AGREEMENT
THIS AGREEMENT is entered this 10th day of June 1999, by and between NEW
VIEW TECHNOLOGIES, INC., a California Corporation ("Seller"), and U.S. CASH
EXCHANGE, INC., a California corporation ("Buyer").
Recitals:
WHEREAS, Seller has entered thirty-nine (39) equipment lease agreements
(the "Equipment Leases") with Ladco Leasing Company ("Ladco") covering five
hundred and twenty(520) merchant locations which include pieces of debit
equipment as described in the inventory attached hereto as Exhibit "A" (the
"Equipment") of which four hundred and twenty (420) pieces of the Equipment have
been installed at retail locations in several states under the terms and
provisions of individual agreements (the "Merchant Agreements") with the owners
of the businesses in which the Equipment has been installed; and
WHEREAS, Seller has entered written agreements (the "Agent Agreements")
with those individuals identified in Exhibit "B" attached hereto for the purpose
of establishing an agent network to market placement of the Equipment; and
WHEREAS, the applicable lease numbers and numbers of equipment associated
with each Equipment Lease are shown in the list attached hereto as Exhibit "C";
and
WHEREAS, the names and addresses of the merchants that are parties to the
Merchant Agreements with Seller are shown on the list attached hereto as Exhibit
"D"; and
WHEREAS, Seller owns the items of office furniture and equipment (the
"Office FF&E") shown on the list attached hereto as Exhibit "E"; and
WHEREAS, Seller has incurred certain debts and obligations (the "Accounts
Payable") in connection with the operation of its offices located in Modesto,
California, as shown in the list attached hereto as Exhibit "F" in the combined
sum of SEVENTY TWO THOUSAND FIVE HUNDRED THIRTY-THREE AND 23/100 DOLLARS
($72,533.23).
WHEREAS, Seller desires to assign to Buyer its entire right, title and
interest in, and delegate to Buyer its obligations of performance under, the
Equipment Leases, the Agent Agreements, and the Merchant Agreements under all of
the terms and provisions set forth in this Agreement; and
WHEREAS, Seller desires to convey to Buyer, and Buyer desires to acquire
from Seller, the Office FF&E under all of the terms and provisions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration exchanged between the parties, receipt
of which is hereby acknowledged, the parties hereto agree as follows:
Terms:
1. Effective Date of Assignment. The date upon which this Agreement shall
take full force and effect shall be April 23, 1999 (the "Effective Date").
2. Reimbursement Credit for Ladco Payment. Buyer shall reimburse Seller
for the lease payments made by Seller for the month of May, 1999, under the
Equipment Leases in the amount of TWENTY THOUSAND ONE HUNDRED SEVENTY SIX AND
70/100 ($20,176.70) less that portion of residual check for period April
23-April 30, 1999 (which amount will be earned by the Buyer). Amount due to
Buyer for the aforementioned seven-day period is equal to $4,719; thus Buyer
acknowledges that it owes to seller the difference or $15,457.63 for lease
payments advanced by the Seller on behalf of Buyer for May, 1999. This amount
($15,457.63) will be deducted from May's residual check to be received by Seller
week of June 14, 1999. The balance, after deduction of $15,457.63 due Seller
will be remitted immediately to Buyer. Note: as this agreement will not be
consummated and "signed off" by LADCO Leasing prior to June 11th, Buyer hereby
agrees to additionally reimburse Seller in cash an additional $17,892
immediately upon closing of this agreement (THIS AMOUNT REPRESENTS LADCO
AUTOMATIC LEASE DEBIT PAYMENTS THAT HAVE ALREADY BEEN CHARGED AGAINST SELLER'S
BANK ACCOUNT FOR JUNE 5TH AND JUNE 10TH PAYMENT DATES.) SELLER WILL NOT OFFSET
JUNE LEASE PAYMENTS MADE ON BEHALF OF BUYER AGAINST JUNE RESIDUALS. THIS AMOUNT
MUST BE RECEIVED BY SELLER UPON CLOSE-no exceptions.
