AGREEMENT
This Agreement ("Agreement") is made and entered into this 15th day of
August, 1989, by and between UNIVERSAL FUNDING CORP., a Missouri corporation
("UFC"), its stockholders, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxx
("Stockholders") and UNIVERSAL MONEY CENTERS, INC., a Missouri corporation
("UMC").
In consideration of the mutual promises, undertakings and understandings
of the parties hereto, it is hereby agreed as follows:
I. SERVICES.
A. SERVICES OF UMC. UMC, or its designees, shall provide the services
described below, within the metropolitan Kansas City area (the "Market
Area"), for sixty (60) NCR Model 1773, or other suitable, automatic
teller machines (the "Equipment").
1. Switching. UMC, or its designee, shall provide on a
7-day-a-week/24-hour-a-day basis, computer switching of the
Equipment through communication circuits to permit the withdrawal
of funds and balance inquiries, permit access to the Equipment by
all cards of participating financial institutions, provide access
to all interconnecting switches (i.e. Bankmate, CIRRUS, Discover
and American Express) and reconcile transactions occurring on or
through the Equipment.
2. On-Call Remedial Maintenance. UMC, or its designee, shall provide
on a 7-day-a-week/24-hour-a-day basis, on-call remedial
maintenance services including, by means of example but not
limitation, repair or replacement of failed parts, replacing ink
ribbons and receipt paper, cleaning money and card reader jams
and rebooting software.
3. Preventive Maintenance. UMC, or its designee, shall provide
preventive maintenance during the hours of 9:00 AM to 5:00
Pacific Mutual, Local Time, Monday through Friday, excluding
holidays, to keep the Equipment in good operating condition.
4. Parts. UMC's services shall include replacement of all
unserviceable parts.
5. Communications. UMC, or its designee, shall provide communication
circuits between the Equipment and UMC's switching center,
including necessary modems for communications. UMC, or its
designee, shall provide on a 7-day-a-week/24 hours-a-day basis,
monitoring and diagnostic analysis of circuits and interface with
telephone companies to identify and resolve problems.
6. Exclusions. Maintenance services do not include:
a) electrical work external to the Equipment;
b) repair of damage resulting from accident, transportation,
neglect, misuse, or failure of electrical power, air
conditioning or humidity control;
c) furnishing platens, supplies or accessories, painting or
refinishing the Equipment or furnishing material therefor;
making specification changes or performing services
connected with relocation of the Equipment; or adding or
removing accessories, attachments or other devices; and
d) such services which are impracticable to render because of
alterations to the Equipment or their connection by
mechanical or electrical means to other devices.
B. SERVICES OF UFC.
1. Placement of the Equipment. UFC shall contract with the Southland
Corporation ("Southland") and grocery stores in the Market Area
to place the Equipment in Southland's 7-11 Stores and
participating grocery stores in the Market Area.
2. Vault Cash. UFC shall supply cash necessary to operate the
Equipment at such locations by depositing or advancing cash (the
"Security") in order to obtain vault cash to place in the
Equipment.
3. Armored Service. UFC shall contract with a security service such
as Brinks, Incorporated or Xxxxx Fargo Armored Services
Corporation, for an armored security service to supply the
Equipment with cash.
II. COMPENSATION.
A. UFC's Compensation. In consideration of UFC's services, UFC shall
receive all revenues and fees paid by participating financial
institutions for transactions performed on or occurring through the
Equipment ("UFC's Compensation").
B. UMC's Compensation. In consideration of UMC's services, UMC shall
receive all of UFC's net income which shall consist of UFC's
Compensation minus: the expenses paid by UFC for the armored service;
interest expense on the Vault Cash; debt service on the Equipment; any
fees paid to Southland, participating grocery stores and financial
institutions; taxes or insurance on the Equipment; and a cumulative 18
percent return on the Security outstanding as determined on a daily
basis (the sum of such items shall be referred to herein as the
"Expenses"). Any arrearages for the Expenses in excess of UFC's
compensation shall be paid by UMC to UFC before any amounts are paid
to UMC ("UMC's Compensation").
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III. WARRANTY.
A. UMC represents and warrants that Equipment which is maintained by UMC
or its designee will perform in accordance with its manufacturer's
published specifications. This warranty shall not extend to Equipment
that has been subjected to misuse, neglect or accident or which shall
have been altered or repaired (other than by UMC or its designee) in
such a manner as to affect adversely its performance, stability or
reliability. Parts on Equipment not covered by this warranty which are
replaced by UMC, or its designee, shall be replaced by UMC, or its
designee, at its then standard hourly rates for such replacement
services.
B. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLID
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
ARE IN LIEU OF ALL OTHER OBLIGATIONS OR WARRANTIES ON THE PART OF THE
LESSOR FOR DAMAGES INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL
DAMAGES.
IV. LIMITATION OF LIABILITY.
A. UMC's sole obligation in case of any breach of its representations and
warranties set forth herein shall be to repair or replace, at UMC's
option, any defective item of Equipment and UMC will promptly
reimburse UFC for all funds which, as a result of any deficiencies in
UMC's software or otherwise, cause funds to be dispersed without a
corresponding credit to UFC's settlement account. UMC will act as
UFC's agent in recovering funds from interconnecting switches and
financial institutions from which UFC is due credits. Except as set
forth above, UMC's liability hereunder from any and all causes
relating to the maintenance services provided pursuant hereto shall be
limited to general money damages in an amount not to exceed UMC's
Compensation. The foregoing limitations shall be the extent of UMC's
liability under this Agreement regardless of the form in which any
legal or equitable action may be brought against UMC (e.g. contract,
negligence or otherwise) and the foregoing shall constitute UFC's sole
remedies.
