University Banking Services Agreement

UNIVERSITY BANKING SERVICES AGREEMENT

THIS UNIVERSITY BANKING SERVICES AGREEMENT (“Agreement”) is effective as of the 1st day of January 2015, (“Effective Date”), and entered into by and between The Pennsylvania State University, an institution of higher education organized and operated under the laws of the Commonwealth of Pennsylvania, having offices at 208 Old Main, University Park, Pennsylvania 16802 (“University”) and PNC Bank, National Association, a national banking association, with its principal office at One PNC Plaza, 249 Fifth Avenue, Pittsburgh, Pennsylvania 15222 ("PNC Bank").  

WHEREAS, the University wants PNC Bank to offer its Program on the University’s campus.  

This Agreement sets forth the terms pursuant to which PNC Bank will offer the Program to Constituents of University.

1.    DEFINITIONS

For the purposes of this Agreement, the following terms shall have the following meanings:

(a)    “Account” shall mean any new University-affiliated student, faculty, or staff personal checking account.

(b)    “Affiliate” shall mean, with respect to either party hereto, any entity which, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or common control with PNC Bank or University; “control” shall mean the power to direct the management of the affairs of the entity; and “ownership” means the beneficial ownership of more than 50% of the equity of the entity.

(c)    “Automated Teller Machine” or “ATM” shall mean an electronic terminal, together with such wiring, connections and hook-ups necessary to connect it to the STAR® or other appropriate network, that may perform one or more banking functions on behalf of customers, including, without limitation, dispensing cash, accepting deposits, making transfers between accounts and giving account balances.

(d)    “Constituents” shall mean University’s students, faculty, and staff collectively. 

(e)    “E-Branch” shall mean the PNC Bank employee-staffed banking facility capable of performing all non-cash related transactions.

(f)    “Financial Services” shall mean the financial services to be offered by PNC Bank to Constituents hereunder as part of the Program, including without limitation, opening new Accounts, as well as other accounts (e.g., savings, certificates of deposit, Money Market and/or individual retirement accounts), PNC Bank Visa Debit cards, ATMs, including but not limited to, permitting and processing ATM transactions and an E-Branch, provided however that the term “Financial Services” shall not include services marketed directly to Constituents pursuant to the second paragraph in section 4.b.

(g)    “Force Majeure” shall have the meaning given that term in Section 21 below.

(h)    “ID Card Linking” shall mean the process by which a Constituent links their Penn State id+ card to an Account to be used as an ATM or PIN based point of sale card. Linking is at the sole discretion of the Constituent and requires no sharing of personal information between the University and PNC Bank.

(i)    “New Student List” shall mean an annual list of newly enrolled incoming first-year students at the University who have not requested confidentiality of their directory information pursuant to the University’s FERPA policy.  This list shall be used by the University to mail PNC Bank’s Program materials in advance of the new student orientation (NSO).  The New Student List shall not be provided to PNC Bank, unless otherwise agreed to by the parties by amending this Agreement. 

(j)    “PNC Bank Marks” shall mean any designs, images, visual representations, logos, service marks, names, trade dress, trade names or trademarks used or acquired by PNC Bank, as set forth on Exhibit E attached hereto and incorporated herein by this reference.

(k)    “Preferred Provider” shall mean PNC Bank is the only financial institution to which University will extend any of the Commitments (Section 6) and Joint Obligations (Section 8) set forth in this Agreement. 

(l)     “Program” shall mean the Financial Services and other services offered by PNC Bank to Constituents hereunder as further described in Section 4.

(m)   “Program Goals” shall mean the number of new checking Accounts that PNC Bank seeks to open for the Constituents in a given time period of the Term.

(n)    “Royalty” shall have the meaning given that term in Section 3(b).

(o)     Intentionally omitted.

(p)    “University ID Card” shall mean the Penn State id+ card owned and issued by University, or such other identification card issued by the University, even if such card is renamed at a later date. 

(q)    “University Marks” shall mean only those designs, images, visual representations, logos, service marks, names, trade dress, trade names or trademarks used or acquired by University which are set forth on Exhibit D attached hereto and incorporated herein by this reference.

(r)    “Weblinking” shall have the meaning set forth on Exhibit F attached hereto and incorporated herein by this reference. 

2.    TERM

This Agreement shall commence on the Effective Date and shall terminate on December 31, 2019 (“Initial Term”), unless sooner terminated in accordance with Section 17 below.  The parties agree to meet within 180 days of the termination date to discuss renewal terms and conditions. Upon mutual agreement of the parties, this Agreement shall renew up to two (2) successive terms of one (1) year each (each a “Renewal Term”).The Initial Term and the Renewal Term may be referred to herein as a “Term”.

3.    ROYALTY, PAYMENT TERMS 

(a)    Each January of the Term, beginning with January 2016, the parties shall conduct an annual Program review, which shall include a comparison of the performance of the applicable year to the agreed upon Program Goals. In the event the parties agree to extend the Term, the Program Goals and Royalty shall be as set forth in the table below.   Any payment term designated “Optional Renewal Term” shall be applicable only if this Agreement is renewed pursuant to Section 2 above.

Account numbers are based on a January-December calendar year.  Program Goals may be adjusted only by mutual consent.

 

2015

2016

2017

2018

2019

2020

[Optional Renewal Term

  2021

[Optional Renewal Term]

Student-New Checking Accounts

10,000

10,000

10,000

10,000

10,000

10,000

10,000

WorkPlace Banking - Faculty & Staff -New Checking Accounts

500

500

500

500

500

500

500

Program Goal Total

10,500

10,500

10,500

10,500

10,500

10,500

10,500

(b)    In exchange for the consideration provided under this Agreement, PNC Bank will pay to University an annual license fee (“Royalty”) calculated in accordance with this paragraph or, if applicable, paragraph (c) below.  In the event that University attains the Program Goal Total for a calendar year as specified in paragraph (a) above, PNC Bank will pay to University the following Royalty:

Year            Amount
2015              $1,000,000.00
2016              $1,000,000.00
2017              $1,000,000.00
2018              $1,000,000.00
2019              $1,000,000.00
2020              $1,000,000.00 [Optional Renewal Term]
2021              $1,000,000.00 [Optional Renewal Term]

(i)    PNC Bank shall pay University a one-time guaranteed signing bonus in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) (the “Signing Bonus”).  The Signing Bonus shall be paid not later than sixty (60) days after this Agreement is fully signed.  The University shall repay to PNC Bank a certain percentage of the Signing Bonus should this Agreement be terminated prior to December 31, 2018, (a) for any reason other than a  default by PNC Bank, or (b) the Agreement is terminated by either party pursuant to Section 17(d).  The percentage paid by the University shall be in accordance with the repayment chart set forth below.

Calendar Year Agreement Terminated

Signing Bonus Repayment Percentage

2015

100%

2016

75%

2017

50%

2018

25%

2019

0%

(c)    In the event the University fails to achieve the Program Goals by category as stated in subsections 3(a), but achieves the total Program Goals for new accounts in any year of the Term, PNC Bank shall pay University as set forth in Section 3(b). 

(d)    Notwithstanding subsection 3(b), in the event that University does not attain the Program Goal Total for any calendar year as specified in paragraph (a) above, PNC Bank will pay to University for any such calendar year a minimum guaranteed Royalty equal to the greater of (i) an amount equal to the Royalty stated in paragraph 3(b) above for the applicable calendar year multiplied by a fraction, the numerator of which is the number of new Accounts for the calendar year and the denominator of which is the Program Goal Total for that calendar year;  or (ii) in years 2015 and 2016 an amount equal to one-hundred percent (100%) of the Royalty stated in paragraph 3(b) for the applicable calendar year; or (iii) in years 2017, 2018, and 2019 an amount equal to seventy-five percent (75%) of the Royalty stated in paragraph 3(b) for the applicable calendar year. This Section 3(d)(iii) shall also be applicable in years 2020 and 2021 if the University renews this Agreement in accordance with Section 2 thereof.

(e)    As of the Effective Date of this Agreement for any calendar year in which the Program Goal Total is exceeded for any calendar year and at least seventy five percent (75%) of the WorkPlace Banking goal, as defined in able in Section 3(a) is met, additional Royalty payments would be available at increased increments of one percent for each one percent the total program goal is exceeded.

(f)    The Royalty and the Additional Royalty, if any, payable pursuant to this Section 3 will be paid by PNC Bank to the University no later than the first day of February of the year following the calendar year to which the payments relate, as indicated below.  

YEAR

Due Date

2015

February 1, 2016 for 2015

2016

February 1, 2017 for 2016

2017

February 1, 2018 for 2017

2018

February 1, 2019 for 2018

2019

February 1, 2020 for 2019

2020

[Optional Renewal Term]

February 1, 2021 for 2020

2021

[Optional Renewal Term]

February 1, 2022 for 2021

(g)    Notwithstanding anything to the contrary contained in this Agreement:

(i)    if any federal or state law is enacted, or regulation promulgated by a federal or state agency with supervisory or enforcement authority over University or PNC Bank, (“New Law”), and

(ii)    the New Law makes it impossible, impracticable or unduly burdensome for (a) PNC Bank to deliver the Financial Services under the Program, or (b) the University to satisfy its obligations under the Agreement, then

(iii)    either party shall promptly notify the other party in writing no later than thirty (30) days after learning of the pending implementation or passage of the New Law, then 

(iv)    the parties shall meet as soon as practicable to discuss in good faith the continued viability of the Agreement as intended by the parties, and work together on mutually agreeable modifications to the Agreement to achieve the parties’ mutual objectives consistent with such New Law, and

(v)    within sixty (60) days from the date of the notice or the effective date of New Law, whichever is sooner, either party may terminate the Agreement in accordance with Section 17(d) of this Agreement.

(vi)    For each partial or total calendar year after the effective date of the New Law, but prior to the termination of the Agreement, PNC shall be excused from making to the University, (a) any Royalty payment or additional Royalty payment under Sections 3(a) and 3(c), if the making of such payment is illegal or otherwise prohibited by any such New Law.

(vii)    If the Agreement is terminated a final Royalty payment shall be made to the University within sixty (60) days calculated as the applicable annual target royalty payment multiplied by the sum of expected volume percentages for the months elapsed in the royalty calculation period as shown in the table below.

Jan.

Feb.

March

April

May

June

July

Aug.

Sept.

Oct.

Nov.

Dec.

4%

2%

2%

2%

9%

26%

20%

23%

5%

3%

2%

2%

Example a contract which calculates Royalties on a calendar year basis is terminated in May.  The final Royalty payment would be calculated as Target Royalty (sum of % Jan - May)

(h)    All payments made by PNC Bank hereunder shall be by check to the address designated by the University, or delivered by hand.

4.    PRODUCTS AND SERVICES

(a)    PNC Bank shall provide Financial Services during the Term.  

The Program is designed to attract Constituents that do not have an Account with PNC Bank, and does not include the solicitation of credit cards, student loans, or any other credit products.  PNC Bank shall actively advertise and promote the Program as authorized, by law, on the University campus, via approved University mediums and using approved University Marks.  The Program, shall include: presenting financial seminars to students and employees; opening new Accounts for University students, and employees; establishing and operating an E-Branch on campus; and offering debit card functionality for the University ID Card to access Accounts. The debit card functionality added to the University ID Card shall include point-of-sale debit and ATM transactions.  Except for those ATMs that may be located within the E-Branch, all ATMs shall be provided pursuant to a separate Master License Agreement, Exhibit A, which is attached hereto and incorporated herein by this reference.

Notwithstanding the foregoing, the advertising and/or promotion of the Program shall not prohibit PNC Bank from marketing its financial products or services to Constituents who:

1.    Become PNC Bank customers or are already existing PNC Bank customers;
2.    Solicit financial information within a PNC Bank branch, (which shall include the Branch); or
3.    Independently utilizes electronic media for information regarding PNC Bank products and/or services.

(b)    Throughout the Term, PNC Bank shall provide administrative, management, consulting, mechanical, and operational services and personnel sufficiently necessary to fulfill its obligations completely as described herein, in a competent, capable, qualified and professional manner.  PNC Bank warrants that all services and activities to be provided by PNC Bank hereunder will be performed in accordance with sound and professional principles and practices, consistent with generally accepted industry standards, and shall reflect PNC Bank’s best professional knowledge, skill and judgment, all of which shall be at a level appropriate to University’s requirements for the services to be performed.

(c)    PNC Bank agrees to comply with all applicable laws in the performance of all actions taken in connection with this Agreement, including, but not limited to, compliance with the Credit Card Accountability Responsibility and Disclosure Act of 2009, 15 U.S.C. § 1601 et seq., including its requirements regarding the protection of young consumers; the Truth in Lending Act, 15 U.S.C. § 1650, 15 U.S.C. § 1637 as amended; the Truth in Savings Act, 12 U.S.C. § 4301 et seq., and the CAN-SPAM Act of 2003, 15 U.S.C. § 7701, and their implementing regulations.

5.    PNC BANK'S EMPLOYEES

(a)    PNC Bank and University are independent contractors and nothing in this Agreement shall be construed to create a partnership, joint venture or co-employer or joint employer relationship by and between University and PNC Bank.

