Exhibit 10.6
TELECOMMUNICATIONS SERVICES SHARING AGREEMENT
DATED AS OF ________, 1996
BETWEEN
MONEYGRAM PAYMENT SYSTEMS, INC.
AND
FIRST DATA CORPORATION
TABLE OF CONTENTS
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SECTION Page
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ARTICLE 1
Definitions.......................................................... 1
ARTICLE 2................................................................. 5
SERVICES.................................................................. 5
Section 2.1. Telecommunications Services............................ 5
Section 2.2. No Guarantee or Provision of Services.................. 5
Section 2.3. Related Services....................................... 6
ARTICLE 3
GENERAL AGREEMENTS OF THE PARTIES.................................... 6
Section 3.1. Terms of Telecommunications Agreements................. 6
Section 3.2. Termination of a Telecommunications
Agreement............................................. 6
Section 3.3. Prohibition on Resale.................................. 6
Section 3.4. Third Party Consents................................... 6
Section 3.5. Covenants.............................................. 7
Section 3.6. Service Orders......................................... 7
ARTICLE 4
BILLING AND PAYMENTS................................................. 7
Section 4.1. Billing................................................ 7
Section 4.2. Payments............................................... 7
Section 4.3. Other Charges.......................................... 8
ARTICLE 5
CONFIDENTIALITY...................................................... 8
Section 5.1. General Confidentiality Obligations.................... 8
Section 5.2. Confidentiality Obligations of MG...................... 8
ARTICLE 6
TERM AND TERMINATION................................................. 8
Section 6.1. Term................................................... 8
Section 6.2. Termination by FDC..................................... 8
Section 6.3. Termination by MG...................................... 9
Section 6.4. Partial Termination of Agreement by FDC................ 10
Section 6.5. Effect of Termination.................................. 10
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Section Page
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ARTICLE 7
INDEMNIFICATION..................................................... 11
Section 7.1. Indemnification by MG................................. 11
Section 7.2. Third-Party Beneficiaries............................. 11
Section 7.3. No Special Damages.................................... 11
ARTICLE 8
DISPUTE RESOLUTION.................................................. 11
Section 8.1. Dispute Resolution.................................... 11
ARTICLE 9
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES........................ 12
ARTICLE 10
MISCELLANEOUS....................................................... 12
Section 10.1. Expenses............................................. 12
Section 10.2. Relationship of Parties.............................. 12
Section 10.3. Entire Agreement..................................... 12
Section 10.4. Assignment........................................... 13
Section 10.5. Notices.............................................. 13
Section 10.6. Counterparts......................................... 14
Section 10.7. Governing Law........................................ 14
Section 10.8. Waiver............................................... 14
Section 10.9. Severability......................................... 15
Section 10.10. Construction Rules.................................. 15
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TELECOMMUNICATIONS SERVICES SHARING AGREEMENT
THIS TELECOMMUNICATIONS SERVICES SHARING AGREEMENT (this "Agreement")
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dated as of __________, 1996 between MoneyGram Payment Systems, Inc., a Delaware
corporation ("MG"), and First Data Corporation, a Delaware corporation ("FDC").
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W I T N E S S E T H:
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WHEREAS, MG, FDC and Integrated Payment Systems Inc., a Delaware
corporation and a wholly-owned subsidiary of FDC ("IPS"), have entered into a
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Contribution Agreement dated as of __________, 1996 (the "Contribution
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Agreement"), pursuant to which IPS and certain of its Affiliates (as defined
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below) contributed to MG certain assets of the Business (as defined below); and
WHEREAS, MG, IPS and First Data Technologies, Inc., a Delaware
Corporation and a wholly owned subsidiary of FDC ("FDT"), have entered into an
Operations Agreement dated as of the date hereof (the "Operations Agreement"),
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pursuant to which FDT, IPS and certain of their Affiliates provide certain
services relating to the Business to MG; and
WHEREAS, MG and FDC desire to enter into this Agreement pursuant to
which MG agrees to use and FDC agrees to provide access to telecommunications
services provided to FDC pursuant to the Telecommunications Agreements (as
defined below);
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, MG and FDC agree as follows:
ARTICLE 1
DEFINITIONS
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In this Agreement, unless the context shall otherwise require, the
capitalized terms used herein shall have the respective meanings specified or
referred to in this Article 1. Each agreement referred to in this Agreement
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shall mean such agreement as amended, supplemented and modified from time to
time to the extent permitted by the applicable provisions thereof and hereof.
