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REJECTED ACCOUNTS MONITORING AGREEMENT
THIS MONITORING AGREEMENT, dated as of March 28, 1996, is entered
into between Masada Security, Inc., a Delaware corporation ("Masada"), and
Xxxxxx Sender, as Trustee for the bankruptcy estates of InterCap Funds Joint
Venture, a Colorado general partnership ("Venture"), Security Data Group of
California, Inc., a California corporation ("SDG"), IMIF IV-C Service Corp., a
Colorado corporation ("Service") (the bankruptcy estates of Venture, SDG, and
Service are collectively referred to as "Seller").
Recitals
A. Masada purchased certain security alarm accounts from Seller
pursuant to that certain Asset Purchase and Sale Agreement, dated on or about
March 27, 1996 (the "Purchase Agreement").
B. Section 1.8 of the Purchase Agreement provides that certain
nonperforming security alarm accounts described in Exhibit A attached hereto
(the "Alarm Accounts") shall be reconveyed by Masada to Seller.
C. Seller desires that Masada furnish certain monitoring services for
Seller in accordance with the terms of this Agreement.
THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Appointment of Masada. Seller hereby appoints and authorizes
Masada, and Masada hereby accepts such appointment, to perform Monitoring
Services (as hereinafter defined) for and in connection with the Alarm Accounts
upon the terms and conditions set forth herein.
2. Consideration. Masada is agreeing to perform its obligations
hereunder in consideration of a flat fee of $5.00 for each Alarm Account for
each thirty (30) day period, which amount is subject to proration based upon the
actual number of days that Monitoring Services are provided.
3. Maintenance of Facilities. Masada shall use all reasonable and
necessary efforts, consistent with its past custom and practice, to (a) use and
maintain its present Birmingham, Alabama monitoring facilities (the
"Facilities") in conformity and compliance with this Agreement and all
applicable governmental laws, ordinances, regulations and rules; and, (b) pay
for and continue in full force and effect all necessary federal, state and city
licenses, permits, certificates and other authorizations of any kind required
for the use and operation of the Facilities and/or the performance of its
obligations hereunder.
4. Ownership of Contracts and Accounts. Notwithstanding the
authority conferred by Seller on Masada under this Agreement, from and after the
reconveyance of the Alarm Accounts from Masada to Seller, Seller shall continue
to own the Alarm Accounts and the related contracts, including the proceeds
thereof.
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5. Relationship of Seller and Masada. The relationship of Seller and
Masada is one of principal and independent contractor, respectively; neither
Seller nor its personnel, agents, employees, officers or directors shall be
deemed employees or agents of Masada and neither Masada nor its personnel,
agents, employees, officers or directors shall be deemed employees or agents of
Seller. Masada shall hire and employ, in its sole discretion and at its sole
expense, all personnel (including independent contractors) reasonably necessary
for the proper performance of its duties under this Agreement.
6. Scope of Masada's Limited Authority. Except as specifically set
forth in this Agreement, Masada shall have no right or authority to incur any
liability, debt or obligation of any kind, in the name of, on behalf of, or as
agent for Seller, or to make any commitment of any kind or in any manner in the
name of, on behalf of, or as agent for Seller.
7. Notices. Any notice or other communication hereunder shall be in
writing and shall be (i) delivered by hand, (ii) delivered by an overnight
courier service with guaranteed next day delivery, (iii) sent by telecopy, or
(iv) mailed by certified mail, postage prepaid, return receipt requested, and
addressed as follows:
IF TO MASADA AT: WITH COPY TO:
Masada Security, Inc. Xxxx & Xxxxxx
000 00xx Xxxxxx Xxxxx, Xxxxx 000 000 Xxxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx Attention: W. Xxx Xxxxxxx, Esq.
FACSIMILE: 0-000-000-0000 FACSIMILE: (000) 000-0000
IF TO SELLER AT: WITH COPY TO:
Xxxxxx Sender, Trustee Holland & Xxxx LLP
Katch, Sender & Xxxxxxxxx, P.C. 000 00xx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxx 00000-0000
Xxxxxx, Xxxxxxxx 00000 Attn: Xxxx Xxxxx Xxxxxxx, Esq.
FACSIMILE: (000) 000-0000 FACSIMILE: (000) 000-0000
or to such other address as may have been furnished to the party giving notice
by the party to whom notice is to be given. Notice shall be deemed given upon
the earlier of (i) three days after deposit in the U.S. Mail by certified mail,
or (ii) actual receipt thereof.
8. Term. This Agreement shall be effective as of the date hereof and
shall continue for a period of three (3) thirty (30) day periods unless sooner
terminated as provided in Paragraph 12 hereof (the "Term"), at which time this
Agreement shall terminate in its entirety (other than Paragraph 13 through 18,
inclusive, which shall survive any such termination).