(b)    University and PNC Bank shall have the sole and exclusive right to select, direct, discipline and terminate their own respective employees and to determine the terms and conditions of their employment in accordance with applicable law.  Each party shall have the right to inform the other party of any employee of such other party, whose conduct in its good faith opinion, violates the terms of this Agreement or is otherwise unsatisfactory.  Within sixty (60) days of receiving an employee-related complaint, the party receiving such complaint shall address such issues raised in accordance with its established employment policies.

(c)    PNC Bank shall only employ individuals to perform its obligations hereunder who are authorized to work in the United States.

(d)    When on or about the property of University, PNC Bank agrees that in performing work under this Agreement, its employees, contractors and agents shall observe such reasonable rules and regulations the University reasonably prescribes for the general population of its campus and which are made available to PNC Bank on or before the Effective Date hereof.  Such reasonable rules and regulations include pertinent University policies, which have been made available to PNC Bank for viewing at the following website: http://guru.psu.edu/policies/.  Such reasonable rules and regulations include relevant portions of University Policy HR99 (Background Check Process).

(e)    In particular, because the Agreement will require certain of PNC Bank’s employees to work on University premises, PNC Bank certifies that PNC Bank’s Officer whose signature appears on this Agreement has read University Policy HR99 (Background Check Process).  PNC Bank hereby certifies that its employees, contractors and agents who are regularly assigned to conduct work on University premises will have successfully passed background checks that meet or exceed the standards specified in University Policy HR 99 under the heading Publically Available Background Checks.  PNC Bank’s work under the Agreement does not require its employees, contractors or agents to supervise minors involved in programs as described in University Policy AD39 (Minors Involved in University-Sponsored Programs or Programs Held at the University and/or Housed in University Facilities).    

6.    COMMITMENTS OF UNIVERSITY

University shall, during the Term of this Agreement:

(a)    Work in good faith to generally support the Program as follows:

(i)     Promote the availability of the Program to its students, faculty and staff as mutually agreed with PNC Bank. 

(ii)    Permit PNC Bank the right to market the Program and Financial Services as University’s Preferred Provider, to Constituents;  

(iii)    Permit PNC Bank physical access on campus and presence at campus events necessary for PNC Bank to exercise the marketing rights enumerated herein.  A list of the University campuses is set forth on Exhibit C, which is attached hereto and incorporated herein.

(b)    Make available the following marketing rights for the Program, subject to pre-approval by the University of each specific activity:

Students:

1.    Annual mailing, at PNC Bank’s expense, to the New Student List prior to the start of new student orientation (NSO).

2.    Permitting on-campus access including tabling by PNC Bank at mutually-agreed upon University events such as freshmen orientations, student fairs, etc., at no cost to PNC Bank

3.    Intentionally omitted.

4.    Permitting on campus promotions, giveaways, etc. sponsored by PNC Bank, provided such events are (i) in compliance with applicable laws, (ii) are limited to locations designated by the University for such activities, (iii) are scheduled through the normal University process for reserving space, and (iv) related to the Program.

5.    Permitting the distribution by PNC Bank of Program communications, via distributions methods approved by the University, (which Program communications bearing University Marks shall be approved in writing in advance by University, and such approval shall not be unreasonably withheld, conditioned or delayed). 

6.    Providing PNC Bank preferred access to common areas for mutually-agreed upon tabling events throughout the year at no cost to PNC Bank 

7.    Permitting from time to time on-campus financial seminars, related to the Program, at mutually agreed upon venues, pre-approved by University and at no cost to PNC Bank.

8.    Mentioning of PNC Bank and the Program from time to time in mutually agreed upon University publications and mailings.

9.    Supporting agreed-upon student events to be sponsored by PNC Bank 

10.  Providing a web link from University’s id+ Program web areas on the University’s web site to a customized site at www.pnc.com/psu

Faculty/Staff:

1.    Permitting the distribution of materials by PNC Bank, in a medium acceptable to both parties, at new hire orientations

2.    Permitting on campus promotions, giveaways, etc. sponsored by PNC Bank, provided such events are (i) in compliance with applicable laws, (ii) are limited to locations designated by the University for such activities, (iii) are scheduled through the normal University process for reserving space, and (iv) related to the Program.

3.    Endorsing PNC Bank’s presenting agreed-upon on-campus financial seminars, related to the Program, from time to time with individual University departments

4.    Permitting the use of intra-campus mail  from time to time for distribution by PNC Bank of mutually agreed upon Program communications approved in writing in advance by University, which approval shall not be unreasonably withheld, conditioned or delayed 

5.    Advertising by PNC Bank in University publications and mailings at agreed-upon fees 

6.    Providing a Web link from University’s Human Resources Discounts web site to a customized site at www.pnc.com/psu

(c)    With the University’s prior approval, which shall not be unreasonably withheld, conditioned or delayed, permit PNC Bank to use University’s name and the University Marks in press releases and when marketing the Program.  Marketing may include, by example and not limitation, proposals and presentations to other potential clients;  

(d)    Grant PNC Bank the right to deploy and maintain on University’s campus a minimum of thirty-seven (37) ATMs as of the Effective Date.  Except for those ATMs that may be located within the E-Branch, all ATMs shall be governed by and in accordance with the provisions of the Master License Agreement between PNC Bank and University entered into contemporaneously with this Agreement, which is attached hereto as Exhibit A and incorporated herein by this reference. 

(e)    Acknowledge PNC Bank’s option to impose a surcharge for the use of its ATM(s).  The surcharge shall be in the same amount or less than the surcharge imposed for use of PNC Bank branch ATMs in the applicable Pennsylvania market area.  In the event the branch ATM surcharge is increased, then the surcharge applicable to the ATMs hereunder may also increase.  In no event will PNC Bank impose a surcharge hereunder that is applicable only to University’s Constituents; and

(f)    Prohibit any other financial institution from establishing and/or operating a manned branch on University campuses.  Notwithstanding the foregoing, the Penn State Federal Credit Union (“PSFCU”) shall continue to maintain a branch and related activities on the University’s campus.

(g)    Notwithstanding anything to the contrary contained in this Agreement, University’s ability to provide any information to PNC Bank is subject to and conditioned upon the Family Education Rights in Privacy Act (FERPA), other applicable laws and regulations, and University’s policies and procedures.
  
7.    COMMITTMENTS OF PNC BANK:

At its cost, except as the parties may otherwise agree from time to time, during the Term PNC Bank shall:

(a)    Offer the Program to Constituents;  

(b)    Marketing of the Program, which shall include, among other things:

•    At times mutually agreed between the parties, providing materials for the mailing of PNC Bank’s advertising and promotional information to Constituents;
•    Marketing the Program to Constituents as mutually agreeable during the Term, in accordance with Section 6 above;
•    At its sole cost and expense, designing and creating all marketing materials, as described above.  Subject to the prior written approval of University which shall not be unreasonably withheld, conditioned or delayed;
•    Providing Constituents who open an Account pursuant to the Program with a PNC Bank Visa® Debit Card which will allow point of sale and ATM transactions everywhere the Visa® logo is displayed;
•    At PNC Bank’s sole cost and expense, marketing to Constituents through mailings, advertisements in University publications, tabling at new student orientation and similar events;
•    ID Card Linking of the University ID Card to Accounts;
•    Exercising the Preferred Provider rights and privileges for the Program with respect to Constituents;
•    Providing University with a quarterly report of new Accounts opened and card transaction activity with de-identified, aggregated data; and
•    Collaborate with the University to develop educational programs geared towards developing student financial awareness and responsibility. 

(c)     PNC Bank representatives will establish and operate at the E-Branch in accordance with the E-Branch Lease which is attached hereto, and incorporated herein as Exhibit B.  Hours of operation of the E-Branch shall be mutually agreed upon by PNC Bank and the University.

(d)    Use PNC Bank’s reasonable commercial efforts to identify Account applications as Constituents at the time of Account opening and record such Accounts as part of the Program.

8.    JOINT OBLIGATIONS

(a)    The parties agree that they shall:

(i)    conduct, in good faith, an annual review of the success of the Program in accordance with Section 3; reviews shall be quarterly throughout the Term of this Agreement; and

(ii)    Execute each agreement that constitutes an Exhibit hereto and which shall be incorporated herein

9.    INSURANCE

(a)    During the Term, PNC Bank shall maintain at its own expense full and adequate insurance with insurance carriers licensed to do business in the Commonwealth of Pennsylvania, having at least an A.M. Best rating (or similar rating) of at least an “A-“, as follows:

COMMERCIAL GENERAL LIABILITY

$1,000,000 Each Occurrence
$3,000,000 General Aggregate
$1,000,000 Products – Completed Operations
$1,000,000 Personal and Advertising Injury
$   100,000 Fire Damage (any one fire)
$       5,000 Medical Expense (any one person)

AUTOMOBILE LIABILITY (including all Owned, hired car and non-owned automobile)

$1,000,000 Each Occurrence 
$1,000,000 Aggregate

WORKERS COMPENSATION

Statutory

UMBRELLA/EXCESS LIABILITY

$5,000,000 Each Occurrence
$5,000,000 Aggregate

EMPLOYER’S LIABILITY

$1,000,000 Each Accident
$1,000,000 Disease-Policy Limit
$1,000,000 Disease-Each Employee

COMPREHENSIVE CRIME

$1,000,000 Employee Theft Coverage
$1,000,000 Premises Coverage
$1,000,000 Transit Coverage
$1,000,000 Depositors Forgery Coverage

PNC Bank shall name University as an additional insured on PNC Bank’s General, Umbrella, Comprehensive and Automobile Liability policies.  If PNC Bank fails to maintain any of this insurance, University shall have the right, but not the obligation, to purchase any such insurance at PNC Bank’s expense.  It is understood and agreed that PNC Bank’s insurance applies on a “primary” basis with respect to the performance of any of PNC Bank’s rights or obligations hereunder.

(b)    University shall maintain or cause to be maintained, at no expense to PNC Bank, during the Term hereof, such fire and casualty insurance policies and public liability coverage in such amounts and on such terms as University considers appropriate in an amount not less than $1,000,000.00.

10.    REPRESENTATIONS AND WARRANTIES

(a)    University represents and warrants, as of the Effective Date and during the Term of this Agreement, that:

(i)     University is duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and has the requisite corporate power and authority to enter into this Agreement;

(ii)      The execution, delivery and performance of this Agreement by University is within University’s powers, has been duly authorized by all necessary corporate action, and does not violate, conflict with or constitute a breach under any articles of incorporation or charter, bylaw, law, regulation, contract or obligation applicable to University;  

(iii)      This Agreement constitutes a legal, valid and binding obligation of University, enforceable against it in accordance with its terms;

(iv)      No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the execution, delivery and performance by University of this Agreement;
    
(v)     University’s employees, directors, officers or agents shall not make any representation, warranty, promise or statement to any customer regarding the approval, decline, collection, processing, or any other handling of customer's products or services as provided by PNC Bank.  Any questions regarding PNC Bank’s products or services shall be promptly referred to PNC Bank;

(vi)    No information, schedule, exhibit, or financial information furnished or to be furnished by University to PNC Bank in connection with this Agreement is inaccurate in any material respect as of the date it is dated or contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading;

(vii)   University has not entered and will not enter any agreement that would prohibit University from fulfilling its duties and obligations under the terms of this Agreement; and

(viii)  During the Term of this Agreement, University (A) will promote the Program, and (B) has granted PNC Bank the exclusive right to market the Program to Constituents on campus and has not granted that right to any other financial institution.  

(b)    PNC Bank represents and warrants as of the Effective Date and during the Term of this Agreement that:

(i)      PNC Bank is a national banking association organized, validly existing and in good standing under the laws of the United States, and is FDIC insured, and has the requisite corporate power and authority to enter into this Agreement;

(ii)      PNC Bank’s execution, delivery and performance of this Agreement are within PNC Bank’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene PNC Bank’s bylaws or charter or any law or contractual restrictions to which it is subject;

(iii)      Any authorization or approval or other action by, or notice to or filing , any governmental authority or regulatory body that is required for the execution, delivery and performance by PNC Bank of this Agreement shall be obtained in a timely manner;

(iv)      This Agreement constitutes a legal, valid and binding obligation of PNC Bank, enforceable against it in accordance with its terms;

(v)      No information, schedule, exhibit, financial information furnished or to be furnished by PNC Bank to University in connection with this Agreement is inaccurate in any material respect as of the date it is dated or contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading; and

(vi)      In its performance and activities hereunder, including but not limited to its creation and provision of the marketing and advertising materials used by PNC Bank to generate applications, Accounts or any and all other customer relationships, PNC Bank shall, at all times, comply with all applicable federal, state or local rules, laws or regulations and use best efforts in the performance of the Program.

11.    LOCATIONS/SIGNS

University shall permit PNC Bank to place signs advertising the Program in locations on University’s campus that are mutually acceptable to both parties.  PNC Bank must have University’s prior written approval for size, content and colors of any signs, which consent shall not be unreasonably withheld, conditioned or delayed.  The University will use commercially reasonable efforts to provide written approval within ten (10) business days of the request by PNC Bank.