Each definition in this Agreement includes the singular
and the plural, and reference to the neuter gender includes the masculine and
feminine where appropriate. References to any statute or regulations means such
statute or regulations as amended at the time and include any successor
legislation or regulations. The headings to the Articles and Sections hereof
and the table of contents herein are for convenience of reference and shall not
affect the meaning or interpretation of this Agreement. Except as otherwise
stated, reference to Articles, Sections, and Exhibits mean the Articles,
Sections and Exhibits of this Agreement. The Exhibits are hereby incorporated
by reference into and shall be deemed a part of this Agreement. Unless the
context clearly indicates otherwise, the word "including" means "including but
not limited to".
"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls, is controlled by or is under common control with such
Person through the ownership or control, directly or indirectly, of more than
50% of all the voting power of the shares or other interests entitled to vote
for the election of directors or other governing authority; provided, however,
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that FDC and its Affiliates shall not be deemed Affiliates of MG and its
Affiliates and MG shall not be deemed Affiliates of FDC and its Affiliates.
"AT&T" means American Telephone and Telegraph Company.
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"AT&T Agreement" means the proposed agreement between AT&T and FDC, a
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copy of which shall be attached hereto as Exhibit A if and when completed.
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"Bankruptcy" means, with respect to any Party, the happening of any
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one or more of the following events: (a) a Party: (i) makes an assignment for
the benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii)
is adjudged a bankrupt or insolvent, or there has been entered against such
Party an order for relief, in any bankruptcy or insolvency proceeding; (iv)
files a petition or answer seeking in respect of such Party any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation; (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against such Party in any proceeding of a nature described above; (vi)
seeks, consents or acquiesces in the appointment of a trustee, receiver,
conservator or liquidator of such Party or of all or any substantial part of
such Party's properties; or (vii) in respect of clauses (i), (ii), (iv), (v) or
(vi) above, such Party takes any corporate action to authorize any action
contemplated by any of such clauses; or (b) 90 days
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after the commencement of any proceeding against any Party seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law or regulation, if such proceeding has
not been dismissed, or within 60 days after the appointment without such Party's
consent or acquiescence of a trustee, receiver or liquidator of the Party or of
all or any substantial part of such Party's properties, if such appointment is
not vacated or stayed, or within 60 days after the expiration of any such stay,
if such appointment is not vacated.
"Charges" means all direct charges, fees, tariffs and Taxes and all
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indirect charges, fees, tariffs and Taxes assessed by a Telecommunications
Services Provider pursuant to a Telecommunications Services Agreement.
"Consequential Damages" means any liability, Loss, Expense or damage,
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whether in an action arising out of breach of warranty, breach of contract,
delay, negligence, theory of tort, strict liability or other legal equitable
theory, for indirect, special, reliance, incidental, punitive or consequential
damages or commercial loss, injury or damage, including loss of revenues,
profits or use of capital or production.
"Costs" means all direct costs, expenses and charges plus all indirect
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costs, expenses and charges, including reasonable allocations of overhead,
incurred by a Party in performing its obligations under this Agreement.
"Dispute" means any and all disputes, controversies and claims
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between the Parties arising from or in connection with this Agreement or the
relationship of the Parties under this Agreement whether based on contract,
tort, common law, equity, statute, regulation, order or otherwise.
"Expenses" means any and all reasonable expenses incurred in
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connection with investigating, defending or asserting any claim, action, suit or
proceeding incident to any matter indemnified against hereunder (including court
filing fees, court costs, witness fees and reasonable fees and disbursements of
legal counsel, investigators, expert witnesses, accountants and other
professionals).
"Governmental Body" means any foreign, federal, state, local or other
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governmental authority or regulatory body.
