Transactions in such Network through the Gateway Service. We will pay you on a
net basis, fees we receive from Networks for your benefit, subject to our rights
hereunder and under applicable law or regulation.
5. SETTLEMENT PROCEDURES
SPI will calculate User's settlement obligation for each Business Day
at such time as SPI shall set in its reasonable discretion. Settlement shall be
on a net basis across all Networks selected by User, unless otherwise designated
by SPI, and will be based on the Transaction records which SPI has processed
between the cut-off time on that Business Day and the cut-off date time on the
immediately preceding Business Day, and may include any fees and other charges
payable by or due to User for that period. SPI also may include in net
settlement User's settlement obligations in the STAR Network. User hereby grants
and authorizes SPI to exercise a right of set-off against funds payable to User
pursuant to this Agreement or any other agreement between SPI and User and other
funds, including any pledge accounts, that User maintains with SPI or any
Network. SPI may apply all such amounts as payment on User's obligations in a
priority or order of payment determined by SPI in its sole discretion.
6. EFFECTIVE DATE AND TERM
This Addendum shall be effective when fully executed by us in original
form and the required payments hereunder have been delivered to us. This
Addendum shall be for a term coterminous with the remaining initial term or
current renewal term of the SPI Processing Agreement and shall, thereafter, be
renewed automatically for successive one (1) year terms unless terminated in
accordance with paragraph 17 of the SPI Processing Agreement.
This Addendum shall terminate immediately upon expiration or earlier
termination of the SPI Processing Agreement.
2
<PAGE>
7. AMENDMENT OF SPI PROCESSING AGREEMENT
Except as otherwise amended hereby, the SPI Processing Agreement is
hereby ratified in all respects and shall remain in full force and effect.
8. AGREEMENT TO ADDENDUM
User has agreed to the terms of this Addendum by at the time of its
execution of the SPI Processing Agreement or at any later time by execution of
an Addendum for Schedule of User's Selection of Additional Processing Services
to supplement the SPI our rights hereunder and under applicable law or
Processing Agreement. The signatures of SPI and regulation. User set forth in
the SPI Processing Agreement and the above referenced Addendum shall serve as
evidence of the parties' agreement to this Addendum.
3
<PAGE>
EXHIBIT GS-I
SCHEDULE OF FEES
FOR ADDITIONAL PROCESSING SERVICES
GATEWAY SERVICE
The fees payable by User for Gateway Service shall be as follows:
PROCESSING FEES
1. A per transaction processing fee including withdrawals, transfers,
balance inquiries, declines, reversals and terminal balancing as
follows:
1 -- 3,000,000 transactions $ *
3,000,001 -- 5,000,000 transactions $ *
Over 5,000,000 transactions $ *
2. Network sponsorship fees for national and regional networks are
included in the transaction processing fee.
All applicable regional and national network transaction fees including but not
limited to: indirect processing, licensing, gateway processing, charge back,
adjustment or other fees relating to participation in a particular network, will
be passed through as incurred by SPI.
EXHIBIT GS-I - 1
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
<PAGE>
STAR(R) PROCESSING AGREEMENT
ADDENDUM
FOR
SCHEDULE OF USER'S SELECTION
OF
ADDITIONAL PROCESSING SERVICES
This Addendum is dated April 24, 2003 by and between STAR PROCESSING, INC., A
CONCORD EFS, INC. COMPANY f/k/a MONEY ACCESS SERVICE INC. with offices located
at 1100 Carr Road, Wilmington, Delaware 19809 ("SPI", "we" or "us") and
CARDTRONICS, LP with offices located at 3000 HAYES, SUITE 101, HOUSTON, TEXAS
77082 ("User" or "you") and shall supplement, amend and become part of the MONEY
ACCESS SERVICE Processing Agreement dated September 6, 2001 between SPI and User
("SPI Processing Agreement").
BACKGROUND
In connection with the SPI Processing Services set forth in the SPI
Processing Agreement, SPI offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). At the time of execution of
the SPI Processing Agreement or at any later time, User may select Additional
Processing Services. User's most recent selection of Additional Processing
Services is itemized herein. Any previous selections by User of Additional
Processing Services are reflected on earlier addenda. The features of and
charges for the Additional Processing Services that User selects on this addenda
are set forth in separate Addenda to the SPI Processing Agreement which are
attached hereto and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, SPI and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS. All capitalized terms used in this Addendum and not
otherwise defined herein shall have the meanings set forth in the SPI Processing
Agreement or Exhibit A thereto.
2. USER'S SELECTION OF ADDITIONAL PROCESSING SERVICES. From the list
below, User selects those Additional Processing Services by which it places its
initials.