12.    ADVERTISING, PROMOTION AND RELATED ACTIVITIES

(a)    PNC Bank may advertise the Program in such media and in such manner, as the parties shall mutually agree.  PNC Bank may identify University as its client in the ordinary course of its banking business.  Notwithstanding the foregoing, University must have PNC Bank’s prior written approval for any advertising materials that include any references to PNC Bank’s products or services, which consent shall not be unreasonably withheld, conditioned or delayed.  
The University will use commercially reasonable efforts to provide written approval within ten (10) business days of the request by PNC Bank.

(b)    The parties may conduct joint promotional activities if they mutually agree to do so.

(c)    Intentionally omitted.

(d)    In addition to the provisions of Section 6, University shall provide PNC Bank access to such University resources as may be appropriate and necessary to promote the Program and the Financial Services in appropriate mailings and other applicable media that are provided to incoming and returning Constituents as mutually agreed upon.  

13.    INDEMNIFICATION 

(a)    Indemnification by University.  University shall indemnify, defend and hold harmless PNC Bank, its Affiliates and their respective officers, directors, employees, and agents from and against all loss, cost, damage, liability, claim, expense (including reasonable legal fees and expenses), judgment and fine of any nature whatsoever (collectively “Losses”) arising directly or indirectly, out of or relating to the following:

(i)    Breach of any representation, warranty or obligation under this Agreement by University, or any of its officers, directors, employees or agents;

(ii)    Violation by University, its officers, directors, and employees, of any applicable law, rule, regulation or administrative order or any statement, letter or guidelines issued by applicable regulatory authority in connection with performance under this Agreement; or gross negligence or willful misconduct of University or its officers, directors, employees, agents or subcontractors, in connection with its duties or obligations under the terms of this Agreement, except to the extent such Losses result from the negligence, gross negligence or willful misconduct of PNC Bank.

(b)    Indemnification by PNC Bank.  PNC Bank shall indemnify, defend and hold harmless University, its officers, directors, employees, and agents from and against all Losses arising directly or indirectly, out of or relating to the following:

(i)     Breach of any representation, warranty or obligation under this Agreement by PNC Bank, or any of its officers, directors, employees or agents;

(ii)     Violation by PNC Bank, its officers, directors, and employees, of any applicable law, rule, regulation or administrative order or any statement, letter or guidelines issued by applicable bank regulatory authority in connection with performance under this Agreement; or

(iii)     Gross negligence or willful misconduct of PNC Bank or its officers, directors, employees, agents or subcontractors, in connection with its duties or obligations under the terms of this Agreement, except to the extent such Losses result from the negligence, gross negligence or willful misconduct of University.

(c)     Indemnification Procedures for Third Party Claims.  In any case where the person seeking indemnification under this Agreement (herein referred to as the “Indemnified Party”) seeks indemnification for a third party claim, suit or proceeding (herein referred to as a “Third Party Claim”), such indemnification will be conditioned on such Indemnified Party’s compliance with the following procedures:

(i)    The Indemnified Party will give prompt written notice to the person from whom indemnification is sought (herein referred to as the “Indemnifying Party”) of each claim for indemnification under this Agreement, specifying the amount and nature of the claim (herein referred to as a “Notice of Claim”).  Provided that such Notice of Claim is given (unless the failure to provide such Notice of Claim does not prejudice the interests of the Indemnifying Party), and the Indemnifying Party has not contested in writing the Indemnified Party’s right to indemnification as set forth below, the Indemnifying Party, at its own expense and using counsel of its own choosing, will promptly defend, contest and otherwise protect against any such claim, suit or proceeding.  If within a reasonable time period following the receipt of a Notice of Claim, the Indemnifying Party contests in writing the Indemnified Party’s right to indemnification with respect to the Third Party Claim described in the Notice of Claim, the Indemnified Party will defend against and contest such Third Party Claim. 

(ii)    If the Indemnifying Party is defending against the Third Party Claim, the Indemnified Party may, but will not be obligated to, participate in the defense of any such Third Party Claim, suit or proceeding, at its own expense and using counsel of its own choosing, but the Indemnifying Party will be entitled to control the defense thereof unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter.  The Indemnified Party will cooperate and provide such assistance as the Indemnifying Party reasonably may request in connection with the Indemnifying Party’s defense and will be entitled to recover from the Indemnifying Party the reasonable costs of providing such assistance.  The Indemnifying Party will inform the Indemnified Party on a regular basis of the status of such claim, suit or proceeding and the Indemnifying Party’s defense thereof.

(iii)    In any Third Party Claim the defense of which is controlled by the Indemnifying Party, the Indemnifying Party will not, without Indemnified Party’s prior written consent, compromise or settle such claim, suit or proceeding if:  (y) such compromise or settlement would impose an injunction or other equitable relief upon the Indemnified Party; or (z) such compromise or settlement does not include the third party’s release of the Indemnified Party from all liability relating to such claim, suit or proceeding for which the Indemnified Party is entitled to be indemnified.

(iv)    If the Indemnifying Party fails to timely defend, contest, or otherwise protect against any such claim, suit, or proceeding, and fails to contest in writing the Indemnified Party’s right to indemnification, the Indemnified Party may, but will not be obligated to, defend, contest or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party, including reasonable fees and disbursements of counsel and all amounts paid as a result of such claim, suit or proceeding and the compromise or settlement thereof.  

(v)    The obligation of a party to indemnify the other party’s officers, directors, employees and agents in accordance with this Section 13 may be enforced exclusively by the other party and nothing herein will be construed to grant such officers, directors, employees and agents any individual rights, remedies, obligations or liabilities with respect to the parties.  The parties may amend or modify this Agreement in any respect without the consent of such officers, directors, employees and agents. 

14.    LIMITATION OF LIABILITY

NO PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBLITY OF SUCH; PROVIDED, HOWEVER, THAT THIS LIMITATION OF LIABLITY WILL NOT APPLY TO ANY CLAIM ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, ANY CLAIM ARISING FROM BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT OR ANY THIRD PARTY CLAIM.

15.    TAXES

(a)    The University is a tax exempt entity and has been fully advised by University’s counsel and/or tax consultant of any tax implications resulting from this Agreement.

(b)    PNC Bank shall pay all taxes properly assessed against it or its property by any taxing authority because of its operations and conduct of its business (including PNC Bank’s income, employment of personnel, franchise, sales, use and excise taxes) and shall pay all personal property taxes assessed on its fixtures, equipment and furnishings.  PNC Bank shall have no obligation to pay taxes related to University’s operations or conduct of its business (including University’s income, employment of personnel, franchise, sales, use and excise taxes).

16.    ASSIGNMENT/BINDING EFFECT

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns provided, however, that neither this Agreement, nor any of the rights and obligations hereunder, may be assigned, transferred or delegated by either party, without the prior written consent of the other party; and provided further, however, that this Agreement may be assigned by either party without the consent of the other party hereto to any Affiliate of the assigning party.    

17.    TERMINATION

(a)    If a party breaches any material covenant in this Agreement and fails to remedy same within twenty (20) calendar days after receipt of written notice of such breach from the non-breaching party, or if the same is not reasonably capable of being cured within twenty (20) calendar days, and the breaching party fails to commence to remedy same within twenty (20) calendar days and diligently prosecute the remedying of the breach until the same is remedied, the non-breaching party may, at its option, declare this Agreement terminated without prejudice to any additional remedy which may be available to the non-breaching party.  
    
(b)    In the event that a party shall become insolvent, bankrupt or make any assignment for the benefit of creditors, or if its interest hereunder shall be levied upon or sold under execution or other legal process, without prejudice to any additional remedy which may be available to the other party, the other party may declare this Agreement terminated.

(c)    A party may elect not to renew this Agreement at the end of the Initial Term or first Renewal Term, as applicable, by providing written notice of non-renewal to the other party at least ninety (90) calendar days prior to the expiration of the Initial Term or Renewal Term, as applicable, and, in such case, this Agreement shall be terminated as of the end of the Initial Term or first Renewal Term, as applicable.

(d)     Either party may terminate this Agreement, pursuant to Section 3(d)(v), by providing sixty (60) days prior written notice to the other party, in the event that (i) any federal or state law is enacted, or any regulation is promulgated by a federal or state agency with supervisory or enforcement authority over University or PNC Bank, and (ii) such law or regulation makes it unduly burdensome for the terminating party to continue to perform its obligations under the Agreement.  In any such notice of termination, the terminating party shall provide to the non-terminating party a description reasonably describing the basis for termination pursuant to subsections (i) and (ii) hereof.  This Agreement and all related agreements shall be terminated, (i.e. ATM Master License and E-Branch Lease).

18.    CONFIDENTIALITY

(a)    Each of PNC Bank and University agrees that all information, whether oral or written or via computer disk or electronic media, to which the other is given access or is made available to the other, including to each party’s directors, officers, employees, Affiliates, agents or representatives, is referred to hereinafter as “Confidential Information.” Confidential Information shall include, without limitation, all technology, know-how, processes, software, databases, trade secrets, contracts, proprietary information, all historical and financial information, business strategies, operating data and organizational and cost structures, product descriptions, pricing information, customer or Constituent information, which includes, without limitation, names, addresses, telephone numbers, account numbers, demographic, financial and transactional information or customer or Constituent lists, whether received before or after the date hereof.  Confidential Information also includes information of any parent, subsidiary or Affiliate of PNC Bank or University.  Each party, agrees to hold such Confidential Information in strictest confidence, not to make use thereof except in connection with the performance of this Agreement, and not to release or disclose any Confidential Information to any other party with the exception of parent companies, subsidiaries and affiliated companies, consultants, auditors, attorneys and other professionals who need to know the Confidential Information in order to perform their services; regulators; and prospective assignees, transferees or other successor to the rights of the parties, provided that in all such cases the third parties receiving the Confidential Information shall agree to hold such Confidential Information in strictest confidence consistent with this Section 18.  In the event of a breach of the foregoing, the non-breaching party shall be entitled to specific performance, including the right to seek preliminary and permanent injunctive relief against the breaching party, as its sole and exclusive remedy.

(b)    Notwithstanding the foregoing, either party may disclose Confidential Information pursuant to a requirement or request of a governmental agency or pursuant to a court of administrative subpoena, order or other such legal or administrative process or requirement of law, including the Pennsylvania Right to Know Law, or in defense of any claims or causes of action asserted by the disclosing party; provided, however, that prior to disclosing the Confidential Information, the disclosing party shall (i) first notify the other party of such request or requirement, or use in defense of a claim, unless such notice is prohibited by statute, rule or court order, (ii) attempt to obtain the consent of the non-disclosing party to the disclosure of the Confidential Information, and (iii) in the event consent to disclosure is not given by the non-disclosing party prior to the disclosing party’s time for production, the disclosing party agrees that the non-disclosing party shall have the right to pursue a motion to quash or other similar procedural step in order to try to prevent the production or publication of the specific Confidential Information.  Notwithstanding anything herein to the contrary, nothing herein is intended to require, nor shall it be deemed or construed to require, either party to fail to comply, on a timely basis, with a subpoena, court or administrative order or other process, or requirement.

(b)    It is understood and agreed that the obligation to protect Confidential Information shall be satisfied if the parties utilize the same control (but no more than commercially reasonable controls) as it employs to avoid disclosure of its own confidential and valuable information and the parties shall have appropriate policies and procedures to (a) ensure the security and confidentiality of the Confidential Information, (b) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information, and (c) protect against unauthorized access to or use of such Confidential Information that could result in harm or inconvenience to the parties or their customers or Constituents. 

(c)    The University may publically disclose this agreement in whole or in part.

19.    ENTIRE AGREEMENT

This Agreement and the exhibits attached hereto, if any, constitutes the entire agreement and understanding among the parties with respect to the subject matter herein and the transactions contemplated herein and any and all previous understandings, proposals, negotiations, agreements, commitments and representations, whether oral or written, are merged herein and are superseded hereby. If there is a conflict between the terms of this Agreement and any Schedule or Exhibit attached hereto, the terms of this Agreement shall control.

20.    AMENDMENT

No modification, amendment or waiver of any provisions of this Agreement shall be valid unless it is in writing and signed by the parties. 

21.    FORCE MAJEURE

Neither party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control or without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accident, floods, power blackouts, volcanic action, major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers or suppliers.

22.    HEADINGS

The headings contained in this Agreement are solely for the convenience of the parties and should not be used or relied upon in any manner in the construction or interpretation of this Agreement.

23.    SEVERABILITY

Any element of this Agreement held to violate a law or regulation shall be deemed void and all remaining provisions shall continue in force.  The parties shall in good faith attempt to replace an invalid or unenforceable provision with one that is valid and enforceable and which comes as close as possible to expressing or achieving the intent of the original provision.

24.    GOVERNING LAW/JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its provisions relating to the conflict of laws.   Each party agrees that it is and shall remain subject to the in personam, in rem and subject matter jurisdiction of the state and federal courts in the Commonwealth of Pennsylvania for all purposes pertaining to this Agreement and all documents and instruments executed in connection or in any way pertaining hereto.