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"Losses" means any and all losses, obligations, liabilities,
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settlement payments, awards, judgments, fines, penalties, damages, deficiencies
or other charges.
"MCI" means MCI Telecommunications Corporation.
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"MCI Agreement" means the proposed agreement between MCI and FDC, a
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copy of which shall be attached hereto as Exhibit B if and when completed.
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"Party" means FDC or MG and its Affiliates as the context requires.
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"Person" means any individual, corporation, partnership, limited
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liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"Solvent", when used with respect to any Person, means that at the
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time of determination: (i) the fair market value of its assets is in excess of
the total amount of its liabilities (including contingent liabilities determined
in accordance with generally accepted accounting principles); (ii) the present
fair saleable value of its assets is greater than its probable liability on its
existing debts (including contingent liabilities) as such debts become absolute
and matured; (iii) it is then able, and is reasonably expected to be able, to
pay its debts (including contingent debts and other commitments) as they mature;
and (iv) it has capital sufficient to carry on its business as conducted and as
proposed to be conducted.
"Sprint" means Sprint Communications Company L.P., a Delaware limited
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partnership.
"Sprint Agreement" means the Custom Network Services Agreement between
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Sprint and FDC dated as of February 26, 1996 as attached hereto as Exhibit C.
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"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
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federal, state, local or foreign income, gross receipts, windfall profits,
severance, property, production, sales, use, license, excise, franchise,
employment, payroll, withholding, alternative or add-on minimum, ad valorem,
transfer or excise tax, or any other tax, custom, duty, govern mental fee or
other like assessment or charge of any kind whatsoever, together with any
interest or penalty, imposed by any Governmental Body.
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"Telecommunications Agreements" means the AT&T Agreement, the MCI
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Agreement and the Sprint Agreement and any other agreement listed in Schedule
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1.1A, as such schedule may be modified from time to time during the Term
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pursuant to the written agreement of the Parties.
"Telecommunications Services" means services provided pursuant to the
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Telecommunications Agreements that are used in connection with the Business.
"Telecommunications Services Providers" means AT&T, MCI and Sprint and
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any other provider listed in Schedule 1.1B, as such schedule may be modified
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from time to time during the Term pursuant to the written agreement of the
Parties.
"Term" means the period commencing on the date hereof and ending on
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December 31, 1998.
"Travel Related Services" means American Express Travel Related
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Services Company, Inc., a New York corporation.
ARTICLE 2
SERVICES
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SECTION 2.1. TELECOMMUNICATIONS SERVICES. During the Term, MG and
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its Affiliates agree to be bound by the terms of the Telecommunications
Agreements as if MG and its Affiliates were Affiliates of FDC and to exclusively
use the Telecommunications Services offered thereunder for all of the person-to-
person telephone calls (both incoming and outgoing where either MG or its
Affiliates is the customer of record) used in each of their businesses. MG may
choose, from time to time, under which Telecommunications Agreement to receive
Telecommunications Services by written notice to FDC. During the term, FDC
shall cooperate and use reasonable efforts to facilitate the provision of the
Telecommunications Services by the Telecommunications Services Providers to MG
and its Affiliates at the respective rates in effect from time to time, pursuant
to and in accordance with the terms of the respective Telecommunications
Agreements as if MG and its Affiliates were Affiliates of FDC.
SECTION 2.2. NO GUARANTEE OR PROVISION OF SERVICES. It is understood
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by the Parties that FDC is not providing any guarantee as to the level or
quality of services provided under any Telecommunications Agreement and is not
responsible for the provision of any such services to MG or any Affiliate of MG.
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SECTION 2.3. RELATED SERVICES. MG and its Affiliates shall be
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entitled to a portion of any services other than Telecommunications Services
provided pursuant to any Telecommunications Services Agreement, including
training of employees, in accordance with MG's and its Affiliates' pro rata
portion of the total aggregate Telecommunications Services used by FDC and its
Affiliates and MG and its Affiliates.
