EXHIBIT 10.19
MASTER AGREEMENT
for
CASH MANAGEMENT SERVICES
This Master Agreement for Cash Management Services ("Agreement") is entered into
this 17th day of February, 1999 between NORWEST BANK SOTA, NATIONAL ASSOCIATION
(the "Bank") and the undersigned customer LTCAmerica Holding, Inc. ("the
Company").
The Bank offers and provides certain cash management services to its commercial
customers, and the Company anticipates that it will from time to time engage the
Bank to perform all or some cash management services under this Agreement (the
"Services").
The Bank and the Company agree:
1. SCOPE OF THE SERVICES. The Bank shall provide the Company with the cash
management services set forth below and those additional Services
subsequently agreed to by the Bank. The Services are described in
general terms in separate writings which are specifically incorporated
into this Agreement (the "Product Descriptions"). The Company agrees to
the terms and conditions contained in the applicable Product
Description(s); the Bank's user guide (the "Guide"), if any, for each
Service it requests; and the Bank's terms and conditions applicable to
each account affected by the Services (the "Account Terms"). Delivery
and use of a Service shall be conclusively deemed to be agreement to
the provisions contained in the applicable Product Description and
Guide. The Bank may amend a Product Description, a Guide, or the
Account Terms from time to time upon fourteen (14) days prior written
notice. The Company acknowledges receiving a copy of the Account Terms
and of the Product Description and Guide, if any, for the Services it
has initially requested.
2. PERFORMANCE OF THE SERVICES. The Bank shall perform the Services in
accordance with reasonable commercial standards applicable to the
Bank's business, in conformity with rules, regulations or laws
governing the activities of the Bank, and in accordance with this
Agreement.
3. TERM. This agreement shall continue in effect unless terminated by
either party upon sixty (60) days prior written notice. The Bank may
immediately terminate this Agreement without notice to the Company if
the Company files, or has filed against it, a petition under the U.S.
Bankruptcy Code or a similar state or federal law. Each additional
Service shall commerce within a reasonable time after the Bank agrees
to provide it and shall continue in effect until terminated by written
notice or termination of this Agreement.
4. SERVICE FEES; TAXES; INVOICE; PAYMENT. The Company agrees to pay the
Bank for the Services in accordance with the Bank's fee schedule(s).
The Bank may modify its fee schedule(s) at any time upon prior notice.
The Company also agrees to pay an amount equal to any taxes applicable
to the Services, however designated, exclusive of taxes
based on the net income of the Bank. Except as otherwise agreed in
writing, all fees and taxes shall be charged monthly against the
Company's accrued earnings allowance. The Bank may debit the Company's
account(s) with the Bank for, or may ▇▇▇▇ the Company and the Company
agrees promptly to pay, any amount by which the fees or taxes exceed
such earnings allowance.
5. LIABILITY; INDEMNIFICATION. The Bank shall be responsible only for
performing the Services as expressly provided for in this Agreement,
and shall be liable only for claims, demands, judgements, expenses and
losses incurred by the Company, its directors, officers, employees and
agents directly resulting from the Bank's failure to perform in
accordance with the Product Description and Guide or the negligence or
intentional misconduct of the Bank or its affiliates and agents, in
performing those Services (including reasonable attorneys' fees and
legal expenses). The Bank shall have no liability for failure to
perform or delay in performing the Services if such failure or delay-is
due to circumstances beyond the Bank's reasonable control. Each party
agrees to make reasonable efforts to prevent such occurrences. In no
event shall the Bank have any liability for any consequential, special,
punitive or indirect loss or damage. The Company shall promptly furnish
proof of loss in written form to the Bank, and shall provide the Bank
all reasonable assistance in recovering a loss. If the Company is
reimbursed by or on behalf of the Bank, the Bank or its designee shall
be subrogated to all rights of the Company. Except to the extent that
the Bank is liable under the terms of this Agreement, the Company
agrees to indemnify and hold the Bank, its directors, officers,
employees and agents harmless form all claims, demands, judgements, and
expenses (including their reasonable attorneys' fees and legal
expenses) arising out of or in any way connected with the performance
of the Services. The Bank and the Company agree that the provisions of
this paragraph 5 shall survive termination of this Agreement
6. AFFILIATES. Present and future Bank affiliates may from time to time
provide one or more Services under the terms of this Agreement. In that
event, the Bank shall notify the Company that the affiliate has agreed
to provide the Service(s), the term "Bank" shall include the affiliate
with respect to the Service, and the Bank and the affiliate may share
any information helpful in providing the Service. The Company
acknowledges that its consent to the release of information is not a
condition of doing business with the Bank or its affiliates.
7. GENERAL. The laws of the state in which the principal office of the
particular Bank providing the Service is located shall govern for all
purposes. This Agreement shall constitute the entire agreement between
the Bank and the Company and supersede prior oral or written
representations, conditions, warranties, understandings, proposals or
agreements regarding the Services. Headings do not constitute a part of
this Agreement. Any notice or other communication may be sent to the
Company at its then current address on file with the Bank. The Bank and
the Company will have reasonable time after receipt of any notice or
other communication to act on it. No provision may be modified except
in writing signed by the party against whom the modification is to be
enforced. No waiver of any right on one occasion will be a waiver of
the same or any
other right on a subsequent occasion. The Bank or the Company may
assign this Agreement to any successor by merger, consolidation or
corporate reorganization. Any invalidity, in whole or in part of any
provision shall not affect the validity of any other provision. The
Bank may grant credit to the Company in connection with the Services,
but is not required to do so. Delivery and use of any informational
Service occurs when the information is provided. The Bank may, without
notice, refuse to honor any payment transfer or withdrawal order which
would result in an overdraft, even if it has previously allowed
overdrafts. The Bank may establish cut-off times, and may change those
cut-off times upon reasonable notice to the Company. Unless
specifically defined in the applicable Product Description or Guide,
the term "banking day" means that part of a business day occurring
prior to the cut off time stated in the Bank's funds availability
policy, and the term "business day" means that part of every calendar
day except Saturdays, Sundays and federal holidays, during which the
Bank is open to the public for carrying on substantially all of its
banking function. The Bank may disclose any information which in its
opinion facilitates the performance of a Service. The Bank may at any
time use agents and/or independent contractors to provide all or any
portion of a Service upon reasonable notice to the Company.