25.    NOTICES

All notices which either party may be required or desire to give to the other party shall be in writing and shall be given and deemed served on the date when hand delivered in writing to the applicable party, or if sent by certified mail, return receipt requested, or by courier service, notice shall be deemed served on the date received.  Notices sent by mail or courier shall be sent to the following addresses:

If to University then to:  

The Pennsylvania State University
408 Old Main 
University Park, PA 16802
ATTN:  Associate VP Finance & Corporate Controller 

With a copy to:

The Pennsylvania State University
227 West Beaver Avenue, Suite 507
State College, PA 16801
Attn: General Counsel    

If to PNC Bank, then to: 

PNC Bank, National Association
Two PNC Plaza
620 Liberty Avenue
Pittsburgh, Pennsylvania 15222
ATTN: Manager, University Banking

With a copy to:

PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue
P1-POPP-21-1
Pittsburgh, Pennsylvania 15222
ATTN: Chief Counsel, Consumer Bank

The names and addresses for the purpose of this Section may be changed by either party giving written notice of such change in the manner herein provided for giving notice.  Unless and until such written notice is actually received, the last name and address stated by written notice or provided herein, if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder.

26.    RELATIONSHIP

Nothing in this Agreement is intended to nor does it create the relationship of employer and employee, principal and agent, partners or joint venturers between University and PNC Bank.  Each Party hereto intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.

27.    WAIVER

Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by all parties.  The failure or delay of any party to require performance of any provisions shall not constitute any waiver thereof, unless and until such performance has been waived by such party in writing in accordance with the terms hereof. No waiver by any party of any term or condition of this Agreement, in any one or more instances shall be deemed to be construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, shall be cumulative and not alternative.

28.    REMEDIES

All remedies provided for under the terms of this Agreement shall be cumulative and not alternative.

29.    COUNTERPARTS

This Agreement may be executed in two or more counterparts each of which shall be deemed a duplicate original.  

IN WITNESS WHEREOF, intending to be legally bound, each party hereto has caused its duly authorized representative to execute duplicate counterparts of this Agreement on its behalf, as of the Effective Date.

PNC Bank, National Association        
(“PNC Bank”) 
    

By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________                                 

The Pennsylvania State University
(“University”)

By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________ 

 

EXHIBIT A
MASTER LICENSE AGREEMENT

EXHIBIT B
E-BRANCH LEASE

EXHIBIT C
UNIVERISTY CAMPUSES

EXHIBIT D
UNIVERSITY MARKS

EXHIBIT E
PNC BANK MARKS

EXHIBIT F
WEBLINKING AGREEMENT

[Remainder of page intentionally left blank]

 

EXHIBIT A

MASTER LICENSE AGREEMENT

THIS MASTER LICENSE AGREEMENT (“ATM Agreement”), is effective as of the 1st day of January 2015, (“Effective Date”), and entered into by and between The Pennsylvania State University, an institution of higher education organized and operated under the laws of the Commonwealth of Pennsylvania, having offices at 208 Old Main, University Park, PA 16802 (“University”), and PNC Bank, National Association, a national banking association (“PNC Bank”).  This ATM Agreement is an exhibit to and an integral part of that certain University Banking Services Agreement of even date herewith between University and PNC Bank (the “Agreement”).  Capitalized terms used in this ATM Agreement and not otherwise defined herein, shall have the meaning given them in the Agreement.

WHEREAS, the parties have entered into the Agreement which specified services include ATM deployment.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, it is agreed as follows:

1.    License

PNC Bank and University shall from time to time enter into licenses, each such license to be in the form which is attached hereto as Schedule A which is a supplement to this ATM Agreement and which, when executed shall constitute a License (“License”), to cover such ATMs and to contain such special provisions respecting terms, covenants, conditions and provisions as PNC Bank and University may agree.

2.    Grant of License

University hereby grants to PNC Bank, or its affiliate, the right, upon the terms and conditions hereinafter set forth, to install, maintain, service, repair, replace and operate ATMs, together with related Equipment and Installations as described in Section 5 hereof at the location(s) (the “Locations”) set forth in the Licenses.

3.    Location of ATMs

The ATMs shall be located within or about the Locations as mutually agreed upon by the parties.  The initial Locations will be as indicated in the Licenses.  The ATMs, together with related Equipment and Installations, may be relocated only upon the mutual written agreement of the parties, provided that the party requesting relocation will bear the cost thereof, including the cost of relocating the aforesaid Equipment and Installations.  Requests for relocation hereunder must be made no less than thirty (30) days prior to the date that relocation is desired.  An ATM may be moved temporarily for security reasons, in the event of fire, casualty, riot or other emergency, provided that University uses its best efforts to promptly notify PNC Bank of such event, and to protect the security of the ATM(s).

4.    ATMs and ATM Rent

(a)    The ATMs that will be installed shall, at a minimum, perform cash withdrawals, transfers and balance inquiries.  The ATMs will have the ability to be upgraded to provide additional capabilities as the parties may mutually agree from time to time. 

(b)    The ATMs shall perform the functions described in Section 4(a) for users holding valid access cards.  The ATMs may be part of several networks pursuant to network agreements between PNC Bank and operators of regional networks (the "Network Agreements").  PNC Bank is required to comply with the marketing standards set forth by the network operator in the Network Agreements. 

(c)    ATM Rent:  As of the Effective Date, through December 31, 2019, PNC Bank shall pay to University ATM Rent payments of Fifty Thousand Dollars ($50,000.00), in equal monthly installments of Four Thousand One Hundred and Sixty Six Dollars and Sixty Six Cents ($4,166.66) on the first day of each month during the Initial Term and any Optional Renewal Term of the Agreement. ATM rent shall cover all existing and new ATM locations installed throughout the Initial Term and Optional Term. All payments made by PNC Bank hereunder shall be by check to the address designated by the University, or delivered by hand. 

(d)    In addition to the foregoing ATM Rental fees, PNC Bank shall, as further consideration of this Agreement, pay and discharge all real estate taxes, general and special assessments, which during the Term of this Agreement may be levied or assessed solely against the Locations and all improvements or other property thereon belonging to PNC Bank. Without limiting the foregoing, if at any time during the Term hereof, under the laws of Pennsylvania or any political subdivision or instrumentality thereof in which the Locations are situated, (A) a tax, assessment or other charge however described is levied or assessed against University for taxes and assessments imposed upon the Locations or improvements thereon (commonly known as real estate taxes), or (B) the incidents of real estate taxation, levy, valuation, or assessment are agreed to by University, is determined, modified, altered or otherwise shifted, in whole or in part, in lieu of or as a substitution for real estate taxes and assessments imposed upon the Locations or improvements, then PNC Bank covenants and agrees to pay and discharge said taxes, assessments or other in lieu of or substitution charges. University hereby agrees to give written notice to PNC Bank of such taxes, assessments or other charges. If University gives PNC Bank adequate prior notice as provided, PNC Bank agrees to and shall protect and hold harmless University and the Locations from liability for any and all such taxes, assessments and charges, together with any interest, penalties or other sums thereby imposed (other than as a result of acts or omissions of University, it agents, contractors or employees) and from any sale or other proceeding to enforce payment thereof.

5.    Installations

(a)    PNC Bank shall, using its own independent contractors, install at the Locations:

(i)    ATMs and, at its option, additional modules to the ATMs thereafter;

(ii)    such related machinery and equipment, including telecommunications equipment, alarm systems and signs, as are to be installed within the interior of the Locations as specified in the hereinafter described plans (the “Equipment”); and

(iii)    such wiring, connections, and hook-ups as are required to connect the ATMs to the dominant regional ATM network (the “Installations”).

(b)    University shall permit PNC Bank to install the ATMs and related Equipment and Installations as follows:

(i)    at the locations mutually agreed upon;

(ii)    University will use its best efforts to obtain approval of the installation from any parties whose approval is required to place an ATM at the Locations.  This applies to any ATM installed after the date of this ATM Agreement;

(iii)    PNC Bank will be responsible for obtaining, at its expense, all approvals required in connection with the installation, provided that University will cooperate with PNC Bank, and secure the cooperation of any necessary other parties, as required by local ordinances and practice, in making permit applications;

(iv)    PNC Bank will indemnify and save University harmless from and against all liability, loss, cost and expense arising in connection with the installation; and

(v)    Upon termination of the Agreement, PNC Bank shall remove the ATMs and all portions of the related Equipment and Installations not installed within utility company conduits or rights of way or within the walls, floors or ceiling of the Locations and may, at its option, remove any other portions of the related Installations, provided that PNC Bank shall cap all pipes and conduits and restore any damage to the Locations caused by such removal.

(c)    Signs may be installed only upon the mutual agreement of the parties. If the parties mutually agree to install signs, PNC Bank and University shall determine each of their obligations to pay the cost of the signs and costs of sign installation, maintenance and removal.

6.    Title

Title to and ownership of the ATMs and the related Equipment and Installations shall at all times be and remain in PNC Bank free and clear of all rights, title, interest, liens, security interests or claims owned, held, created or suffered by any person or entity claiming under, by or through University and such property shall be deemed movable personal property and not fixtures.  Nothing herein shall be deemed to constitute a conveyance from PNC Bank to University of the ATMs, related Equipment or Installations.  Upon the request of PNC Bank, University will request from any persons or entities owning or holding title to or liens upon or leases, security interests or other interests in the Locations written waivers or releases in form and substance acceptable to PNC Bank confirming that such party has no legal claims or interests in the ATMs and further confirming PNC Bank’s rights under this ATM Agreement.  PNC Bank shall have the right to place a label on the ATMs indicating its interest in such machine and related Equipment and Installations which label University agrees not to disturb.

7.    Operation, Servicing, Maintenance and Repair

The operation, servicing, maintenance and repair of the ATMs and the related Equipment and Installations shall be under the sole control of PNC Bank and its agents, employees and independent contractors.  University shall permit free access to the ATMs and related Equipment and Installations for all of the foregoing purposes during all normal operating hours of the business at the Locations.  PNC Bank will not restrict authorized University access to ATM sites. PNC Bank shall require all of its employees, agents and independent contractors who perform any of the aforesaid tasks at the Locations to (a) carry and present identification upon University’s request, and (b) cause as little disruption as possible to University’s business.  PNC Bank shall bear the expense of such operation, servicing, maintenance and repair. 

University will:

(a)    pay for the electricity usage by the ATM(s) and install the necessary outlets and connections, if required, at its expense;

(b)    keep the ATMs and the area around the ATMs clean, presentable and free from obstruction, and with respect to the Locations generally, University will continue to maintain the same standards of cleanliness, maintenance, repair and operation as are in effect on the date of this ATM Agreement;

(c)    pay all costs and expenses for ownership, operation, maintenance and repair of the Locations and business (including real estate taxes and utilities) not expressly made payable by PNC Bank herein; 

(d)    Maintain the Locations to allow for proper functioning of the ATM.

8.    Covenants

(a)     University hereby covenants as follows:

 (i)    it shall not use or permit the use of the PNC Bank name or logo without prior approval of PNC Bank;

(ii)    it shall use and permit the use of the ATM logos only in compliance with the requirements of the holders of rights in such logo.  University acknowledges that the ATM logos are registered trademarks where indicated; and
     
(iii)    upon performing all of its covenants and obligations hereunder, PNC Bank shall peacefully and quietly have, hold and enjoy the rights in each Location granted to it hereby subject to all of the covenants, terms and conditions herein contained.

(b)    PNC Bank hereby covenants as follows:

(i)    its ATMs will (i) comply with all applicable legal requirements, including, without limitation, laws/regulations relating to consumer protection and the requirements of the Americans with Disabilities Act in ensuring that the ATMs are readily useable by disabled persons; (ii) remain technologically current and that PNC Bank’s product offerings will reflect advances in the industry; and (iii) will be upgraded to permit the display of on-screen messages which have been previously approved by University; and

(ii)    it shall not use or permit the use of University’s Marks without prior written approval of University and subject at all times to University’s policies concerning use of such marks.
        
9.    Certain Rights of the Parties
             
(a)    PNC Bank reserves the right to impose a surcharge on users of its ATMs that are subject to this ATM Agreement. The surcharge shall be the same amount or less than the surcharge imposed for use of PNC Bank branch ATMs in the applicable Pennsylvania market area.  In the event the branch ATM surcharge is increased, then the surcharge applicable to the ATMs hereunder may also increase.  In no event will PNC Bank impose a surcharge hereunder that is applicable only to Constituents.

(b)    PNC Bank reserves the exclusive right to determine whether any surcharge hereunder shall be imposed upon PNC Bank cardholders.

(c)    Except as otherwise provided herein, during the Term of this Agreement, University will not grant to any person the right to install or operate any proposed new or replacement ATMs at the Locations or any other locations on the University campuses commencing after the Effective Date without first extending to PNC Bank a thirty (30) day right of first refusal to provide an additional ATM.  Should PNC Bank choose not to provide the additional ATM, the University may seek such services from another financial institution. 

(i)    During the Term hereof:

(A)    PNC Bank shall be permitted to have at least three (3) ATMs in the HUB, in addition to such ATMs as may be in the E-Branch Lease. 