ARTICLE 3
GENERAL AGREEMENTS OF THE PARTIES
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SECTION 3.1. TERMS OF TELECOMMUNICATIONS AGREEMENTS. MG shall, and
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shall cause its Affiliates to, comply with and abide by all terms of each of the
Telecommunications Agreements, including any terms regarding levels of service
and form of payment.
SECTION 3.2. TERMINATION OF A TELECOMMUNICATIONS AGREEMENT. In the
event that one or more of the Telecommunications Agreements is terminated for
whatever reason during the Term, any rights that MG or any Affiliate of MG
received pursuant to this Agreement under such Telecommunications Agreement also
shall be terminated, and any and all obligations of FDC under this Agreement
with respect to each terminated Telecommunications Agreement also shall
terminate without liability of FDC to MG or any Affiliate of MG; provided,
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however, that FDC shall provide MG with prompt notice of any such termination
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and provided further that if FDC enters into another agreement with a
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telecommunications services provider to provide substantially the same services
as those provided under the terminated Telecommunications Agreement (a
"Replacement Agreement"), FDC will cooperate and use reasonable efforts to
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facilitate the receipt by MG and its Affiliates of services pursuant to the
Replacement Agreement for the remainder of the Term.
SECTION 3.3. PROHIBITION ON RESALE. MG and each of its Affiliates
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agrees not to resell or share any services provided under any of the
Telecommunications Agreements at any time during the Term without the prior
written consent of FDC.
SECTION 3.4. THIRD PARTY CONSENTS. Each Party will act diligently and
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reasonably to secure the consent, approval or waiver from any Telecommunications
Services Provider necessary to perform its obligations hereunder; provided that
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neither Party
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shall have any obligation to offer or pay any consideration in order to obtain
any such consents or approvals.
SECTION 3.5. COVENANTS. (a) MG's and each of its Affiliates' usage of
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each of the services available under each of the Telecommunications Agreements
shall comply with and be governed by the specifications and provisions set forth
in the corresponding Telecommunications Agreement.
(b) MG agrees to cause its Affiliates to comply with all covenants and
obligations of MG set forth herein.
SECTION 3.6. SERVICE ORDERS. MG agrees to provide FDC with a copy of
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any order for any Telecommunications Services or any other services pursuant to
the Telecommunications Agreement within 10 days of such order.
ARTICLE 4
BILLING AND PAYMENTS
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SECTION 4.1. BILLING. (a) Billing of Telecommunications Services to
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MG and its Affiliates shall be in accordance with the terms of each of the
Telecommunications Agreements; provided, however, that the Parties shall use
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their reasonable best efforts to cause each Telecommunications Services Provider
to xxxx MG and its Affiliates directly for the Telecommunications Services, or
any other services provided under the relevant Telecommunications Agreement,
furnished to MG or its Affiliates by such provider.
SECTION 4.2. PAYMENTS. (a) MG agrees to pay promptly all bills
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presented to it or its Affiliates by the Telecommunications Services Providers
pursuant to the Telecommunications Agreements in the manner and time period
specified in such agreements.
(b) In the event that any Telecommunications Services Provider does
not xxxx MG or its Affiliates directly for the Telecommunications Services, or
any other services provided under the relevant Telecommunications Agreement,
furnished to MG or its Affiliates by such provider, FDC shall pay for such
services on MG's or its Affiliates behalf and MG agrees to repay FDC promptly,
but in no event later than 10 days after written notice of, any monies so paid
by FDC on behalf of MG or its Affiliates.
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SECTION 4.3. OTHER CHARGES. During the Term, MG shall be responsible
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for and pay its and its Affiliates' pro rata portion of any ordinary and
customary charges incurred by FDC or MG and its Affiliates in connection with
ordinary and customary Telecommunications Services provided under any of the
Telecommunications Agreements. Each Party shall be solely responsible for any
expenses and charges that relate solely to services provided under a
Telecommunications Agreement solely for or at the request of the other Party.
ARTICLE 5
CONFIDENTIALITY
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SECTION 5.1. GENERAL CONFIDENTIALITY OBLIGATIONS. Each Party hereby
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agrees to be bound by the provisions of Article 7 of the Operations Agreement,
the provisions of which are hereby incorporated by reference, with respect to
the Confidential Information (as defined in the Operations Agreement) of the
other Party obtained in connection with the performance of this Agreement.