3. Collection and Distribution of Merchant Agreement Payments. Buyer shall
collect all sums which hereafter comes due under the terms of the Merchant
Agreements, only after the transaction has been finalized. Until such time as
the merchants are notified of this assignment of Seller's interest, the parties
expect the payments are likely to name Seller as payee. All payments under the
Merchant Agreements naming Seller as payee shall as before continue to be
remitted to the Seller's address. Seller shall retain all such payments
attributable to amounts coming due prior to April 23, 1999 and through the date
of the close of the agreement. So long as Buyer has made provisions with LADCO
Leasing to have his bank account charged for the monthly lease/interest
debits/payments, and Seller has received proper reimbursement in full for all
lease payments advanced on behalf of Buyer, then and only then will BUYER be
entitled to direct receipt of the monthly residual check at his business
address.
4. Collection and Distribution of the Final Payment under the Equipment
Lease. Seller will be entitled to receive $15,000 of any final account
receivable amount outstanding from Ladco. It is estimated that approximately
TWENTY THOUSAND AND NO/100 DOLLARS ($20,000) is owed to Seller at the time of
this agreement.. Seller shall collect the final payment due from Ladco under the
Equipment Lease and shall remit the remaining balance (after deduction of
$15,000) to Buyer immediately upon receipt of such funds.
5. Assignment of Rights and Delegation of Duties under the Equipment
Leases, the Merchant Agreements and the Agent Agreements. Seller hereby assigns
to Buyer its entire right, title and interest in the Equipment Leases, the Agent
Agreements and the Merchant Agreements. By this assignment, Seller delegates to
Buyer all of Seller's duties and obligations and obligations of performance
under the Equipment Leases, the Agent Agreements and the Merchant Agreements.
6. Acceptance of Assignment and Delegation. Buyer hereby accepts the
assignment described in paragraph 5, above, and agrees to assume and perform all
duties and obligations that Seller has under the Equipment Leases, the Agent
Agreements and the Merchant Agreements as if Buyer had been an original party to
each of those contracts. Buyer further agrees to defend, indemnify and hold
Seller harmless from any liability for performance or non-performance of the
Equipment Leases, the Agent Agreements and the Merchant Agreements.
7. Conveyance of Office FF&E. Seller hereby conveys to Buyer its entire
right, title and interest in the Office FF&E. Seller makes no representation or
warranty respecting the physical condition of the Office FF&E.
8. Seller Retains Right to Patent and/or Copyright. Seller developed
certain software needed to integrate the intelligent technology of some of the
Equipment with the intelligent technologies of the transaction hardware used by
certain merchants. This software is being applied in the Equipment located at
approximately one-half (1/2) of the locations currently operating under Merchant
Agreements. Seller contends this software may be patentable and/or copyrightable
and further contends Seller's development of this software gives Seller certain
patent and/or copyright rights. Nothing in this Agreement is intended to assign
Seller's right to patent and/or copyright this certain software application it
has developed. However, whether or not Seller, or its successors in interest,
patent and/or copyright the software application it developed for the Equipment,
this assignment is intended to, and shall have the effect of, granting to Buyer,
and its successor's in interest, an conditional and permanent right to use that
software. The right to use, granted herein by Seller to Buyer is fully paid up.
9. Assumption of Accounts Payable. Buyer agrees to pay the Accounts
Payable, and further agrees to defend, indemnify and hold Seller harmless from
any liability in connection with non-payment of the Accounts Payable.
Notwithstanding the foregoing, Buyer shall not be obligated to pay or indemnify
Seller against any portion of the obligation to the company known as TASQ
located in Sacramento, California, which obligation is approximately TWENTY-TWO
THOUSAND AND NO/100 DOLLARS ($22,000.00) (the "TASQ Debt").
