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ACQUIRED ACCOUNTS MONITORING AGREEMENT
THIS MONITORING AGREEMENT, dated as of March 28th, 1996, is entered
into between Masada Security, Inc., a Delaware corporation ("Masada"), and
Xxxxxx Sender, as Trustee ("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 is purchasing certain security alarm accounts
described in Exhibit A attached hereto (the "Alarm Accounts") from Seller
pursuant to that certain Asset Purchase and Sale Agreement, dated on or about
March 27, 1996 (the "Purchase Agreement"), and will own the rights under
customer contracts (the "Contracts") pursuant to which it will furnish certain
services to subscribers related to the Alarm Accounts (the "Account
Subscribers").
B. Seller is in the business of owning and operating
alarm accounts and is experienced in monitoring and servicing security alarm
systems and billing and collecting monitoring and servicing fees.
C. Masada desires that Seller furnish certain monitoring
services for Masada 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 Seller. Masada hereby
appoints and authorizes Seller, and Seller 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. During the Term (as defined in
Paragraph 8) of this Agreement, Seller shall be entitled to charge Masada $4.75
for each Alarm Account for which Seller provides the Monitoring Services. Such
fees shall be paid in arrears and shall be prorated for any period which is
less than thirty (30) days during which such Monitoring Services are provided.
Notwithstanding anything herein to the contrary, the minimum fee for which
Masada shall pay to Seller hereunder shall be $12.00 per Alarm Account (other
than Alarm Accounts with Florida customers for which Seller provides Monitoring
Services at its Jacksonville central station) for which Seller provides
Monitoring Services at any time during the Term of this Agreement.
3. Maintenance of Facilities. Seller shall use
all reasonable and necessary efforts, consistent with its past custom and
practice, to (a) use and maintain its present 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
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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 Masada on Seller under this
Agreement, from and after the closing under the Purchase Agreement, Masada
shall continue to own the Contracts and the Alarm Accounts, including the
proceeds thereof.
5. Relationship of Masada and Seller. The
relationship of Masada and Seller is one of principal and independent
contractor, respectively; neither Masada nor its personnel, agents, employees,
officers or directors shall be deemed employees or agents of Seller and neither
Seller nor its personnel, agents, employees, officers or directors shall be
deemed employees or agents of Masada. Seller 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 Seller's Limited Authority. Except
as specifically set forth in this Agreement, Seller 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 Masada, or to make any commitment of any kind
or in any manner in the name of, on behalf of, or as agent for Masada.
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 ninety (90) days unless:
(i) Masada elects to renew this Agreement for additional thirty (30) day
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periods by giving Seller five (5) days advance written notice prior to
termination or (ii) sooner terminated as provided in Paragraph 12 hereof (the
"Term" herein), 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. Seller, its agents,
employees and affiliates shall not in any manner, directly or indirectly,
interfere with Masada's business or take any other action that is designed,
intended, or might reasonably be anticipated to have the effect of adversely
affecting Masada's interest in any of the Alarm Accounts or the Contracts or
discourage Account Subscribers from maintaining the same business relationships
with Masada after the termination of this Agreement as were maintained with
Masada prior to the termination of this Agreement.
10. Insurance. Seller warrants and represents to
Masada 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)
"occurrence basis" public liability insurance coverage in an amount equal to at
least $1,000,000 per occurrence; (ii) "occurrence basis" 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 Seller or its representatives, Seller shall promptly notify Masada
thereof.
11. Monitoring Services. During the Term, Seller
shall be responsible for all costs and expenses of operating the Facilities.
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 Masada'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 Seller from time to
time (unless there is reason to reasonably believe that an emergency condition
does not exist); responding to incoming calls from Account Subscribers 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.
The parties recognize that the Alarm Accounts listed on Exhibit B
attached hereto are currently monitored by third parties on behalf of Seller
(the "Third Party Accounts"). All of Seller's obligations hereunder with
respect to the Alarm Accounts shall extend to the Third Party Accounts and
Seller shall continue to be solely responsible for all costs and charges
incurred as a result of third parties providing monitoring or other services
with respect to the Third Party Accounts. Seller represents and warrants that
no other person or entity has an ownership interest in the Third Party Accounts
and that no other person or entity has a right to continue monitoring the Third
Party Accounts or other right that could interfere with Masada's ability to own
and monitor the Third Party Accounts.
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;
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(b) At the election of Masada,
in its sole and absolute discretion, upon five (5) days advance written notice
to Seller; 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, Seller shall cause all information relating to
the Alarm Accounts to be delivered forthwith to Masada, in electronically
readable format on magnetic tape.
(b) Seller shall permit Masada,
or its duly designated representatives, to be present at the Facilities at all
times and to monitor Seller's transfer and delivery to Masada of all
information related to the Alarm Accounts and Seller's efforts to facilitate
and assist with the switching of the communications links for the Alarm
Accounts to Masada's central monitoring station.
(c) From time to time, upon the
written request of Masada, Seller shall deliver to Masada such additional
information as it may reasonably request to be informed of the status of the
Account Subscribers and the adequacy of the services being provided by Seller
hereunder.
(d) At least once each day,
Seller shall record (back up) all Account Subscriber 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.
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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 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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