________ Advanced ATM Functionality
________ Cardholder Service Charging Service
________ Card Production Service
________ Dial-Up ATM
________ EBT Processing Service
________ Electronic Banking Service
1
<PAGE>
/s/ JMA Gateway Service
--------
/s/ JMA Gateway Sponsorship
--------
________ MasterCard Debit Card/Visa Check Card
________ On-Line Services
________ Signature Debit Fraud Risk Identification
Service
________ Self Service Banking
________ Telephone Banking Card Service
________ Verified by VISA Processing
________ Other Special Terms
3. CONFIRMATION OF SPI PROCESSING AGREEMENT. Except as otherwise amended
hereby, the SPI Processing Agreement is hereby ratified in all respects and
shall remain in full force and effect.
4. AGREEMENT TO SEPARATE ADDENDA. The execution by SPI and User of this
Addendum for Schedule of User's Selection of Additional Processing Services
shall evidence the parties' agreement to the terms, conditions and pricing set
forth in the separate Addenda for each of the Additional Processing Services
that User selects hereinabove.
5. NEWLY SELECTED ADDITIONAL PROCESSING SERVICES. This Addendum reflects
User's newly selected Additional Processing Services and shall supplement any
earlier addenda executed for such purpose.
In Witness Whereof, the parties hereto have executed this Addendum by
their duly authorized representatives on the date first written above.
2
<PAGE>
STAR PROCESSING, INC.,
A CONCORD EFS, INC. COMPANY
By: /s/ E. T. Haslam
-----------------------------------------------
E. T. Haslam, CFO
-----------------------------------------------
Name and Title (Printed)
CARDTRONICS, LP
By: /s/ Jack M. Antonini
-----------------------------------------------
Jack M. Antonini, President and CEO
-----------------------------------------------
Name and Title (Printed)
_______________________________________________
User Identification Number
3
<PAGE>
STAR(R) PROCESSING AGREEMENT
ADDENDUM
FOR
SCHEDULE OF USER'S SELECTION
OF
ADDITIONAL PROCESSING SERVICES
This Addendum is dated May 2, 2003 by and between STAR PROCESSING,
INC., A CONCORD EFS, [NC. COMPANY f/k/a MONEY ACCESS SERVICE INC. with offices
located at 1100 Carr Road, Wilmington, Delaware 19809 ("SPI", "we" or "us") and
CARDTRONICS, LP with offices located at 3110 HAYES ROAD. SUITE 300, HOUSTON,
TEXAS 77082 ("User" or "you") and shall supplement, amend and become part of the
MONEY ACCESS SERVICE Processing Agreement dated September 6, 2001 between SPI
and User ("SPI Processing Agreement").
BACKGROUND
In connection with the SPI Processing Services set forth in the SPI
Processing Agreement, SPI offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). At the time of execution of
the SPI Processing Agreement or at any later time, User may select Additional
Processing Services. User's most recent selection of Additional Processing
Services is itemized herein. Any previous selections by User of Additional
Processing Services are reflected on earlier addenda. The features of and
charges for the Additional Processing Services that User selects on this addenda
are set forth in separate Addenda to the SPI Processing Agreement which are
attached hereto and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, SPI and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS. All capitalized terms used in this Addendum and not
otherwise defined herein shall have the meanings set forth in the SPI Processing
Agreement or Exhibit A thereto.
2. USER'S SELECTION OF ADDITIONAL PROCESSING SERVICES. From the list
below, User selects those Additional Processing Services by which it places its
INITIALS.
________ Advanced ATM Functionality
/s/ JMA ATM Key Initialization System
--------
________ Cardholder Service Charging Service
________ Card Production Service
________ Dial-Up ATM
1
<PAGE>
________ EBT Processing Service
________ Electronic Banking Service
________ Gateway Service
________ Gateway Sponsorship
________ MasterCard Debit Card/Visa Check Card
________ On-Line Services
________ Signature Debit Fraud Risk Identification
Service
________ Self Service Banking
________ Telephone Banking Card Service
________ Verified by VISA Processing
________ Other Special Terms
3. CONFIRMATION OF SPI PROCESSING AGREEMENT. Except as otherwise amended
hereby, the SPI Processing Agreement is hereby ratified in all respects and
shall remain in full force and effect.
4. AGREEMENT TO SEPARATE ADDENDA. The execution by SPI and User of this
Addendum for Schedule of User's Selection of Additional Processing Services
shall evidence the parties' agreement to the terms, conditions and pricing set
forth in the separate Addenda for each of the Additional Processing Services
that User selects hereinabove.
5. NEWLY SELECTED ADDITIONAL PROCESSING SERVICES. This Addendum reflects
User's newly selected Additional Processing Services and shall supplement any
earlier addenda executed for such purpose.
In Witness Whereof, the parties hereto have executed this Addendum by
their duly authorized representatives on the date first written above.