(B)    In addition to the Penn State Federal Credit Union ATMs in the HUB-Robeson Building and the PNC Bank ATM in the E-Branch, five (5) additional ATM locations will be provided for in the HUB-Robeson Building.  During the Term, PNC Bank ATMs shall be installed in at least three of these locations and the other two locations may have ATMs from other financial institutions installed in them.

(C)    If it is determined by the parties to be commercially reasonable, PNC Bank may remove an ATM it has deployed on the campus.  In the event that PNC Bank chooses to remove an ATM for this reason, it is agreed that another    financial institution may install an ATM at such Location notwithstanding the provisions of this Section 9(c).

(d)    The following locations are excluded from this Agreement:  All Athletic Facilities, the Visitor Center, and the Bank of America building.

10.    Performance; Warranty
    
PNC Bank warrants that the ATMs in the Locations shall be fully operational 96% of the time, unless operation is prevented by Force Majeure or routine servicing of the ATMs.  PNC Bank will provide University with quarterly reports of the performance of the ATMs. 

11.    Security

(a)    University shall maintain security at the Locations in accordance with the standards for security generally at University’s facilities; University shall not be required to post a security guard for any ATM hereunder.  Except as otherwise provided herein, all costs and expenses incurred in connection with such security measures shall be borne by University. 

(b)    University shall notify PNC Bank of any damage to the Locations which adversely affects the operation or security of the ATMs, and University agrees to make, at its expense, such repairs to the Locations, as shall be necessary to correct such adverse effects.  

(c)     In the event of fire, casualty, riot or other emergency, University shall use reasonable efforts to protect the security of any affected ATM.  Once PNC Bank deems the affected ATM machine secured, whether by relocation (which shall be by PNC Bank) or otherwise (for example, but not in limitation of the foregoing, by removal), University’s security obligations hereunder shall again be governed by subsections (a) and (b) of this Section 11.  The parties agree that in the event of the emergency circumstances enumerated in this subsection 11 (c) time is of the essence and University and PNC Bank shall each act as quickly as reasonably possible in fulfilling its obligations hereunder.

12.    Insurance; Indemnity and Loss

University shall maintain or cause to be maintained, at no expense to PNC Bank, during the Term hereof, such fire and casualty insurance policies covering the Locations and related machinery, Equipment and improvements (excluding the ATMs and related Equipment and Installations), and general liability coverage with respect to the Locations, as is generally maintained by University at similar Locations.  In the event University is self-insured for the coverage hereunder, it shall provide PNC Bank with proof of self-insurance by submitting (a) a letter stating that fact, (b) University’s most recent financial statement, and (c) a state certification from University’s state of incorporation. PNC Bank shall be responsible for maintaining or causing to be maintained, at its expense, such fire, casualty, theft, and public liability insurance of and with respect to the ATMs and related Equipment and Installations as PNC Bank considers appropriate.

Each party shall maintain, and shall require its independent contractors to maintain worker’s compensation insurance with respect to their respective employees in the amounts required by applicable law.

Each party shall, upon request, provide to the other such evidence as shall be reasonably requested of the maintenance of required insurance.

13.    Term and Termination

This ATM Agreement shall commence on the Effective Date and shall continue until the Banking Services Agreement expires or is otherwise terminated.

14.    General

A.    Access:  University shall permit PNC Bank or its authorized service representative, to have access to the Location, subject to University’s reasonable security requirements, if any.  

B.    ADA Compliance:  During the Term of the Agreement, University shall comply with the Americans with Disabilities Act of 1990 ("ADA"), any amendments to the ADA, its implementing regulations, and applicable ADA Accessibility Guidelines for Buildings and Facilities, as well as all other federal, state and local laws regarding access to and service to individuals covered by the ADA.  University’s compliance obligation will include, but not be limited to, the design, construction and alteration of the Location as University may have to alter to be in compliance with the ADA.

C.    Notices:  All notices which either party may be required or desire to give to the other under this ATM Agreement, party shall be in writing and shall be given and deemed served on the date when hand delivered in writing to the applicable party, or if sent by certified mail, return receipt requested, or by courier service, notice shall be deemed served on the date received.  Notices sent by mail or courier shall be sent to the following addresses:

If to PNC Bank: 

PNC Bank, National Association
1600 Market Street, 8th Floor
Philadelphia, PA 19103
ATTN: Ken Justice, SVP
Telephone: 215-585-5134

With a copy to:

PNC Bank, National Association
One PNC Plaza 
249 Fifth Avenue 
P1-POPP-21-1 
Pittsburgh, Pennsylvania 15222 
ATTN: Chief Counsel, Consumer Bank 

If to University then to:  

The Pennsylvania State University
408 Old Main 
University Park, PA 16802
ATTN:  Associate VP Finance & Corporate Controller

With a copy to:

The Pennsylvania State University
227 West Beaver Avenue, Suite 507
State College, PA 16801
Attn: General Counsel    

The names and addresses for the purpose of this Section may be changed by either party giving written notice of such change in the manner herein provided for giving notice.  Unless and until such written notice is actually received, the last name and address stated by written notice or provided herein, if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder.

D.    Entire ATM Agreement:  This ATM Agreement constitutes the entire agreement and understanding among the parties with respect to the subject matter herein and the transactions contemplated herein and any and all previous understandings, proposals, negotiations, agreements, commitments and representations, whether oral or written, are merged herein and are superseded hereby.

E.    Counterparts:  This ATM Agreement may be executed in two or more counterparts each of which shall be deemed a duplicate original.  

[SIGNATURE PAGE TO FOLLOW]

IN WITNESS WHEREOF, intending to be legally bound, each party hereto has caused its duly authorized representative to execute this ATM Agreement on its behalf, as of the Effective Date.

PNC Bank, National Association            
("PNC Bank") 
                 

By: ______________________________________
Title: ____________________________________
Date: ____________________________________ 

The Pennsylvania State University
 ("University")

By: ______________________________________
Title: ____________________________________
Date: ____________________________________ 


 

 

 

Schedule A

 

 

Location

Leases/

Owned

Owner Name

Liens or Mortgage

Name Lien/

Interest Holder

Penn State/University Park

 

 

 

 

HUB Level 1

Owned

The Pennsylvania State University

 

 

HUB Food Court

Owned

The Pennsylvania State University

 

 

East Halls/Findlay Hall

Owned

The Pennsylvania State University

 

 

North Halls/Warnock Commons

Owned

The Pennsylvania State University

 

 

Pollock Commons

Owned

The Pennsylvania State University

 

 

Redifer Commons

Owned

The Pennsylvania State University

 

 

West Halls/Waring Hall

Owned

The Pennsylvania State University

 

 

IST Building

Owned

The Pennsylvania State University

 

 

Kern Building

Owned

The Pennsylvania State University

 

 

Rider (300) Building

Owned

The Pennsylvania State University

 

 

Smeal College of Business Bldg

Owned

The Pennsylvania State University

 

 

Nittany Lion Inn

Owned

The Pennsylvania State University

 

 

Penn State Conf Center and Hotel

Owned

The Pennsylvania State University

 

 

Bryce Jordan #1 & #2

Owned

The Pennsylvania State University

 

 

Pegula Arena

Owned

The Pennsylvania State University

 

 

Penn State Golf Courses Club House (seasonal)

Owned

The Pennsylvania State University

 

 

Penn State Campus ATMs

 

 

 

 

Penn State Abington

Owned

The Pennsylvania State University

 

 

Penn State Altoona/Aaron Bldg

Leased

Altoona Development Company

Blair County Development Corporation , City of Altoona, Greater Altoona Economic Development Corporation

Reliance Bank

Penn State Altoona/Slep Bldg

Owned

The Pennsylvania State University

 

 

Penn State Beaver

Owned

The Pennsylvania State University

 

 

Penn State Behrend

Owned

The Pennsylvania State University

 

 

Penn State Behrend/REDC Bldg

Owned

The Pennsylvania State University

 

 

Penn State Berks

Owned

The Pennsylvania State University

 

 

Penn State Brandywine

Owned

The Pennsylvania State University

 

 

Penn State Carlisle (Dickinson School of Law)

Owned

The Pennsylvania State University

 

 

Penn State Dubois

Owned

The Pennsylvania State University

 

 

Penn State Fayette

Owned

The Pennsylvania State University

 

 

Penn State Greater Allegheny

Owned

The Pennsylvania State University

 

 

Penn State Harrisburg

Owned

The Pennsylvania State University

 

 

Penn State Hazelton

Owned

The Pennsylvania State University

 

 

Penn State Hershey Medical School)

Owned

The Pennsylvania State University

 

 

Location

Leases/

Owned

Owner Name

Liens or Mortgage

Name Lien/

Interest Holder

Penn State Lehigh Valley

Owned

The Pennsylvania State University

 

 

Penn State Mont Alto

Owned

The Pennsylvania State University

 

 

Penn State New Kensington

Owned

The Pennsylvania State University

 

 

Penn State Shenango

Owned

The Pennsylvania State University

 

 

Penn State Wilkes-Barre

Owned

The Pennsylvania State University

 

 

Penn State Worthington Scranton

Owned

The Pennsylvania State University

 

 

Penn State York

Owned

The Pennsylvania State University

 

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK     


 

EXHIBIT B

E-BRANCH LEASE

THIS LEASE AGREEMENT ("Lease") is entered into this 1st day of January, 2015 by and between The Pennsylvania State University, organized under the laws of the Commonwealth of Pennsylvania, having offices at 208 Old Main, University Park, Pennsylvania 16802 (hereinafter sometimes referred to as "Landlord” or “University”).

AND

PNC BANK, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, having an office at 620 Liberty Avenue, Pittsburgh, Pennsylvania 15222, County of Allegheny, and Commonwealth of Pennsylvania, hereinafter called (“Tenant”), party of the Second part.

WITNESSETH:

WHEREAS, Landlord is the owner of a lot of land situated on the campus of The Pennsylvania State University,  located in University Park, in the Commonwealth of Pennsylvania (“Premises”), on which there is erected the building known as HUB-Robeson Center ("Building"); and

WHEREAS, Tenant has entered into that certain University Banking Services Agreement dated January 1, 2015 (the “Banking Services Agreement”) pursuant to which Tenant has agreed to provide Financial Services, including ATM(s) and the E-BRANCH to the University; and

WHEREAS, Tenant is entering into this Lease which is an integral part of the Tenant fulfilling Tenant’s obligations under the Banking Services Agreement.

NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties intending to be legally bound hereby; agree as follows:

1.    PREMISES. Landlord, in consideration of the lease payments provided in this Lease, leases to Tenant shell space within the Building known as 21 HUB-Robeson, Lower Level  and consisting of approximately Four Hundred One (401) square feet as more particularly shown in the floor plan attached hereto as Schedule A to this Lease, which space includes such areas as queuing line space and entrance to the secured areas, and for the placement of an “E-BRANCH” (as defined in the Banking Services Agreement) ("Demised Premises”). The Demised Premises is located on the ground floor of the HUB-Robeson Center. Landlord warrants that, as of the date hereof, the Premises and the Demised Premises are being delivered free of Hazardous Materials and are in compliance with the requirements of the Americans with Disabilities Act.  The E-BRANCH shall provide “Financial Services” and shall be equipped with at least two (2) ATMs. 

2.    TERM.  The Term of this Lease shall commence on the date hereof and shall terminate on December 31, 2019 (“Initial Term).  The Term of this Lease may be renewed in accordance with the provisions of Section 3, below. The Initial Term and any Renewal Term (as defined below) may be collectively referred to herein as a “Term”. 

3.    RENEWAL TERMS. In the event the term of the Banking Services Agreement is renewed, Tenant shall notify Landlord no later than six (6) months prior to the end of the Initial Term or a Renewal Term, if applicable, that it desires to renew the Term of this Lease. Upon such notification and the mutual written agreement of the parties hereto, the Lease may be renewed under the same terms and conditions as set forth herein for up to two (2) successive terms of one (1) year periods (each, a “Renewal Term”).  The lease payments during the Renewal Term shall be the same as the lease payments during the Initial Term.  The parties acknowledge that (i) Tenant entered into a Banking Services Agreement executed by Tenant, and (ii) Tenant’s willingness to enter into this Lease is directly related to, and conditioned upon, the continuation of the Banking Services Agreement.  Therefore, notwithstanding anything to the contrary herein contained, in the event the term of the Banking Services Agreement expires or is terminated before the expiration of the Initial Term, or any Renewal Term, of this Lease, Tenant or Landlord may terminate this Lease upon providing prior written notice to the non-terminating party (a “Banking Agreement Termination”).  The effective date of the Banking Agreement Termination shall be the date specified in the termination notice, or, in the absence of any date specified in such notice, the termination date of the Banking Services Agreement.  Notwithstanding anything contained herein to the contrary, the Term of this Lease may not be renewed if the term of the Banking Services Agreement has not also been renewed pursuant to its terms and conditions.  