SECTION 5.2. CONFIDENTIALITY OBLIGATIONS OF MG. In addition to any
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confidentiality obligation set forth in Section 5.1, during the Term, MG shall,
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and shall cause its Affiliates to, abide by all provisions of each of the
Telecommunications Agreements relating to maintaining the confidentiality of
information provided in connection therewith.
ARTICLE 6
TERM AND TERMINATION
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SECTION 6.1. TERM. This Agreement shall commence on the date hereof
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and, unless earlier terminated as provided in this Article 6, shall continue
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until December 31, 1998.
SECTION 6.2. TERMINATION BY FDC. This Agreement shall terminate upon
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the occurrence of any of the following events and (i) in the case of clause (a),
(c) or (d) below, at the option of FDC following 30 days prior written notice to
MG and (ii) in the case of clause (b) below, immediately and without prior
written notice or any other action by FDC:
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(a) If MG or any Affiliate of MG shall fail to perform, or repudiates
or seeks to avoid or invalidate, any material obligation to be performed by it
under this Agreement or any Telecommunications Agreement, provided that (i) in
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the case of any breach which is capable of being cured, or otherwise
discontinued, MG has received notice of such breach from FDC or from any
Telecommunications Services Provider demanding such breach be cured and MG has
not cured or discontinued such breach within 30 days of receipt of such notice;
and (ii) the Parties have exhausted the dispute resolution proceedings provided
for in Article 8; provided, however, that if the continuation of services
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pursuant to any Telecommunications Agreement to MG or any Affiliate of MG during
the dispute resolution proceedings will, in the opinion of FDC, jeopardize the
continued provision of services to FDC pursuant to any Telecommunications
Agreement, FDC may terminate the rights of MG and its Affiliates hereunder;
(b) In the event of Bankruptcy of MG;
(c) If a Governmental Body enjoins the performance by a Party of any
of its material obligations under this Agreement; or
(d) If FDC reasonably determines that MG is not Solvent.
SECTION 6.3. TERMINATION BY MG. This Agreement shall terminate (a) at
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the option of MG at any time following 60 days prior written notice to FDC or
(b) upon the occurrence of any of the following events and (i) in the case of
clause (A), (C) or (D) below, at the option of MG following 30 days prior
written notice to FDC and (ii) in the case of clause (B) below, immediately and
without prior written notice or any other action by MG:
(A) If FDC or any Affiliate of FDC shall fail to perform, or
repudiates or seeks to avoid or invalidate, any material obligation to be
performed by it under this Agreement or any Telecommunications Agreement,
provided that (i) in the case of any breach which is capable of being cured, or
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otherwise discontinued, FDC has received notice of such breach from MG or from
any Telecommunications Services Provider demanding such breach be cured and FDC
has not cured or discontinued such breach within 30 days of receipt of such
notice; and (ii) the Parties have exhausted the dispute resolution proceedings
provided for in Article 8;
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(B) In the event of Bankruptcy of FDC;
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(C) If a Governmental Body enjoins the performance by a Party of any
of its material obligations under this Agreement; or
(D) If MG reasonably determines that FDC is not Solvent.
SECTION 6.4. PARTIAL TERMINATION OF AGREEMENT BY FDC. If MG or any
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Affiliate of MG breaches any of its material obligations or covenants in any
Telecommunications Agreement (a "Breached Telecommunications Agreement"), as
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determined pursuant to the provisions of the Breached Telecommunications
Agreement, which breach is not substantially cured within 30 days after notice
specifying the breach is given by the Telecommunications Services Provider under
the Breached Telecommunications Agreement or by FDC, then upon written notice to
MG, FDC may terminate this Agreement as it relates to the Breached
Telecommunications Agreement. Nothing in this Section 6.4 shall limit FDC's
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termination rights pursuant to Section 6.2.