9. Non-Interference. Masada, its agents, employees and affiliates
shall not in any manner, directly or indirectly, interfere with Seller's
business or take any other action that is designed, intended, or might
reasonably be anticipated to have the effect of adversely affecting Seller's
interest in any of the
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Alarm Accounts or the related contracts or discourage the Alarm Account
customers from maintaining the same business relationships with Seller after
the termination of this Agreement as were maintained with Seller prior to the
termination of this Agreement.
10. Insurance.
Masada warrants and represents to Seller that as of the date of
this Agreement it has the benefits of and shall maintain in full force and
effect during the Term of this Agreement (i) public liability insurance coverage
in an amount equal to at least $1,000,000 per occurrence; (ii) errors and
omissions insurance coverage in an amount equal to at least $1,000,000; and
(iii) one or more insurance policies covering the Facilities and including
workmen's compensation, public liability, property damage and fire and casualty
insurance and such insurance coverage shall remain in full force and effect
during the Term of this Agreement. In the event that during the term of this
Agreement any such insurance is canceled or notice of possible cancellation
thereof is given to Masada or its representatives, Masada shall promptly notify
Seller thereof.
11. Monitoring Services. Except as otherwise indicated herein, for
purposes of this Agreement, the term "Monitoring Services" shall mean and
include, without limitation: (i) at all times promptly and diligently performing
Seller's obligations under the contracts to provide monitoring services; and
(ii) responding promptly to all alarms and calls generated by equipment
installed or operated pursuant to any of the contracts; transmitting
notification of alarms promptly to the police, fire or other appropriate
authorities and/or person or persons whose name and telephone numbers are set
forth in instructions received by Masada from time to time (unless there is
reason to reasonably believe that an emergency condition does not exist);
responding to incoming calls from Alarm Account customers to cancel alarms;
recording updates to the monitoring databases, maintaining hard copies of
customer information; coordinating subscriber system testing and providing
opening and closing reports to the extent required.
12. Termination. This Agreement shall terminate upon the earliest to
occur of any of the following:
(a) Upon the mutual consent in writing of the parties;
(b) At the election of Seller, in its sole and absolute
discretion, upon five (5) days advance written notice to Masada; or
(c) Termination of this Agreement as provided in Paragraph 8
hereof.
13. Covenants.
(a) In the event this Agreement is terminated for any reason,
Masada shall cause all information relating to the Alarm Accounts to be
delivered forthwith to Seller, in electronically readable format on magnetic
tape.
(b) Masada shall permit Seller, or its duly designated
representative, upon reasonable notice, the right during normal business hours
to review Masada's records regarding the Alarm Accounts from time to time, for
the purpose of determining the status of the Alarm Account customers.
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(c) From time to time, upon the written request of Seller,
Masada shall deliver to Seller such additional information as it may reasonably
request to be informed of the status of the Alarm Account customers and the
adequacy of the services being provided by Masada hereunder.
(d) At least once each day, Masada shall record (back up) all
Alarm Account customer data and monitoring information pertaining to all
contracts and Alarm Accounts subject to the terms of this Agreement, in
electronically readable format on magnetic tape.
14. Attorneys Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
15. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, the construction thereof, or breach thereof, shall be settled
by the arbitration provisions as set forth in Article 10 of the Purchase
Agreement.
16. No Third-Party Beneficiary. This Agreement is made and entered
into by the parties for their sole purpose and benefit. There is no third-party
beneficiary to this Agreement, and nothing contained herein shall be deemed,
directly or indirectly, expressly or impliedly, to create any third-party
beneficiary to this Agreement.
17. Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, however, that, neither
this Agreement nor any of the rights, interests or obligations hereunder may be
assigned by either party without the prior written consent of the other party.
18. General Provisions.
(a) This Agreement may not be amended nor may any provision of
this Agreement be waived, unless such amendment or waiver is set forth in
writing and executed by the party to be bound thereby. This Agreement embodies
the entire understanding and agreement of the parties with regard to the subject
matter hereof, and supersedes any and all negotiations, understandings or
agreements with respect thereto; provided, however, that the Purchase Agreement
remains in full force and effect except as expressly modified by the terms of
this Agreement;
(b) No prior course of dealing between or among any persons
having any interest in this Agreement and no course of performance of this
Agreement shall be deemed effective to modify, amend or discharge any part of
this Agreement or any rights or obligations of any person under or by reason of
this Agreement;
(c) Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
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such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement;
(d) This Agreement was collectively prepared by each of the
parties hereto. No ambiguity with respect to any provision of this Agreement
shall be construed against any party, and no provision of this Agreement shall
be interpreted against any party, because such party or its legal representation
may have drafted such provision; and
(e) The laws of the State of Colorado, without regard to any
conflict of laws provisions thereof, shall govern all questions concerning the
construction, validity and interpretation of this Agreement and the performance
of the obligations imposed hereby.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
MASADA SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Its: Vice President
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/s/ Xxxxxx Sender
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XXXXXX SENDER, AS TRUSTEE for the
Bankruptcy Estates of (i) InterCap Funds
Joint Venture, (ii) Security Data Group of
California, Inc. and (iii) IMIF IV-C
Service Corp.
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