The parties have caused this Agreement to be executed and warrant that their
respective signatory, whose signature(s) appears below, has been and is on the
date of the Agreement duly authorized by all necessary action in accordance with
its governing instruments to execute this Agreement.
AGREED TO AND ACCEPTED BY. AGREED TO AND ACCEPTED BY:
NORWEST BANK MINNESOTA, LTCAMERICA HOLDING, INC.
NATIONAL ASSOCIATION ("COMPANY")
("BANK")
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------ --------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Title: Chairman and CFO
Date: February 18, 1999 Date: February 17, 1999
PRODUCT DESCRIPTION
CONTROLLED DISBURSEMENT AND
OPTIONAL DEFERRED FUNDING SERVICES
This Product Description contains provisions which, in addition to the
provisions contained in the Master Agreement for Cash Management Services
entered into between the Bank and the Company (the "Agreement"), shall govern
the controlled disbursement and optional deferred funding services to be
provided by the Bank (the "Services").
1. Optional Deferred Funding Service. The Company may chose to use the
deferred funding Service by separately notifying the Bank in writing.
2. Accounts. The Company will execute all documents necessary to establish
and will maintain a checking account (the "Checking Account") with the
Bank's affiliate separately identified in writing (the "Disbursing
Bank"). The Company will obtain balance reporting services from the
Bank or an affiliate and authorizes the Bank to access those services.
The Company will also execute all documents necessary to establish and
will maintain a transaction account with the Bank (the "Funding
Account").
3. Determination of Amount of Presentment. Each banking day of the
Disbursing Bank, ih-e Bank and the Company will determine, by means of
the balance reporting service, the total dollar amount of checks drawn
on the Checking Account that have been presented that day. If the
Company has chosen to use the deferred funding Service and if a second
Federal Reserve Bank presentment is made on any banking day, the
Company will be notified of the total Dollar amount of checks that have
been presented with each Federal Reserve Bank presentment.
4. Contingent Funding. If the daily, information is not available by the
applicable deadline, the Company will use an estimate based on
historical in-formation to determine tge amount that will be required
to fund the Checking Account. If the Company over funds the Funding
Account, earnings credit will be provided on the excess balances at the
adjusted earnings credit rate. If the Funding Account is under funded
and an overdraft is allowed, the Company will be charged for the amount
of the overdraft at the borrowing rate separately agreed to by the
Company and the Bank.
5. Transfer Funds to the Checking Account. Neither the Bank nor the
Disbursing Bank intends to make a loan to the Company. Upon receipt of
(a) notice of the total dollar amount of checks presented as described
in Section 3, or (b) determination of an amount that will be required
to fund as described in Section 4, the Bank is authorized to charge the
Funding Account for the amount(s) and to transfer that amount to the
Disbursing Bank in good and collected funds for credit to the Checking
Account. If this occurs after a cut-off time established by the Bank,
the Bank will make a good faith attempt to transfer sufficient funds to
the Disbursing Bank prior to the close of that business day. However,
the Bank shall not incur any liability as a result of the Disbursing
Bank's nonpayment of a check, unless nonpayment results directly and
proximately from the Bank's willful misconduct.
6. Deposit Funds to the Funding Account. Each banking day the Company will
deposit good and collected funds to the Funding Account sufficient to
cover the amount to be transferred in accordance with Section 5. The
Bank may require that the funds be deposited to the Funding Account
before the transfer is made. The Bank will determine the amount of good
and collected funds in accordance with its applicable published funds
availability policy. The Bank may require that any funds to be
deposited under this Section 6 be deposited before funds are
transferred to the Disbursing Bank. If (i) the Bank has transferred
funds for credit to the Checking Account and the Company does not
comply with this Section 6 or the Bank has reason to believe that the
Company may not comply, or (ii) the Company has chosen to use the
deferred funding Service, and the Bank has reason to believe that a
deposit made by the Bank on behalf of the Company will be returned
unpaid, the Bank is authorized to instruct the Disbursing Bank to
return the funds. If the Company has chosen to use the deferred funding
Service:
6.1. For checks presented after the first Federal Reserve Bank
presentment and prior to the Bank's cutoff time for
presentment, the Bank will on behalf of the Company deposit
sufficient funds to the Funding Account.
6.2. Deposits made by the Bank on behalf of the Company, may be
made at the Bank's discretion, by either depository transfer
check or by an entry initiated through an automated
clearinghouse (the "ACH").
6.3. If a deposit is made by ACH, the Bank agrees to give the
Company ledger credit on the day the entry is initiated;
however, under the ACH rules, ledger credit is provisional and
subject to revocation if settlement never becomes final.
7. Protection Against Counterfeit Checks. The Company and the Bank
acknowledge that there is a growing risk of loss resulting from the
increasing use of counterfeit checks. The Company recognizes that
controlled disbursement customers are susceptible to losses from
counterfeit checks. The Company is aware that the Bank offers, without
charge, a service known as "Positive Pay" which is an effective means
of controlling this risk. The Bank has advised the Company that if it
does not use the Positive ray service, the Bank will be unable to
prevent losses from counterfeit checks and the Company will be treated
as having assumed the risk of those losses.