10. Seller's Representations and Warranties. Seller hereby represents and
warrants to Buyer as follows:
(a) Seller is a corporation duly organized and validly existing
under the laws of the state of California , is qualified to do business in the
state of California, and has the authority to own and convey the property
interests conveyed under the terms and provisions of this Agreement. This
Agreement has been duly authorized by Seller and is not, and at the time of the
Effective Date will not, violate any provisions of any agreement or judicial
order to which Seller is a party or to which Seller or the property interests
conveyed in this Agreement are subject.
(b) The Equipment Leases the Merchant Agreements and the Agent
Agreements are in full force and effect, and there are no other agreements,
written or oral, between Seller and the other parties to the Equipment Leases
the Merchant Agreements and/or the Agent Agreements respecting the subject of
those contracts. True and correct copies (and originals if available) of the
Equipment Leases the Merchant Agreements and the Agent Agreements will be
delivered to Buyer at execution of this Agreement.
(c) There are no commissions, finder's fees or other compensation
owing or which may become due to any broker or to any other person or entity
with respect to this Agreement or the transaction memorialized by this
Agreement.
(d) There is no litigation pending, or to Seller's knowledge,
threatened, against Seller or any basis therefore which arises out of the
Equipment Leases, the Merchant Agreements, the Agent Agreements, the Office
Equipment Leases or the ownership of the Office FF&E. Seller discloses, and
Buyer acknowledges that Ad Club is expecting payments (the "Ad Club Debt") by
the fifteenth of May in the amount of $1,737.30 to be delivered to AdClub
attorneys XXXXX, XXXXXX & XXXX and it is hereby acknowledged the Ad Club payment
shall be the Buyer's responsibility. Seller also discloses and Buyer
acknowledges the TASQ Debt as to which Seller and TASQ have reached an agreement
for payment on terms following demand and threat of litigation by TASQ. Buyer
shall not be obligated to pay any portion of the TASQ Debt.
(e) Seller has good and marketable title to the Office FF&E free of
security interests and encumbrances.
(f) There are no debts or obligations related to the operation of
Seller's offices located in Modesto, California, other than the Accounts
Payable, the obligations contained in the Equipment Leases, the Agent
Agreements, the Merchant Agreements, the Ad Club Debt and the TASQ Debt. Seller
agrees to defend, indemnify and hold Buyer, Buyer's property, the Merchant
Agreements, the Equipment Leases and the Office FF&E harmless from any and all
liability relating in any way to the debts and obligations of Seller, including
but not limited to the TASQ Debt, other than the debts and obligations arising
under the Accounts Payable, the Equipment Leases, the Agent Agreements, the
Merchant Agreements, and the Ad Club Debt
11. Buyer's Representations and Warranties. Buyer hereby represents and
warrants to Seller as follows:
(a) Buyer is a corporation duly organized and existing under the
laws of the state of California and is in good standing under the laws of the
state of California; this Agreement will be duly authorized, executed and
delivered by Buyer, and does not, and at the time of the Effective Date will
not, violate any provisions of any agreement or judicial order to which Buyer is
a party or to which it is subject.
(b) There is no litigation pending or, to Buyer's knowledge,
threatened, against Buyer or any basis therefore before any court or
administrative agency, which might result in any material adverse change in the
business or financial condition of the Buyer.
(c) There are no commissions, finder's fees or other compensation
owing or which may become due to any broker or to any other person or entity
with respect to this Agreement or the transaction memorialized by this
Agreement.
(d) To Buyer's knowledge, there are no additional outstanding debts
of Seller, other than the Accounts Payable, which were established or incurred
by Buyer, or its authorized agents.
(e) Although the Seller's former employees have already acknowledged
in writing to the Seller they are now Buyer's employees; Buyer agrees to
indemnify and hold Seller and Seller's property harmless from any claim that may
arise in connection with activities, conduct or other circumstances occurring in
said employees employment at the Modesto, California offices prior to the date
of this agreement and after the Effective Date of the agreement
(f) The Buyer agrees to open all of its own accounts with all
vendors and, furthermore, agrees not to use any vendor accounts in the name of
Seller or any affiliated company of Seller or its parent corporation, Xxxx
Communications, Inc.