4.     LEASE PAYMENTS. Tenant shall pay to Landlord, in advance without demand, and without deduction, counterclaim or set-off whatsoever, annual lease payments of Forty Thousand Dollars ($40,000.00), in equal monthly installments of Three Thousand Three Hundred Thirty-Three and 33/100 Dollars ($3,333.33), on the first of each month commencing on February 1, 2015.  All lease payments made by PNC Bank hereunder shall be by check to the address designated by the University, or delivered by hand. 

In addition to the foregoing Lease Payments, PNC Bank shall, as further consideration of this Agreement, pay and discharge all real estate taxes, general and special assessments, which during the Term of this Agreement may be levied or assessed solely against the Demised Premises and all improvements or other property thereon belonging to PNC Bank. Without limiting the foregoing, if at any time during the Term hereof, under the laws of Pennsylvania or any political subdivision or instrumentality thereof in which the Locations are situated, (A) a tax, assessment or other charge however described is levied or assessed against University for taxes and assessments imposed upon the Locations or improvements thereon (commonly known as real estate taxes), or (B) the incidents of real estate taxation, levy, valuation, or assessment are agreed to by University, is determined, modified, altered or otherwise shifted, in whole or in part, in lieu of or as a substitution for real estate taxes and assessments imposed upon the Locations or improvements, then PNC Bank covenants and agrees to pay and discharge said taxes, assessments or other in lieu of or substitution charges. University hereby agrees to give written notice to PNC Bank of such taxes, assessments or other charges. If University gives PNC Bank adequate prior notice as provided, PNC Bank agrees to and shall protect and hold harmless University and the Locations from liability for any and all such taxes, assessments and charges, together with any interest, penalties or other sums thereby imposed (other than as a result of acts or omissions of University, it agents, contractors or employees) and from any sale or other proceeding to enforce payment thereof.

5.    LATE PAYMENTS. In the event that Landlord has not received any lease payment from Tenant within  five (5) days after the date on which such payment is due, Tenant shall pay Landlord a late charge equal to One Hundred Fifty ($150) Dollars per month for each unpaid monthly payment until paid.

6.    POSSESSION. Tenant shall be entitled to possession on the first day of the term of this Lease, and shall yield possession to Landlord on the last day of the term of this Lease, unless otherwise agreed by both parties in writing.

7.    USE OF PREMISES. Tenant shall use the Demised Premises to conduct Financial Services and the Program, as defined in Banking Services Agreement and other related financial service operations only, and for no other purpose (“Use”). The Demised Premises may be used for another purpose only with the prior written consent of Landlord in its sole discretion.

8.    REMODELING OR STRUCTURAL IMPROVEMENTS. Tenant shall have the right to conduct construction or remodeling at Tenant's expense that may reasonably be required to use the Demised Premises as set forth herein. Tenant may also construct such fixtures, including signage, on the Demised Premises at Tenant's expense that appropriately facilitate its Use. Such construction shall be undertaken and such fixtures may be erected only with the prior written consent of Landlord, which consent shall not be unreasonably withheld; Tenant shall seek such consent by written request to Landlord accompanied by supporting documentation in reasonable detail.  At the end of the Lease term, Tenant shall be entitled to remove, or at the request of Landlord shall be required to remove, such fixtures, and shall return the Demised Premises to substantially the same condition as at the commencement of this Lease. Ordinary wear and tear, damage arising from a casualty not caused by the negligence of Tenant or any of its agents, and all structural changes, remodeling and additions to the Demised Premises made or done with the written consent of Landlord, shall be considered as exempt.

9.    MAINTENANCE. Landlord, at its sole cost and expense, shall maintain the Building within which the Demised Premises is located in good repair at all times, including structural items, Building systems, and Landlord's fixtures, and shall clean and maintain all common areas. Tenant, at its sole cost and expense, shall maintain the space constituting the Demised Premises in good, clean, attractive, safe and operating condition at all times consistent with Landlord's reasonable expectations and with the remainder of the Building.

10.  ACCESS BY LANDLORD TO PREMISES. Landlord, its agents, employees and contractors shall have the right, accompanied by a security officer of Tenant, to enter all parts of the Demised Premises during Tenant's business hours after giving prior notice to Tenant to (i) inspect the same, (ii) show the same to prospective purchasers or tenants, (iii) enforce and carry out any provision of this Lease, and (iii) without assuming responsibility to do so, to make repairs or alterations. In the event of an emergency endangering life or property, or in the event of Tenant's desertion or abandonment of the Demised Premises, Landlord shall have the right to enter by force.

11.  UTILITIES AND SERVICES. Landlord shall be responsible for all utilities in connection with the use of the Demised Premises by Tenant.   Notwithstanding the foregoing, Tenant shall be responsible for telephone, video surveillance and internet service and janitorial services within the confines of the Demised Premises.

12.  INSURANCE. (a) "Liability Insurance" is insurance providing coverage for sums the insured becomes legally obligated to pay as damages because of an occurrence resulting in property damage or in bodily injury (including sickness and disease, and including death from such injury, sickness or disease), or because of an occurrence resulting in personal injury or advertising injury, an example of which is insurance known at the date of this Agreement as "commercial general liability" insurance (formerly known as "comprehensive general liability"), and which coverage is provided under customary terms, conditions, and limitations, including occurrence-based coverage (and not claims-based coverage) as long as such coverage is available at commercially reasonable rates.

(b)     Tenant shall carry and cause its contractors to carry Liability Insurance with a limit of at least $5,000,000 (combined single limit for bodily injury and property damage) which limit is subject to increase every three years, on Landlord's reasonable request. Tenant's Liability Insurance is primary to Landlord's Liability Insurance for occurrences in the Demised Premises. The insurer must be licensed in the state in which the Demised Premises is located, give Landlord thirty (30) days' notice of cancellation or reduction in coverage, and furnish Landlord certificates of coverage on request. Under the Liability Insurance policy, the inclusion of additional insureds must not affect coverage for the named insured for claims made regarding this Agreement against Tenant where the claims would have been covered under the policy had the additional insured not been included.  Tenant’s Liability Insurance policies shall reflect that Landlord is an “additional insured”.  Tenant shall carry property insurance with respect to its furniture, fixtures and equipment providing "all risk” coverage. Tenant may use blanket policies.

(c)     Landlord shall carry Liability Insurance with a limit of at least $5,000,000 (combined single limit for bodily injury and property damage) which limit is subject to increase every three years, on Tenant's reasonable request. Landlord's Liability Insurance is primary to Tenant's Liability Insurance for occurrences in the Premises outside the Demised Premises. The insurer must be licensed in the state in which the Premises is located, give Tenant thirty (30) days' notice of cancellation or reduction in coverage, and furnish Tenant certificates of coverage on request. Under the Liability Insurance policy, the inclusion of additional insureds must not affect coverage for the named insured for claims made against it by additional insureds where the claims would have been covered under the policy had the additional insured not been included. The parties will coordinate the subrogation clauses of these coverages. To the extent required by any applicable Lease Agreement, Landlord shall carry property insurance on the Premises providing "all risk" coverage with a replacement cost endorsement. Landlord may use blanket policies.

(d)     Either party may self-insure as long as the self-insuring party's (or its parent corporation's) net worth exceeds $60,000,000 and the self-insuring party (or its parent corporation) is consistently able to meet its financial obligations as they mature and complies with the law applicable to self insurance.

(e)     The merchandise and other property of Tenant and its employees at the Demised Premises may be subject to damage or loss by reason of many hazards, such as theft, fire, leakage, heater power failure, accidents, defects in plumbing, boiler or other explosions, and the bursting of pipes. Insurance is obtainable against most if not all of such hazards. Landlord shall not be liable for any damage to the Demised Premises or to the fixtures or equipment of Tenant contained therein or any loss suffered by Tenant caused by fire or any such other hazards, excluding such damage or loss caused by the negligence or willful misconduct of Landlord, its employees, agents or subcontractors.

13.  INDEMNIFICATION. (a) Tenant shall indemnify Landlord, its affiliates and their respective officers, directors, employees and agents, hold them harmless and defend them (if requested) against any and all penalties, claims, actions, damages, liability and expense, including reasonable attorney's fees and court costs, resulting from a breach of any obligation under this Agreement or the activities or business of Tenant, any Tenant employees or any contractor of Tenant at the Demised Premises, except to the extent caused by the negligence or willful misconduct of Landlord or its Affiliates or their respective agents, employees or contractors.

(b)     Landlord shall indemnify Tenant, its Affiliates and their respective officers,  directors, employees and agents, hold them harmless and defend them (if requested) against any and all penalties, claims, actions, damages, liability and expense, including reasonable attorney's fee and court costs, resulting from a breach of any obligations under this Agreement or the activities or business of Landlord, any Landlord employees or any contractor or agent of Landlord at the Building, except to the extent caused by the negligence or willful misconduct of Tenant or its Affiliates or their respective agents, employees or contractors.

(c)     In any case where a party shall seek indemnification under this Agreement (the "Indemnified Party"), for a third party claim, suit or proceeding ("Third Party Claim"), such indemnification shall be conditioned on such Indemnified Party's compliance with the following procedures:

(i)     The Indemnified Party shall give prompt written notice ("Notice") of any Third Party Claim to the party from whom such indemnification is sought (the "Indemnifying Party"), specifying the amount and nature of such Third Party Claim and in accordance with the notice provisions set forth in Section 22.

(ii)     Provided that prompt Notice is given, unless the failure to give such Notice does not prejudice the interests of the Indemnifying Party, the Indemnifying Party shall promptly defend, contest, and otherwise protect the Indemnified party against such Third Party Claim, at its own expense and using counsel of its own choosing, which shall be reasonably satisfactory to the Indemnified Party.

(iii)     The Indemnified Party may, but shall not be obligated to participate in the defense of such Third Party Claim at its own expense and use counsel of its own choosing, but the Indemnifying Party shall be entitled to control the defense thereof unless the Indemnified Party shall relieve the Indemnifying Party from all liability for such Third Party Claim. The Indemnified Party shall cooperate and provide such assistance as the Indemnifying Party reasonably may request in connection with the Indemnifying Party's defense and shall be entitled to recover from the Indemnifying Party the actual reasonable out-of-pocket costs of providing such assistance. The Indemnifying Party shall inform the Indemnified Party on a regular basis of the status of such Third Party Claim and the Indemnifying Party’s defense thereof.

(iv)     If the Indemnifying Party shall control the defense of a Third Party Claim, the Indemnifying Party shall not compromise or settle such Third Party Claim without the Indemnified Party's prior written consent, if: (a) such compromise or settlement involves anything other than a monetary settlement (e.g., imposition of an injunction or other equitable relief upon the Indemnified Party); or (b) such compromise or settlement does not include the release of the Indemnified Party from all liability arising from or relating to such Third Party Claim.

(v)     If the Indemnifying Party fails timely to defend, contest, or otherwise protect against such Third Party Claim, the Indemnified Party may, but shall not be obligated to, defend, contest, or otherwise protect itself against the same, and make any compromise or settlement thereof in its sole discretion, and recover from the Indemnifying Party all losses of the Indemnified Party arising from or relating to such compromise or settlement.

14   DANGEROUS MATERIALS. Tenant shall not keep or have on the Demised Premises any article or thing of a dangerous, flammable, or explosive character that might substantially increase the danger of fire on the Demised Premises, or that might be considered hazardous by a responsible insurance company, unless the prior written consent of Landlord is obtained and proof of adequate insurance protection is provided by Tenant to Landlord. This shall not include the types of articles or items which are ordinarily used in a business setting but which may be considered dangerous, flammable or explosive.

15.  ASSIGNABILITY/SUBLETTING. Tenant may not assign or sublet all or any part of the Demised Premises. This prohibition of sublease or assignment does not apply for any assignment or transfer to any present or future affiliate, or parent of Tenant; provided that Tenant remains responsible for all obligations under this Agreement. 

16.  DESTRUCTION OR CONDEMNATION OF PREMISES.  If the Premises in which the Demised Premises exist are partially destroyed in a manner that prevents the conduct of Tenant's business within the Demised Premises in a normal manner, and if the damage is reasonably repairable within sixty (60) days after the occurrence of the destruction, and if the cost of repair is less than $100,000, Landlord shall repair the Premises and lease payments shall abate during the period of repair. However, if the damages are not repairable within sixty (60) days, or if the cost of repair is $100,000 or more, or if the Landlord is prevented from repairing the damage by forces beyond Landlord's control, or if the Premises of which the Demised Premises is a part is condemned, this Lease shall terminate twenty (20) days after receipt of written notice of such event or condition by either party.

17.  MECHANICS LIEN. Neither Tenant, nor anyone claiming through Tenant, shall have the right to file mechanics liens or any other kind of lien on the Demised Premises. Tenant agrees to give actual advance notice to any contractors, subcontractors or suppliers of goods, labor, or services that such liens will not be valid.

18.  DEFAULT. Tenant shall be in default of this Lease if Tenant fails to fulfill any lease obligation by which Tenant is bound. Subject to any governing provisions of law to the contrary, if Tenant fails to pay any monetary obligation or fails to cure any other obligation within ten days (10) (for a monetary obligation) or thirty (30) days (for any other obligation) after written notice of such default is received by Tenant, Landlord may take possession of the Demised Premises without further notice, and without prejudicing Landlord's rights to damages; provided, however, that if the nature of the default is such that the same cannot be reasonably cured within such thirty (30) day period, Tenant shall not be deemed to be in default if Tenant shall within such period commences such cure and thereafter diligently prosecute the same to completion. In the alternative, Landlord may elect to accept a cure of any financial obligations under this Lease. Tenant shall pay all costs, damages, and expenses suffered by Landlord, including reasonable attorney's fees, if any, by reason of Tenant's defaults.

