This Addendum dated December 22, 1995 shall act to amend, modify,
supplement or augment that certain MoneyGram Agency and Trust Agreement
("Agreement") in effect, as of the date hereof, by and between AMERICAN
EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. ("Amex") and SUPERMAIL
INTERNATIONAL ("Agent"). The terms used herein shall be consistent with
those used in the Agreement.
In consideration of the promises and the mutual covenants of the parties
hereinafter set forth to be paid, kept and performed, it is agreed as
follows:
1. Notwithstanding anything in the Agreement to the contrary, this
Addendum effectuates an extension of the initial Term of the
Agreement for a period of seven (7) years form the date hereof.
Additionally, upon expiration of such seven (7) year Initial Term,
the Agreement shall continue in effect until terminated by either
party by providing the other party with no less than one hundred
eighty (180) days prior written notice.
2. The following Sections of Subsections of the Agreement are hereby
deleted: Section 22 and Subsections 2.1,2.2,2.4. All of the
remaining Sections of Subsections of the Agreement are hereby
renumbered accordingly.
3. The new Subsection shall be inserted into the "Additional Services
to be Provided by Amex" Section of the Agreement, reading as follows:
"Amex agrees to provide Agent with a personal computer at each
Location for Agent's use to provide Money Transfer Services
during the Initial Term. Agent agrees to use such personal
computer for no less than ninety percent (90%) of Agent's money
transfers. If Agent uses such personal computer for less than
ninety percent (90%) of Agent's money transfers during any one
month period, Amex may remove such personal computer from any
such Agent's Location."
4. A new Section entitled "Indemnification, Limitation of Damages"
shall be inserted into the Agreement, reading as follows:
"(a) Agent shall reiburse, indemnify and hold Amex, it parents,
affiliateds, directors, officers, employees and assigns harmless
from all losses, claims, demands, actions, suits, proceedings or
judgements, including costs, expenses and reasonable attorney's
fee's assessed against Amex resulting in whole or in part, from
actions or omissions, whether done negligently or otherwise, by
Agent, its agents, directors officers, employees or representatives
arising out of the violation of any laws, rules, regulations or
ordinances by Agent. The indemnification obligations set forth
hereinabove shall survive the termination of this Agreement."
"(b) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
AMEX'S MONETARY LIABILITY TO AGENT UNDER THIS AGREEMENT SHALL BE
LIMITED TO ACTUAL DAMAGES SUFFERED BY AGENT, AND IN ANY EVENT AMEX
SHALL NOT BE LIABLE TO AGENT FOR ANY OTHER DAMAGES OF AGENT INCLUDING
CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, LOSS OF
PROFITS, PUNITIVE OR ANY OTHER DAMAGES."
5. The "Assignment" Section of the Agreement is hereby revised to the
extent to allow for the inclusion of the following language:
"Amex may also assign any or all of its rights or obligations under
this Agreement to any third party and/or Integrated Payment Systems,
Inc. (IPS) and its assignees, upon notice to Agent but without the
consent of Agent, and any assignee of Amex may provide money transfer
services to Agent in a new name;provided, however, that such assignee
shall be obligated to assume all of the duties or obligations
assigned by Amex."
6. The following language shall be added to the existing "Advertising"
Section of the Agreement:
"Amex and Agent agree to participate in an fund cooperative adver-
tisements for MoneyGram Money Transfer Services. Any and all
advertisement or marketing materials shall be approved by Amex prior
to the production or distribution of such advertisement or marketing
materials. Amex agrees to spend and pay to or for the benefit of
Agent, two (2) times the amount the Agent spends on such approved
advertising and marketing materials; provided, however, Amex shall
not spend more than $ ----- per Location per year under this
Subsection. The parties agree that the advertising and marketing
expenditures referred to above shall not be expended without the
prior consent of both parties, which consent shall not be
unreasonably withheld by either party."
7. Notwithstanding anything in the Agreement to the contrary, Amex
agrees to spend a maximum amount of $------- , to promote MoneyGram
during the Xxxx pilot program, at the Xxxx pilot stores located in
the Washington, DC and Boston, Massachusetts market areas.
