In consideration of the foregoing, and for other good and valuable consideration, it is agreed that:
- CUSTOMER shall have a lien upon the credit balances in the ACCOUNT to secure the repayment of all funds in the ACCOUNT, which lien shall be superior to any lien or claim of the Bank or Contractor with respect to such account.
- The Bank shall not be responsible for (a) the application of funds withdrawn from the ACCOUNT, or (b) determining whether any person is entitled to receive funds ordered or directed to be paid by the Contractor. Provided that the Bank exercises ordinary care, after receipt by the Bank of written directions from the duly authorized representative of CUSTOMER or the Contractor, the Bank shall act thereon and shall be under no liability to any party hereto or any third party for any action taken or not taken in accordance with such written directions, including without limitation any directions in the form of electronic transmission, file, mail or other electronic instruction or transaction, including automated clearing house entry, or for the breach of any warranty or representation by CUSTOMER or the Contractor, as the case may be. Any such written directions or instructions received by the Bank from or at the direction of the Director, Division of Financial Strategies and Evaluation, CUSTOMER, or from the duly authorized representative of same may, in so far as the rights, duties and liabilities of the Bank are concerned, be considered as having been properly issued and filed with the Bank by CUSTOMER.
- CUSTOMER or its authorized representatives may request copies of the establishment and maintenance of, and transactions in the ACCOUNT at CUSTOMER’s expense. Such copies shall be available within a reasonable time. Such records shall be preserved by the Bank for a period of six (6) years following the close of the calendar year in which the records were created unless prior to that time, the Bank has been notified in writing by CUSTOMER that preservation of such records for a longer period of time is necessary for purposes of litigation or dispute.
- In the event of the service of any writ of attachment, levy of execution, or commencement of garnishment proceedings with respect to the ACCOUNT, the Bank will promptly notify CUSTOMER.
- CUSTOMER will arrange for a Letter of Credit (irrevocable to the extent obligations arise when the Bank has acted in accordance with instructions of the Contractor) to the Bank, for the benefit of the ACCOUNT. CUSTOMER authorizes the Bank to issue a 1031 draw-down request (the “Draw-down”) against the Letter of Credit in accordance with the Draw-down instructions agreed to by the parties (the “Draw-down Instructions”), to the appropriate Federal Reserve Bank. The Draw-downs shall be limited to the amount of (a) checks and other items, including electronic funds transfer (EFT) items issued by or in the name of the Contractor, presented for payment each day or projected to be presented for payment each day (individually, “Item” and collectively, the “Items”); (b) any withdrawals or debits to the ACCOUNT in accordance with ordinary procedures for processing any Items, including, without limitation, any adjustments and charge backs in connection with any Items (the “Adjustments”), and (c) prior overdrafts, if any, less other collected deposits. In conjunction with any transfers of funds, the parties agree to be bound by the then current Operating Rules and Guidelines of the National Automated Clearinghouse Association (the “NACHA Rules”), except that with respect to the Government, as such NACHA Rules are modified by Department of the Treasury Regulations. Notwithstanding anything to the contrary herein, the Bank shall be under no obligation to follow the instructions or directions of CUSTOMER or the Contractor to reverse any entries or Items unless such reversal is in accordance with the NACHA Rules or Department of Treasury Regulations. The Bank agrees to service the ACCOUNT in the manner set forth herein and based on the specifications and pricing schedules contained in the addenda hereto.
The Bank and the Contractor each agree to exercise good faith to keep all withdrawals restricted so as not to cause the Letter of Credit total monthly authorization to be exceeded. In the event Items or other withdrawals presented or projected to be presented against the ACCOUNT exceed the Letter of Credit total monthly authorization, the Bank will use commercially reasonable efforts to notify CUSTOMER before [TIME] [TIME ZONE], and CUSTOMER shall, within 48 hours from the time of the request, increase the Letter of Credit total monthly authorization, as necessary, to cover the excess amount. In the event that CUSTOMER fails to timely respond and the Bank processes Items exceeding the amount of the Letter of Credit, the Bank may include on its monthly fee schedule any related fees and charges, plus interest, if applicable. As used herein, banking day means that part of any business day on which an office of the Bank is open to the public for carrying on substantially all of its banking functions.
The Contractor and the Bank agree to notify each other within [NUMBER] days after learning of the occurrence of any actions or omissions of which the party becomes aware that may be in violation of the Tripartite Agreement or which may be otherwise fraudulent or unauthorized.
The Bank, Contractor and CUSTOMER agree that no person other than the parties to the Agreements are intended to be the beneficiaries of the Tripartite Agreement or the Agreements nor shall any other person have rights arising under same.
- This Tripartite Agreement, with all its Provisions and covenants, shall be in effect for a term of
NUMBER years beginning on
DATE and ending on
- Without cause, the Contractor or the Bank may terminate this Tripartite Agreement on the annual anniversary of the effective date of the Tripartite Agreement by providing written notification of termination to the other two (2) parties at least
NUMBER days prior to the expiration of the then current year term of this Tripartite Agreement.
- The Contractor may terminate this Tripartite Agreement at any time with a minimum of
NUMBER days notice to the Bank if the Contractor finds that the Bank has failed to substantially perform its obligations under this Tripartite Agreement or that the Bank is performing its obligations in a manner that precludes the Contractor from administering the applicable program in an effective and efficient manner. CUSTOMER may terminate this Tripartite Agreement at any time by providing written notice to the other two (2) parties.
- Notwithstanding Covenants 6, 7 and 8, in the event the Agreements are not renewed or are terminated, this Tripartite Agreement among CUSTOMER, the Contractor, and the Bank will automatically be terminated upon the delivery of written notice to the Bank. This Tripartite agreement will terminate automatically at the conclusion of the term listed in (6), above.
- The Bank agrees that it shall not enter into any agreement with any other party to carry out the primary responsibilities of this Tripartite Agreement without the prior written approval of CUSTOMER.
- The Bank, the Contractor, and CUSTOMER agree to comply with the provisions set forth in any attachments or addenda to this Tripartite Agreement, which are attached hereto and incorporated herein.
- The Bank, the Contractor, and CUSTOMER agree that, in the event of any conflict of terms, this Tripartite Agreement supersedes the Bank’s Service Terms for any and all accounts and services that are covered by this Tripartite Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement, including the signature pages, to be executed as of the day and year first above written.