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SECTION 6.5. EFFECT OF TERMINATION. Upon the termination of this
----------------------
Agreement, each Party shall have no further obligation to perform any obligation
hereunder to the other Party and all outstanding unpaid amounts due and owing by
MG to FDC or any Telecommunications Services Provider under the terms of this
Agreement or any Telecommunications Agreement shall become immediately due and
payable, provided, however, that the termination of this Agreement shall not
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affect the following:
(a) The obligation of MG to pay for any services rendered or any
other obligation or liability owing or which becomes owing under this Agreement
or any Telecommunications Agreement whether the obligations arise prior to or
after the date of termination;
(b) The provisions of Article 7 or any other indemnification
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obligations of any Party;
(c) The provisions of Article 5 or any other confidentiality
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obligations of any Party; and
(e) The provisions of Article 8.
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In addition, upon the termination of this Agreement, each Party shall
return to the other Party all copies of such Party's Confidential Information
(as defined in the Operations Agreement) obtained in connection with the
performance of this
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Agreement, and shall erase all versions of such Confidential Information from
its data files.
ARTICLE 7
INDEMNIFICATION
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SECTION 7.1. INDEMNIFICATION BY MG. Subject to the provisions of this
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Article 7, MG shall indemnify and hold harmless FDC, each of its Affiliates and
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each of their respective directors, officers, employees and agents (collectively
the "Indemnified Parties"), from and against any and all Losses, Costs and
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Expenses based on, arising out of, pertaining to or in connection with
circumstances in which (i) any act or omission of MG or any Affiliate of MG
gives rise to a breach of any Telecommunications Agreement; or (ii) MG or any
Affiliate of MG breaches any of its covenants or obligations in this Agreement.
This indemnity shall be applicable whether or not such Loss, Expense or Cost or
the facts or transactions giving rise to such Loss, Expense or Cost arose prior
to, on or subsequent to the date hereof.
SECTION 7.2. THIRD-PARTY BENEFICIARIES. The provisions of this
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Article 7 are for the benefit of, and are intended to create, third-party
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beneficiary rights in favor of each of the Indemnified Parties that is not a
Party.
SECTION 7.3. NO SPECIAL DAMAGES. IN NO EVENT SHALL FDC, MG OR ANY OF
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THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES UNDER THIS
AGREEMENT, WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF
WHETHER FDC, MG OR ANY OF THEIR RESPECTIVE AFFILIATES HAS BEEN ADVISED, OR COULD
HAVE FORESEEN, OF THE POSSIBILITY SUCH DAMAGES. THE FORE GOING REPRESENTS AN
EXPRESS ALLOCATION OF RISK BETWEEN THE PARTIES.
ARTICLE 8
DISPUTE RESOLUTION
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SECTION 8.1. DISPUTE RESOLUTION. The Parties hereby agree to be bound
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by and to resolve any Dispute in accordance with Article 11 of the Operations
Agreement, the provisions of which are hereby incorporated by reference.
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ARTICLE 9
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
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IT IS UNDERSTOOD AND AGREED THAT FDC DOES NOT REPRESENT, WARRANT OR
GUARANTEE IN ANY WAY THAT THE PERFORMANCE OF SERVICES BY THE TELECOMMUNICATIONS
SERVICES PROVIDERS WILL BE UNINTERRUPTED OR ERROR FREE. NO PARTY HERETO MAKES
ANY, AND EACH PARTY HERETO HEREBY EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS
AGREEMENT, INCLUDING AS TO ANY SERVICES, HARDWARE, SOFTWARE, EQUIPMENT OR
MATERIALS PROVIDED OR USED BY OR ON BEHALF OF ANY PARTY UNDER THIS AGREEMENT.
EACH PARTY HERETO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 10
MISCELLANEOUS
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SECTION 10.1. EXPENSES. Except as otherwise provided herein, each of
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the Parties shall pay all Costs incurred by it or on its behalf in connection
with the negotiation and preparation of this Agreement and its performance and
compliance with all its obligations hereunder, including fees and expenses of
its own counsel.