8. Notwithstanding anything in the Agreement to the contrary, during
the full term of the Agreement Amex shall be Agent's sole and
exclusive source for money transfer services.
9. Notwithstanding anything in the Agreement to the contrary Amex,
withing sixty days after the date hereof, agrees to pay Agent a bonus
in an amount of $---------.
a. Alist of the Money Transfer Services Locations currently owned
or leased by Agent, which are free to sell MoneyGram as of the date
hereof, are set forth on Exhibit A, which is attached hereto and
made a part hereof. If Agent should cease for any reason, including
but not limited to the sale (unless the Agreement is assumed by the
buyer of Agent's Location and Amex consents to such assumption,
which consent shall not be unreasonably withheld) or closing of
Locations, to offer MoneyGram services for sale at any Location
listed on Exhibit A at any time during the Initial Term of the
Agreement, or unless Agent otherwise provides a replacement location,
for any such Location which ceases to offer MoneyGram services (to
Amex's reasonable satisfaction), then Amex may by notice to Agent,
demand prepayment of an amount calculated as provided in the next
sentence (the "Bonus Rebate") which shall be repaid no later than
thirty (30) days after the demand for repayment is made. The Bonus
Rebate shall be calculated as provided in the next sentence (the
"Bonus Rebate") which shall be repaid no later than xxxxx (30) days
after the demand for repayment is made. The Bonus Rebate shall be
calculated by multiplying the proportionate amount of bonus,
applicable to such Location, by a number arrived at by dividing the
number of days remaining from the date such Location stops selling
MoneyGram services through the seventh anniversary of the Start Date
by 2555 (number of days in the seven year period from the date
hereof to the seventh anniversay thereof).
10. Notwithstanding anything in the Agreement to the contrary, Amex also
agrees to pay Agent an additional bonus for any new Locations,
("Location Bonus") implementing Money Transfer Services after the date
hereof. All such Locations shall be added to Exhibit "A", and
identified as a new Location, as applicable. The amount of the
Location bonus will be calculated in the following manner. Any
Location added by Agent in the first year of the Initial Term of the
Agreement will receive from Amex a $---- start-up bonus within 60
days of its state date with an additional $---- to be paid to Agent
as a Performance Bonus if and when Agent's new Location reaches a
transaction level of 5,000 transactions (total of both Send and
Receive transactions) over any given consecutive 12 month period,
during the Initial Term. Any Location added by Agent in the second
year of the Initial Term of the Agreement will receive from Amex, a
$---- start-up Bonus within 60 days of its start date with an
additional $---- to be paid to Agent as a Performance Bonus if and
when Agent's new Location reaches a transaction level of 5,000
transactions (total of both Send and Receive transactions) over any
given consecutive 12 month period, during the Initial Term. Any
Location added by Agent in the third year of the Initial Term of
the Agreement will receive from Amex as a $---- start-up Bonus within
60 days of its start date with an additional $---- to be paid to Agent
as a Performance Bonus if and when Agent's new Location reaches a
transaction level of 5,000 transactions (total of both Send and
Receive transactions) over any given consecutive 12 month period,
during the Initial Term. Any Location added by Agent in the fourth
year of the Initial Term of the Agreement will receive from Amex a
$---- start-up Bonus within 60 days of its start date with an
additional $---- to be paid to Agent as a Performance Bonus if and
when Agent's new Location reaches a transaction level of 5,000
transactions) over any given consecutive 12 month period, during
the initial Term. Any Location added by Agent in the fifth year of
the Initial Term of the Agreement will receive from Amex a $----
start-up bonus within 60 days of its start date with an additional
$---- to be paid to Agent as a Performance Bonus if and when
Agent's new Location reaches a transaction level of 5,000 transactions
(total of both Send and Receive transactions) over any given con-
secutive 12 month period, during the Initial Term. Any Location
added by Agent in the sixth year of the Initial Term of the
Agreement will receive from Amex a $---- start-up bonus within
60 days of its start date with an additional $---- to be paid to
Agent as a Performance Bonus if and when Agent's new Location reaches
a transaction level of 5,000 transactions (total of both Send and
Receive transactions) over any given consecutive 12 month period,
during the Initial Term. Any location added by Agent in the seventh
year of the Initial Term of the Agreement will receive from Amex a
$---- start-up bonus within 60 days of its start date with an
additional $---- to be paid to Agent as a Performance Bonus if and
when Agent's new Location reaches a transaction level of 5,000
transactions (total of both Send and Receive transactions) over any
given consecutive 12 month period, during the Initial Term.