(g) The Buyer agrees that the leased premises located at 0000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxx, will remain the entire responsibility of the Buyer
including the April and May rent plus all utility costs in arrears at present
and, furthermore, Buyer agrees to indemnify and hold Seller's property harmless
from any and all liability relating in any way to the obligations arising under
the lease of said premises, whether past or future obligations of performance.
12. Confidentiality. Each of the parties shall hold as confidential all
information concerning this Agreement; and neither party shall release any such
information to third parties (other than to that party's lawyer, accountant,
auditor, or law enforcement representatives) without the other party's prior
written consent, except pursuant to a court order requiring such release or as
otherwise may be required by law. The Buyer understands that the Seller is
obligated to disclose material information concerning its core business and if
Seller deems it necessary will issue a press release. However, the release will
be limited to only general information concerning this transaction and the
Seller will obtain prior written approval from the Buyer before releasing any
such information, which approval by the Buyer shall not be unreasonably
withheld.
13. Miscellaneous Provisions.
(a) This Agreement contains the entire Agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings.
(b) The section headings throughout this Agreement are for
convenience and reference only, and shall in no way be deemed to define, limit,
or add to the meaning of any provision of this Agreement.
(c) This Agreement and any provision hereof, may not be waived,
changed, modified, or discharged orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
(d) The failure of any party to insist in any one or more cases upon
the performance of any of the provisions, covenants, or conditions of this
Agreement or to exercise any option herein contained shall not be construed as a
waiver or relinquishment for the future of any such provisions, covenants, or
conditions the acceptance of performance of anything required by this Agreement
to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and no waiver by any party of one breach by another party shall be
construed as a waiver with respect to any other or subsequent breach.
(e) This Agreement and its application shall be governed by the laws
of the State of California. The parties hereto agree to venue and jurisdiction
in the federal and state courts located in Orange County, California. The
prevailing party in any action or proceeding shall be entitled to recover its
reasonable attorneys' fees and costs from the other party. If either party deems
that the other party has defaulted in any obligation(s) as stated and agreed
upon in this Agreement, then that party shall give the other party written
notice of the alleged default. Thereafter the party allegedly in default shall
have ten (10) business days to cure said default before the other party deems
that party in default and takes legal action to enforce this Agreement.
(f) This Agreement shall inure to and be binding upon the heirs,
executors, personal representatives, successors and assigns of each of the
parties to this Agreement.
(g) If any of the provisions of this Agreement shall be held
invalid, the remainder of this Agreement shall not be affected thereby.
IN WITNESS WHEREOF, this Agreement was entered on the first date above
written in Orange County, California.
SELLER:
NEW VIEW TECHNOLOGIES, INC.
a California corporation
By: __________________________
Xxxx Xxxxxxx, President
BUYER:
U.S. CASH EXCHANGE, INC.,
a California corporation
By: __________________________
Xxxxxxx X. XxXxx, President
EXHIBITS
EXHIBIT "A" THE EQUIPMENT LIST
EXHIBIT "B" AGENT LIST
EXHIBIT "C" LEASE NUMBERS
EXHIBIT "D" MERCHANT LIST
EXHIBIT "E" OFFICE FF&E LIST
EXHIBIT "F" ACCOUNTS PAYABLE LIST
EXHIBIT "G" ACCOUNTS RECEIVABLE LIST
EXHIBIT "H" AGREEMENT DATED JUNE 10, 1999 BETWEEN XXXX COMMUNICATIONS, INC.
(ITS SUBSIDIARIES, DIVISIONS AND AFFILIATES) AND XXXX XXXXX
EXHIBIT "A"
UNITS DESCRIPTION
100 NURIT TERMINALS
381 PROTEGE TERMINALS
381 P-250 PRINTERS