SECTION 10.2. RELATIONSHIP OF PARTIES. (a) Except as set forth in
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this Agreement, FDC does not and shall not undertake by this Agreement or
otherwise to perform any obligation for or on behalf of MG or any Affiliate of
MG, whether regulatory or contractual, or assume any responsibility for MG's or
its Affiliates' businesses or operations.
(b) Nothing in this Agreement shall be deemed by the Parties, or by
any third Person, to create a partnership, joint venture or similar relationship
between the Parties and, except as otherwise expressly provided herein, no Party
shall be deemed to be the agent of any other Party. No Party has, and shall not
hold itself out as having, any authority to enter into any contract or create
any obligation or liability on behalf of, in the name of, or binding upon any
other Party.
SECTION 10.3. ENTIRE AGREEMENT. This Agreement, including the
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Exhibits and Schedules hereto, and Article 7 and Article 11 of the Operations
Agreement constitute the entire
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agreement among the Parties with regard to the subject matter hereof, and
supersede all other prior agreements, understandings or discussions among the
Parties concerning such subject matter. Except as provided herein, this
Agreement may not be amended or modified except in writing signed by an
authorized representative of each Party.
SECTION 10.4. ASSIGNMENT. Except as otherwise provided herein, the
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rights and obligations of both FDC and MG under this Agreement are personal and
not assignable, either voluntarily or by operation of law, without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. Except as provided in Section 7.2, nothing in this Agreement is
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intended to or shall be construed to confer upon any Person other than the
Parties and their respective successors and permitted assigns, any right, remedy
or claim under or by reason of this Agreement.
SECTION 10.5. NOTICES. All notices which any Party may be required
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or desire to give to any other Party shall be in writing and shall be given by
personal service, telecopy, registered mail or certified mail (or its
equivalent) or overnight courier to the other Party at its respective address or
telecopy telephone number set forth below. Mailed notices and notices by
overnight courier shall be deemed to be given upon actual receipt by the Party
to be notified. Notice delivered by telecopy shall be confirmed in writing by
overnight courier and shall be deemed to be given upon actual receipt by the
Party to be notified.
In the case of FDC:
First Data Corporation
0000 X. 000xx Xxx. NP 30
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
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In the case of MG:
MoneyGram Payment Systems, Inc.
0000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
With a copy to:
MoneyGram Payment Systems, Inc.
0000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
A Party may from time to time change its address for notification purposes by
giving the other Party prior written notice of the new address and the date upon
which it shall become effective.
SECTION 10.6. COUNTERPARTS. This Agreement may be executed in
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several counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 10.7. GOVERNING LAW. Except as otherwise specified in
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Article 8, this Agreement shall be governed by and construed in accordance with
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the internal laws (as opposed to the conflict of laws provisions) of the State
of New York.
SECTION 10.8. WAIVER. Any term or provision of this Agreement may be
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waived, or the time for its performance may be extended, by the Party entitled
to the benefit thereof. Any such waiver shall be validly and sufficiently
authorized for the purposes of this Agreement if, as to any Party, it is
authorized in writing by an authorized representative of such Party. The
failure of any Party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
any Party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach. Except as specifically provided otherwise, all remedies
provided for in this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available to any Party at law, in equity or
otherwise.
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SECTION 10.9. SEVERABILITY. Wherever possible, each provision hereof
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shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or
unenforceable provision or provisions or any other provisions hereof, unless
such a construction would be unreasonable.
SECTION 10.10. CONSTRUCTION RULES. The Parties hereto represent that
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in the negotiation and drafting of this Agreement they have been represented by
and relied upon the advice of counsel of their choice. The Parties affirm that
their counsel have had a substantial role in the drafting and negotiation of
this Agreement and, therefore, the rule of construction to the effect that any
ambiguities are to be resolved against the drafting Person shall not be employed
in the interpretation of this Agreement, including any Exhibit or Schedule.
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IN WITNESS WHEREOF, each Party has caused this Agreement to be signed
and delivered by its duly authorized officer as of the date first written above.
MONEYGRAM PAYMENT SYSTEMS, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
FIRST DATA CORPORATION
By: _______________________________
Name: _____________________________
Title: ____________________________
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