a. If agent should cease for any reason, including but not limited
to the sale (unless the Agreement is assumed by the buyer of
Agent's Location and Amex consents to such assumption, which
consent shall not be unreasonably withheld) or closing of
Locations, to offer MoneyGram services for sale at any Location,
identified as a new Location, listed on Exhibit A at any time
during the Initial Term of the Agreement, or unless Agent
otherwise provides a replacement Location, for any such new
Location, for any such new Location which ceases to offer Money
Gram services (to Amex's reasonable satisfaction), then Amex
may, by notice to Agent, demand repayment of an amount calculated
as provided in the next sentence (the "Location/Performance Bonus
Rebate") which shall be repaid no later than thirty (30) days
after the demand for repayment is made. The Location/Performance
Bonus Rebate shall be calculated by multiplying the proportionate
amount of Location/Performance Bonus, applicable to such Location
by a number arrived at by dividing the number of days remaining
from the date such Location by a number arrived at by dividing
the number of days remaining from the date hereof by 2555 (the
number of days in the seven year period from the date hereof, to
the seventh anniversary thereof).
11. Notwithstanding anything in the Agreement to the contrary, Amex
agrees to guarantee that Agent receives minimum annual MoneyGram
commission payments pursuant to the following schedule: subject to
the conditions set forth below, for the MoneyGram services Amex
agrees to pay Agent amounts (the "Guaranteed Minimum Payment(s)")
determined as follows: with respect to the first year (the "First
Year") following the date hereof, Amex will pay Agent a sum equal
to the amount, if any, by which the sum of $----- exceeds Agent's
actual commissions earned for such Year, with respect to the
second year (the "Second Year") following the date hereof, Xxxx
will pay Agent a sum equal to the amount, if any, by which the
sum of $---- exceeds Agent's actual Commission earned for such
Year, with respect to the third year (the "Third Year") following
the date hereof, Amex will pay Agent a sum equal to the amount, if
any, by which the sum of $---- exceeds Agent's actual Commissions
earned for such Year, with respect to the fourth year (the "fourth
Year") following the date hereof, Amex will pay Agent a sum equal to
the amount, if any, by which the sum of $---- exceeds Agent's actual
Commissions earned for such Year, with respect to the fifth year
(the "Fifth Year") following the date hereof, Amex will pay Agent a
sum equal to the amount, if any, by which the sum of $----exceeds
Agent's actual Commissions earned for such year, with respect to the
sixth year (the "sixth Year") following the date hereof, Amex will
pay Agent a sum equal to the amount, if any, by which the sum of
$---- exceeds Agent's actual Commissions earned for such year,
with respect to the seventh year (the "Seventh Year") following the
date hereof, Amex will pay Agent a sum equal to the amount, if any,
by which the sum of $----exceeds Agent's actual Commissions earned
for such year.
12. Notwithstanding anythin in the Agreement to the contrary, Agent shall
comply with all of Amex's "ISDN" requirements with respect to all
Transfer Initiation transactions.
13. Any Schedules attached to this Addendum shall automatically replace
any counterpart Schedules that are, as of the date hereof, attached
to the Agreement. Any other Schedules attached to the Agreement
that are impacted by the revisions incorporated in this Addendum
are either deleted or revised accordingly.
14. All other terms, conditions and provisions of the Agreement which
are not otherwise altered, affected or impacted by the terms,
conditions and provisions contained herein, shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by their duly authorized representatives, as of the date first
above written.
SUPERMAIL INTERNATIONAL AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: Xxxxxxxxx X. Xxxxxxxxx By: Xxxxx Xxxxx
Title: CEO Title: Office of the President