Landlord shall be in default of this Lease if Landlord fails to fulfill any Lease obligation or term by which Landlord is bound.  If Landlord fails to cure any such obligation or term within thirty (30) days after receipt of written notice of such default from Tenant, then Tenant may perform the same for the account of and at the expense of Landlord provided, however, that if the nature of the default is such that the same cannot be reasonably cured within such thirty (30) day period, Landlord shall not be deemed to be in default if Landlord shall within such period commence such cure and thereafter diligently prosecute the same to completion.

19.  EXCUSE OF PERFORMANCE (FORCE MAJEURE). Notwithstanding anything in this Lease to the contrary, if either party shall be delayed or hindered in or prevented from performance of any act required herein by reason of any strike, lock-out, labor dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or controls, failure of power, inability to obtain any material or service, Act of God or other reasons of a like nature not related to the fault of either party, then performance of such act by either party shall be excused for the period of the delay and the period for the performance of any such act by either party shall be extended for a period equivalent to the period of such delay. Notwithstanding the foregoing, payment of rent by Tenant to Landlord shall not be excused during such time nor shall the term of this Lease be extended beyond the date set forth herein or subsequently agreed to by both parties in writing.

20.  CONDITION SUBSEQUENT. The effect of this Lease shall be binding upon the parties hereto at the time of the signing hereof with the condition subsequent that in the event that the appropriate regulators of Tenant do not grant approval of such Lease or the providing of the agreed services, then Tenant shall be released from further obligation under this Lease and agrees to release Landlord from same; provided, however, that in such event, Tenant shall pay to Landlord an amount equivalent to three (3) month's rent as liquidated damages and shall also remain liable for all direct damages suffered by Landlord. Landlord shall use its best efforts to mitigate its damages by promptly searching for a replacement tenant which will provide the same services at the same rate as Tenant has agreed.

21.  TENANT EMPLOYEES. Tenant agrees that it, its employees, agents and subcontractors and all persons about the Demised Premises under its control, shall and will abide by all regulations promulgated for the operation of the Building by the governing body of the Landlord provided such rules and regulations and any amendments thereto are made available to Tenant at least seven (7) days in advance of the effective date of such rules and regulations and further provided that such rules and regulations do not conflict with any laws or regulations applicable to Tenant's business and do not unreasonably impair E-Branch operations. Landlord agrees, to the best of Landlord's ability, to promptly notify Tenant at any time that rules or regulations are going to be enacted concerning the operation of the Building which could affect Tenant and further agrees to coordinate such rules and regulations with Tenant so that any special requirements of Tenant in the conduct of its business shall be taken into consideration prior to enactment by Landlord.  Tenant’s employees, while working at the E-Branch, shall be entitled to the nonexclusive use of the restroom facilities and any break room in the Building provided by Landlord for the convenience of Landlord’s employees.

22.  NOTICE. Notices under this Lease shall not be deemed valid unless given or served in writing and forwarded by certified mail, return receipt, postage prepaid, addressed as follows:

TO LANDLORD:
        
The Pennsylvania State University
408 Old Main 
University Park, PA 16802
ATTN:  Associate VP Finance & Corporate Controller

With a copy to:

The Pennsylvania State University
227 West Beaver Avenue, Suite 507
State College, PA 16801
Attn: General Counsel    

TO TENANT:

PNC Bank, National Association 
Attn: Retail Leasing Manager
620 Liberty Avenue
Two PNC Plaza, 19th Floor
Pittsburgh, Pennsylvania 15222

Such addresses may be changed from time to time by either party by providing notice as set forth above.

23.  AUTHORTIY OF PARTIES. Landlord and Tenant each warrants that it is authorized and empowered to enter into this Lease, that the person signing on its behalf is duly authorized to execute this Lease, and that no other signatures are necessary.

24.  BINDING OF SUCCESSORS. All terms and provisions of this Lease shall be binding upon and inure to the benefit of the parties hereto, and to their successor and assigns and legal representatives.

25.  CONSENT NOT UNREASONABLY WITHHELD. Except as otherwise set forth herein, all consents, permissions and approvals required or permitted by either party hereunder shall be in writing and shall not be withheld, conditioned or delayed unreasonably.

26.  NO JOINT VENTURE. Nothing contained in this Lease shall be deemed or construed by the parties hereto by any third party to create the relationship of principal and agent, or of partnership, or of joint venture between Landlord and Tenant.

27.  CONSTRUCTION. The titles of the sections or paragraphs of this Lease are for the convenience of the parties and shall not bind or limit any of the terms or provisions of this Lease. Whenever the context of this Lease requires, the neuter gender includes the masculine or the feminine, and the singular number includes the plural.

28.  ENTIRE AGREEMENT/AMENDMENT. This Lease contains the entire agreement of the parties with respect to subject matter hereof and there are no other promises or conditions in any other agreement, whether oral or written. This Lease may be modified or amended in writing, if the writing is signed by both parties obligated under the amendment.

29.  SEVERABILITY. If any portion of this Lease shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be held to be va1id and enforceable. If a court finds that any provision of this Lease is invalid or unenforceable. but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

30.  RECORDING. Neither party shall record this Lease in any form without the prior written consent of the other.

31.  WAIVER. The failure of either party to enforce any provisions of this Lease shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Lease.

32.  CUMULATIVE RIGHTS. The rights of the parties under this Lease are cumulative and shall not be construed as exclusive unless otherwise required by law.

33.  GOVERNING LAW. This Lease shall be construed in accordance with the laws of the Commonwealth of Pennsylvania (without regard to conflicts of law provisions of the State).

IN WITNESS WHEREOF, the parties hereto be legally bound have hereunto set their hands and seals this ___ day of ______________, 2015.

The Pennsylvania State University
(“Landlord”)    


By: ______________________________________
Title: ____________________________________
Date: ____________________________________

Witness: _________________________________

PNC Bank, National Association
(“Tenant”)

By: ______________________________________
Title: ____________________________________
Date: ____________________________________

Witness: _________________________________



Schedule A to Exhibit B

“Floor Plan”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT C

UNIVERSITY CAMPUSES

Penn State Abington

Penn State Altoona

Penn State Beaver

Penn State Erie (The Behrend College)

Penn State Berks

Penn State Brandywine

Penn State Carlisle (Dickinson School of Law)

Penn State Dubois

Penn State Fayette

Penn State Great Valley

Penn State Greater Allegheny

Penn State Harrisburg

Penn State Hazelton

Penn State Lehigh Valley

Penn State Hershey (Medical School)

Penn State Mont Alto

Penn State New Kensington

Penn State Schuylkill

Penn State Shenango

Penn State University Park

Penn State Wilkes-Barre

Penn State Worthington Scranton

Penn State York


EXHIBIT D

UNIVERSITY MARKS

1.  The University marks, logos and other graphics that are licensed under the terms of the Agreement are set forth below.

2.  PNC agrees to use the University Mark in accordance with the standards set forth below:

a.  Never alter the University Mark.
b.  Do not alter or re-proportion any part of the logotype.
c.  Do not substitute any other type style for the logotype.
d.  Do not change or re-proportion the shield.
e.  Do not reposition the shield in relation to the rule and logotype.
f.  Do not extend the rule to the left.

A style guide for use of the University should be reviewed at http://ur.psu.edu/stylemanual///graphic_identity/grunivmark.html for usage.


EXHIBIT E

PNC BANK MARKS

1.  The PNC Marks that are licensed under the terms of this Agreement are:

PNC Logo, PNC bank name in text form, pnc.com

 

 

 

 

 

 


2.  University agrees to use the PNC Marks in accordance with the standards set forth below:

a.  PNC must approve the “PNC” name being used.

b.  When using the PNC names, never alter (such as by changing the case or otherwise) or combine those names with any other words

c.  Use original reproduction artwork, never create your own PNC logo, or alter the original in any way 

d.  The PNC logo may ONLY be printed in black or in a color or colors approved by PNC

e.  The PNC logo may be reversed out of a dark color to white

PNC Bank shall pre-approve all uses of the PNC Bank Marks. 



EXHIBIT F

WEB LINKING AGREEMENT

THIS WEB LINKING AGREEMENT (this “Web Agreement”), is effective as of the 1st day of January 2015, (“Effective Date”), and entered into by and between is entered into by and between The Pennsylvania State University, an institution of higher education organized and operated under the laws of the Commonwealth of Pennsylvania, having offices at 408 Old Main, University Park, PA 16802 (“University”), and PNC Bank, National Association, a national banking association, (“PNC Bank”). This Web Agreement is an exhibit to and an integral part of that certain University Banking Services Agreement of even date herewith between University and PNC Bank (the “Banking Services Agreement”). Capitalized terms used in this Web Agreement and not otherwise defined herein shall have the meaning given them in the Banking Services Agreement. 

WHEREAS, PNC Bank maintains and operates a Website in which information regarding PNC Bank’s products and services is provided to the general public (“PNC Bank Website”);

WHEREAS, University maintains and operates a Website in which information regarding University is provided to the general public (“University Website”); and

WHEREAS, the parties desire to provide a link between the PNC Bank Website and the University Website via a Hyperlink (as defined below).

NOW, THEREFORE, the parties agree that a Hyperlink shall be established subject to the terms and conditions of this Web Agreement and the Banking Services Agreement, as applicable.

1.    DEFINITIONS

(a)     “Hyperlink” means an electronic pathway that may be displayed in the form of highlighted text, graphics or a button that connects one Webpage address with another Webpage address.

(b)      “Weblinking” or “Weblinks” means the linking of two or more Websites through the use of a Hyperlink.

(c)      “Webpage” means a viewable screen displaying information presented through a web browser in a single view sometimes requiring the user to scroll to review the entire page.

(d)      “Website” means one or more Webpages connected to the internet that may originate at one or more webserver computers.

2.      TERM AND TERMINATION

The term of this Web Agreement shall run concurrently with the Term of the Banking Services Agreement.  In addition, this Web Agreement may be terminated by either party upon thirty (30) days prior written notice to the other party.  The parties agree that upon receipt by either party of written notice of termination from the other party, both parties will immediately remove any and all Weblinks to the other party’s Website from each of their respective Websites.  In addition, either party may terminate this Agreement immediately if at any time content on the other party’s Website is reasonably deemed to be objectionable or inconsistent with the mission or philosophy of the terminating party.

3.      GRANT OF LICENSE

a)     PNC Bank grants to University a limited, nonexclusive and nontransferable license to use PNC Bank’s Marks as set forth on the attached Schedule A, for the sole and limited purpose of providing a Hyperlink between PNC Bank’s and University’s Websites. University agrees that it will comply with all of the requirements and restrictions set forth on Schedule A to this Exhibit F.

(b)    University grants to PNC Bank a limited, nonexclusive and nontransferable license to use University’s Marks as set forth on the attached Schedule B, for the sole and limited purpose of providing a Hyperlink between University Website and PNC Bank Website.  PNC Bank agrees that it will comply with all of the requirements and restrictions set forth on Schedule B to this Exhibit F.

4.    WARRANTIES 

(a)    University represents and warrants that it is the owner or has all necessary rights to license University Marks as specified in Section 3 above.  

(b)    PNC Bank represents and warrants that it is the owner of or has all necessary rights to PNC Bank Marks as specified in Section 3 above.  

[Signature page to follow]

IN WITNESS WHEREOF, intending to be legally bound, each party hereto has caused its duly authorized representative to execute this Web Linking Agreement on its behalf, as of the Effective Date.

THE PENNSYLVANIA STATE UNIVERSITY 

By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________                                  

PNC BANK, NATIONAL ASSOCIATION

By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________                                  
 

SCHEDULE A
TO “EXHIBIT F”
PNC BANK MARKS

1.  The PNC Marks that are licensed under the terms of this Web Linking Agreement are:

PNC Logo, PNC bank name in text form, pnc.com

 

 

 

 

 

 

2.  University agrees to use the PNC Marks in accordance with the standards set forth below:

a.  PNC must approve the “PNC” name being used.

b.  When using the PNC names, never alter (such as by changing the case or otherwise) or combine those names with any other words

c.  Use original reproduction artwork, never create your own PNC logo, or alter the original in any way 

d.  The PNC logo may ONLY be printed in black or in a color or colors approved by PNC

e.  The PNC logo may be reversed out of a dark color to white

PNC Bank shall pre-approve all uses of the PNC Bank Marks. 

 

SCHEDULE B
TO “EXHIBIT F”
UNIVERSITY MARKS

1.  The University marks, logos and other graphics that are licensed under the terms of the Agreement are set forth below.

2.  PNC agrees to use the University Mark in accordance with the standards set forth below:

a.  Never alter the University Mark.
b.  Do not alter or re-proportion any part of the logotype.
c.  Do not substitute any other type style for the logotype.
d.  Do not change or re-proportion the shield.
e.  Do not reposition the shield in relation to the rule and logotype.
f.  Do not extend the rule to the left.