STAR PROCESSING, INC.,
A CONCORD EFS, INC. COMPANY
By: /s/ E. T. Haslam
-----------------------------------------------
E. T. Haslam, CFO
-----------------------------------------------
Name and Title (Printed)
2
<PAGE>
CARDTRONICS, LP
By: /s/ Jack M. Antonini
-----------------------------------------------
Jack M. Antonini, President and CEO
-----------------------------------------------
Name and Title (Printed)
_______________________________________________
User Identification Number
3
<PAGE>
STAR(R) PROCESSING AGREEMENT
ADDENDUM
FOR
ADDITIONAL PROCESSING SERVICES
ATM KEY INITIALIZATION SYSTEM
This Addendum is dated May 2, 2003 by and between STAR PROCESSING,
INC., A CONCORD EFS, [NC. COMPANY f/k/a MONEY ACCESS SERVICE INC. with offices
located at 1100 Carr Road, Wilmington, Delaware 19809 ("STAR", "we" or "us") and
CARDTRONICS, LP with offices located at 3110 HAYES ROAD, SUITE. 300, HOUSTON,
TEXAS 77082 ("User" or "you") and shall supplement, amend and become part of the
MONEY ACCESS SERVICE Processing Agreement dated September 6, 2001, between STAR
and User ("STAR Processing Agreement").
BACKGROUND
In addition to the STAR Processing Services set forth in the STAR
Processing Agreement, STAR offers other services which facilitate the processing
of Transactions ("Additional Processing Services"). User elects the Additional
Processing Services described herein.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, STAR and User agree to be legally bound by the terms of this Addendum
as hereinafter set forth.
1. DEFINED TERMS. All capitalized terms used in this Addendum and not
otherwise defined herein shall have the meanings set forth in the STAR
Processing Agreement or Exhibit A thereto.
2. THE SERVICE. You hereby request and we hereby agree to provide you with
the ATM Key Initialization System (the "Key Service"), which is a method of
establishing a unique cryptographic key for communication between individual
User ATMs and our host ATM driving system.
3. STAR RESPONSIBILITIES. STAR will administer the Key Service for ATMs
for which STAR provides ATM driving services under the STAR Processing Agreement
so that each ATM can produce a unique cryptographic key for communication with
the STAR host processing system either (i) by providing User cryptographic key
components that User may manually load in ATMs ("First Key Service") or (ii) by
electronically delivering to User's ATM an unique cryptographic key ("Remote Key
Update") in order to update an existing cryptographic key. The First Key Service
component of the Key Service also will include a voice response unit or other
system for registering the loading of such key components with the STAR host
processing system.
4. USER RESPONSIBILITIES. User will be responsible for properly following
instructions for use of the Key Service, including correct entry of data
elements, as provided by STAR from time to time. User will safeguard any and all
components of the Key Service that are under User's control at any time,
including any passwords, access codes, cryptographic key components, user
identification codes, and terminal identification codes, that provide access to,
1
<PAGE>
or are used in providing, any element of the Key Service regardless of the form
in which such components are provided.
5. FEES. For the Additional Processing Services described in this
Addendum, User agrees to pay STAR the applicable fees in accordance with the
schedule of fees set forth in Exhibit KEY-I hereto.
6. TERM. This Addendum shall be effective when fully executed by both
parties in original form and shall be for a term coterminous with the STAR
Processing Agreement.
7. NO WARRANTIES. IN ADDITION TO THE DISCLAIMER OF WARRANTIES IN THE STAR
PROCESSING AGREEMENT, THE KEY SERVICE IS NOT WARRANTED TO BE FREE FROM ERROR OR
INTERRUPTION OR TO PREVENT UNLAWFUL ACCESS TO ANY SYSTEM OR TRANSACTION. NO
DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS ADDENDUM
SHALL CONSTITUTE WARRANTIES OF ANY KIND.
8. CONFIRMATION OF AGREEMENT. Except as otherwise amended hereby, the STAR
Processing Agreement is hereby ratified in all respects and shall remain in full
force and effect.
2
<PAGE>
EXHIBIT KEY-1
SCHEDULE OF FEES
FOR ADDITIONAL PROCESSING SERVICES
ATM KEY INITIALIZATION SYSTEM
User agrees to pay SPI:
ANNUAL FEE
1. A Unique Key VRU Subscription Fee to access VRU system of $ * per
year, which shall be billed in monthly increments of $ * Waived
ONE-TIME SETUP
1. Two comvelopes per Terminal Waived
2. Two Servicer ID's Waived
RECURRING FEES
1. A Comvelope re-order fee shall be based on the following tier below:
Comvelopes** Fee
------------ ---
10 * Waived
50 * Waived
2. A User ID setup fee of $ * per User ID requested after the initial
two (2). Waived
3. A Remote Key Update fee of $ * per Terminal after the first one.
Waived
** Must be ordered in increments of 10.
NOTE: EACH KEY INJECTION
REQUIRES TWO COMVELOPES
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
EXHIBIT KEY-1 - 1