A style guide for use of the University should be reviewed at http://ur.psu.edu/stylemanual///graphic_identity/grunivmark.html for usage.

The University must review and approve uses of the id+ and University Marks.

PAGE INTENTIONALLY LEFT BLANK




 

FIRST AMENDMENT TO THE UNIVERSITY BANKING SERVICES AGREEMENT

THIS FIRST AMENDMENT to the University Banking Services Agreement (the “First Amendment”) is made and entered into this 30th________ day of June______ 2016, (the “First Amendment Effective Date”), by and between The Pennsylvania State University, (“University”) and PNC Bank, National Association, a national banking association with its principal office located at 300 Fifth Avenue, Pittsburgh, PA 15222, (“PNC Bank”).  This First Amendment amends the Agreement in accordance with the terms set forth herein and together, the Amendment(s) and the Agreement constitute a single revised Agreement.  All capitalized terms used in this First Amendment shall have the meaning given them in the Agreement unless otherwise defined herein or the context hereof clearly requires otherwise. 

WHEREAS, University and PNC Bank entered into a University Banking Services Agreement dated as of January 1, 2015 (the “Agreement”); 

WHEREAS, PNC Bank and University have agreed to amend certain terms of the Agreement in accordance with the provisions set forth in this First Amendment. 

NOW therefore, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.    Section 25. Notices, is hereby revised to update the addresses as follows: 

If to University then to: 
The Pennsylvania State University
408 Old Main
University Park, PA 16802
Attn:  Associate VP Finance & Corporate Controller

It to PNC Bank, then to:
PNC Bank, National Association
300 Fifth Avenue, 23rd Floor
Pittsburgh, PA 15222
Attn:  Manager, University Banking

With a copy to:
The Pennsylvania State University
227 West Beaver Avenue, Suite 507
State College, PA 16801
Attn:  General Counsel

With a copy to:
PNC Bank, National Association
300 Fifth Avenue, 19th Floor
Pittsburgh, PA 15222
Attn:  Chief Counsel, Retail Banking

2.    New Exhibit H, Department of Education Cash Management Compliance Agreement, (“CM Agreement”), is hereby added and attached hereto and incorporated by reference into the Agreement.

3.    In addition to the termination provisions set forth in Section 17 of the Agreement, the University may terminate the Agreement in accordance with the termination provisions set forth in the CM Agreement. 

4.    The rights and obligations of PNC hereunder shall not extend to the University’s Schuylkill Campus unless and until PNC provides written advice to the University to the effect that the inclusion of such campus within the scope of this Agreement will not cause the University to be in violation of any provision of the DoE Regulation.

5.    All provisions of the Agreement not specifically mentioned in this First Amendment are hereby ratified and reconfirmed and the Agreement remains in full force and effect.


IN WITNESS WHEREOF, intending to be legally bound, each party hereto has caused its duly authorized representative to execute this First Amendment on its behalf, as of the First Amendment Effective Date.


PNC Bank, National Association
("PNC Bank") 

By: ______________________________________
Title: ____________________________________
Date: ____________________________________

The Pennsylvania State University
(“University”)

By: ______________________________________
Title: ____________________________________
Date: ____________________________________



EXHIBIT H

DEPARTMENT OF EDUCATION CASH MANAGEMENT 
COMPLIANCE AGREEMENT 

THIS DEPARTMENT OF EDUCATION CASH MANAGEMENT COMPLIANCE AGREEMENT (“CM Agreement”), is entered into this 30th day of June 2016, by and between The Pennsylvania State University, an institution of higher education organized and operated under the laws of the Commonwealth of Pennsylvania having offices at 208 Old Main, University Park, PA 16802 (“University”), and PNC Bank, National Association, a national banking association (“PNC Bank”).  This CM Agreement is an exhibit to and an integral part of that certain University Banking Services Agreement dated as of January 1, 2015 between University and PNC Bank, as amended by a First Amendment to the University Banking Services Agreement dated as of June 30, 2016 (as amended, the “Agreement”).  Capitalized terms used in this CM Agreement and not otherwise defined herein, shall have the meaning given them in the Agreement.

WHEREAS, the parties have entered into the Agreement under which certain specified services create a Tier Two Arrangement; and

WHEREAS, the DoE Regulation imposes various requirements upon the University as a party to a “Tier Two Arrangement” (as defined herein) with PNC Bank. 

NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, it is agreed as follows:

1.    Definitions

(a)    “Access Device” shall mean a card, code, or other means of access to the PNC Financial Account, or any combination thereof, that may be used by a student to initiate electronic fund transfers. 

(b)    “Award Year” shall mean each year during the Term of the Agreement in which the University is entitled to receive compensation under the Agreement (e.g., royalties, rent, etc.).

(c)    “Customer Complaint” shall mean when a PNC Bank customer, prospective customer or other user of PNC Bank’s products or services who is also a full or part time student of the University, expresses dissatisfaction with PNC Bank’s products, services and/or business practices within the scope of the engagement between PNC Bank and the University, regardless of whether such dissatisfaction is expressed verbally, in writing or by electronic or other means. Customer Complaints shall be handled according to the University’s policies and procedures. 

(d)    “Direct Marketing” shall mean: (i) the University communicating information directly to its students about the PNC Financial Account and how it may be opened; (ii) cobranding of the PNC Financial Account or Access Device with the University’s name, logo, mascot, or other affiliation and marketing of such cobranded PNC Financial Account or Access Device principally to students at the University; or (iii) providing a card or tool (such as a student ID card) to a student for University purposes, and validating such cards or tool, so as to enable the student to use the card or tool to access a financial account.

(e)    “DoE Regulation” shall mean the Department of Education Regulation for Cash Management, as amended from time to time, (34 CFR 668).

(f)    “Effective Date” shall mean July 1, 2016.

(g)    “Financial Account” shall mean a student’s checking or savings account, prepaid card account, or other consumer asset account held directly or indirectly by the Financial Institution.

(h)    “Financial Institution” shall mean PNC Bank.

(i)    “PNC Financial Account” shall mean any Financial Account offered by PNC Bank under the Agreement (which does not and shall not include credit cards). 

(j)    “PNC Financial Account Data” means information regarding the number of University students who had PNC Financial Accounts at any time during the most recently completed Award Year and the mean and median of the actual costs incurred by students who have PNC Financial Account(s).  PNC Bank shall use commercially reasonable standards to prepare the information.

(k)    “Tier Two Arrangement” shall mean that an institution located in a state has a contract with a financial institution, or entity that offers financial accounts through a financial institution, under which financial accounts are offered and marketed directly to students enrolled at the institution. 

(l)    “Title IV” shall mean Title IV of the Higher Education Act of 1965, as amended, and any rule, regulation, instruction or procedure issued by the Secretary.

2.    Student Choice

PNC Bank shall provide a list of the major features and fees commonly assessed with the PNC Financial Account, (the “PNC List”) to the University not less than thirty (30) days prior to the date on which the University is required to provide such list to its students under the DoE Regulation, which shall be no later than June 1, 2016.  PNC Bank may, in its discretion, provide the PNC List in the form of a PNC URL. In the event of any change to the PNC List, PNC Bank shall give prompt notice of any change to the PNC List and shall provide an updated PNC List to the University promptly but in no event later than thirty (30) days following the date of such change.

3.    Customer Complaints

In the event that the University receives a Customer Complaint that (i) the University is unable to resolve, or (ii) becomes public knowledge (e.g., media), or (iii) raises questions related to compliance with applicable law, the University shall immediately notify PNC Bank and deliver to PNC Bank a written summary or copy of such Customer Complaint along with associated correspondence and information.  

4.    University DoE Regulation Compliance 

(a)    Student Consent.  PNC Bank complies, and will during the Term of the Agreement comply, with all applicable laws that govern the account opening process, including without limitation by (i) securing each student’s consent prior to opening a PNC Financial Account or validating any Access Device with respect to any such PNC Financial Account to enable such student to access the PNC Financial Account.  The Financial Institution has reviewed its account opening policy with the University and the University has concluded the student consent requirement of the DoE Regulation is deemed satisfied if PNC Bank secures such student’s consent prior to opening a PNC Financial Account.

(i)  To the extent that such prior notice does not conflict with PNC Bank’s obligations or prohibitions under federal or state law, PNC Bank will make a good faith effort to notify University as soon as practicable of a change to the terms of PNC Financial Account that results in the addition of any of the following fees: (a) an account opening fee; (b) a fee to use PNC ATMs: or (c) a fee to activate any Access Device.  In any event, PNC Bank will notify the University no less than thirty (30) days from the effective date of a change to any terms of the PNC Financial Account.  In the event of any change in fees that would cause the University to be in violation of paragraph (f)(4)(vi) of the DoE Regulation, the University shall have the right to terminate the Agreement upon ninety (90) days’ notice to PNC Bank. 

(b)    Student Choice.  The University shall post the PNC List on its website.  

(c)    Agreement.  On or before the effective date set forth in the DoE Regulation, the University shall disclose, on the University website, a copy of the Agreement (other than portions of the Agreement that, if disclosed, would compromise personal privacy, proprietary information technology, or the security of information technology or of physical facilities).  

(d)    Compensation and PNC Financial Account Data.  Under the DoE Regulation the University is required to disclose on the University website, in a manner defined by the Secretary of Education, certain information, which may include direct or indirect compensation, regarding the most recently completed Award Year under the terms of the Agreement. Under the DoE Regulation the University is also required to disclose the PNC Financial Account Data. In addition, the University is required to provide the Secretary of the Department of Education with an up-to-date URL so that this Agreement and the PNC Financial Account Data can be published in a centralized database accessible to the public.

(e)    ATMs.  The ATM requirements set forth by the DoE Regulation are satisfied pursuant to the ATM License Agreement which is an exhibit to the Agreement.

(f)    Best Interest of the Students.  Under the DoE Regulation, the University is required to conduct reasonable due diligence reviews in a manner and frequency defined by the Secretary of Education, to ascertain whether the fees charged by PNC Bank to customers who have obtained the PNC Financial Account are, considered as a whole, consistent with or below prevailing market rates (the “Review”).  

(1)    PNC Bank shall provide such information as the University may reasonably request in connection with any such Review by the University.  

(2)    The University shall provide PNC Bank with a copy of the results of each Review within fifteen (15) days from the completion of the review.   

(3)    The DoE Regulation requires the University to have the right to terminate the Agreement if the PNC Financial Account fees are not, considered as a whole, consistent with or below prevailing market rates.  Additionally, the DoE Regulation requires that the University have the right to terminate the Agreement should it receive Customer Complaints from PNC Bank customers who are full or part time students of the University.  

(a)    The University agrees that, prior to terminating the Agreement under this Section 4(g)(3), the University shall enter into a sixty (60) day discussion period with Financial Institution (the “Discussion Period”).  During said Discussion Period the University and Financial Institution shall review the findings of the Review or the Customer Complaints, as applicable, and. 

(i)    if the parties mutually agree the findings of the Review are inaccurate or non-conclusive the Agreement shall remain in full force and effect;
 
(ii)    if the parties determine corrective action is required they will negotiate in good faith to establish a commercially reasonable plan to address those items considered unsatisfactory in the Review or results from Customer Complaints (the “Plan”) and a time line for implementation (the “Plan Implementation Period). The Financial Institution shall begin implementation of the Plan promptly following the date upon which the parties mutually agree to the Plan in writing. 
   
(b)    If the parties cannot agree to a Plan or is the Financial Institution does not satisfactorily complete the Plan within the Plan Implementation Period, then the University may terminate the Agreement upon ninety (90) days written notice to the Financial Institution.  The University shall provide such notice no later than thirty (30) days after the expiration of the Discussion Period or the Plan Implementation Period. This shall not be deemed a condition of default by the Financial Institution under the Agreement.  

5.    DoE Compliance Information

In order to comply with the DoE Regulation, the University may be required to disclose certain financial and other information, including information  is deemed by the Financial Institution to be proprietary and/or confidential in nature (“DoE Compliance Information”)

(a)    Any and all DoE Compliance Information to be disclosed by the University regarding the Agreement or the PNC Financial Account(s) shall be provided by the Financial Institution to the University, on a timely basis, including but not limited to: (i) PNC Financial Account Data, or information related thereto: (ii) information used to derive the PNC List; and (iii) any other information, including the Agreement, which is required to be disclosed under the DoE Regulation.  

(b)    The Financial Institution reserves the right to revise the DoE Compliance Information as deemed necessary to ensure the accuracy of any information that is provided by the University regarding the Financial Institution, the PNC Financial Account, and any other information related thereto. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK AND 
SIGNATURE PAGE TO FOLLOW]

IN WITNESS WHEREOF, intending to be legally bound, each party hereto has caused its duly authorized representative to execute this Department of Education Cash Management Compliance Agreement on its behalf, as of the Effective Date.

THE PENNSYLVANIA STATE UNIVERSITY 

By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________                           

PNC BANK, NATIONAL ASSOCIATION

By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________