B. IN NO EVENT WILL UMC BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WHICH UFC MAY INCUR OR EXPERIENCE ON ACCOUNT
OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF UMC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
V. CHARGES; TERMS; TAXES; PAYMENTS.
A. Compensation shall commence on the Installation Date of the Equipment
and shall be due and payable on the first day of each month
thereafter. The first
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monthly compensation payment shall include a pro rata amount for any
portion of the preceding month following the Installation Date,
defined below.
B. The Initial Term of this Agreement shall be for twenty-four (24)
months, commencing on the Installation Date. This Agreement shall
automatically renew and continue in full force and effect for
successive twelve (12) month renewal periods unless termination by
written notice by either party is given not less than thirty (30) days
prior to the end of the initial term or any renewal term.
C. There shall be added to all payments hereunder amounts equal to any
applicable taxes levied or based on this Agreement, exclusive of taxes
based on UMC's net income.
D. All invoices shall be paid by UFC in full within ten days of receipt.
If UFC fails to pay any amount due under this Agreement whether by
acceleration or otherwise, UFC shall, upon demand, pay interest at the
highest rate of interest allowable, but in no vent more than 1-1/2%
per month, payable monthly, on such delinquent amount from the due
date until the date of payment. UFC agrees to reimburse UMC for any
and all expenses UMC may incur, including reasonable attorney fees, in
taking action to collect any amounts due UMC hereunder or in enforcing
any of UMC's rights hereunder.
VI. OPTION TO PURCHASE. The Stockholders grant and convey to UMC an Option
("Option") to purchase from the Stockholders and the Stockholders shall
sell to UMC all of the shares of common stock then owned by the
Stockholders if such option is exercised by written notice from UMC, at the
Option Price (defined below) payable by cashier's check on the closing
date. The Option is exercisable by UMC at any time on or after August 15,
1991 with respect to all of the shares then held by the Stockholders, as
reflected on the books and records of UFC. To exercise the Option, UMC
shall give thirty (30) days prior written notice to the Stockholders. Upon
exercise of the Option, the Stockholders shall be obligated to sell all of
their shares at the Option Price. The closing of such purchase and sale
shall take place at the office of UMC on a date designated by UMC, which
date shall be the later of 90 days following (i) the date of written notice
by the Purchasers of his intention to exercise the Option and (ii)
determination of the Option Price (the "Closing Date").
VII. OPTION PRICE. The Option Price to be paid by UMC for all of the shares of
common stock of UFC shall be an amount equal to one hundred and ten percent
(110%) of the sum of the Stockholders' capital contributed to UFC, the
amount paid for the Equipment and restoration of any arrearages in the
Expenses.
VIII.NOTICES. Any notice, request, instrument or other document to be given
hereunder shall be in writing and delivered personally or sent by certified
or registered mail, postage prepaid:
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a. If to UFC, addressed as follows:
Universal Funding Corp.
0000 Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxx 00000
b. If to UMC, addressed as follows:
Universal Money Centers
X.X. Xxx 00000
Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000
Or to such other address as any of the parties hereto may designate by notice
given as above provided. Any item sent by registered or certified mail, as above
provided, will be deemed given when deposited in the United States mail.
IX. TERMINATION. The occurrence of any of the following events shall terminate
the Option and this Agreement.
A. Representations. Any representation or warranty made by UMC in this
Agreement or in any Agreement, certificate, document or financial or
other statement furnished at any time in connection herewith shall
prove to have been incorrect in any material respect when made.
B. Insolvency. If UMC (1) makes a general assignment for the benefit of
creditors, (2) admits in writing the inability to pay debts as they
become due, (3) files a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
(4) files an answer admitting or not contesting the material
allegations of a petition against it in any such proceeding, (5) seeks
or consents to or acquiesces in the appointment of any trustee,
receiver or liquidator for it or any material part of its properties,
(6) discontinues to suspends its business as a going concern, (7)
files a petition for bankruptcy, (8) is adjudicated a bankrupt or
insolvent, or (9) is declared insolvent.
C. Involuntary Proceedings. Any involuntary or statutory proceedings
against UMC seeking any reorganization, bankruptcy, arrangements,
composition, readjustment, liquidation, dissolutions, receivership or
similar relief under any present or future statute, law or regulation.
D. Attachment. The attachment, seizure, levy upon or taking of possession
by any receiver, custodian or assignee for the benefit of creditors of
any property of UMC or UFC.
X. RESTRICTED TRANSFER. The Stockholders shall be prohibited from selling
their shares during the term of this Agreement unless their transferee
executes an agreement granting UMC an option to purchase the transferee's
shares on the same basis as the Option provided in this Agreement.
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Each Certificate for shares now or hereafter held by the Stockholder (or
any transferee of his) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"The transfer or encumbrance (by operation of law or otherwise)
of the shares represented by this certificate is restricted by the
terms of an Agreement dated August 15, 1989, a copy of which is on
file at the office of UFC."
XI. MISCELLANEOUS. This Agreement, including the documents, exhibits and
schedules referred to herein, contains the entire understanding of the
parties hereto and supercedes all prior understandings, agreements or
undertakings of the parties with respect to the subject matter herein, and
may be amended only by a written instrument executed by Seller and Buyer.
Whenever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
provision or the remaining provisions of this Agreement. This Agreement
shall be a contract made under, and shall be governed by and construed
under, the laws of the State of Missouri. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors, assigns and personal representatives, provided, however, that
no assignment by any party hereto of any right hereunder shall be made on
or prior to the Closing Date, and no assignment, by operation of law or
otherwise, shall relieve any party of its obligations hereunder. This
Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute together but
one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the days and year set forth below.
UNIVERSAL MONEY CENTERS, INC. UNIVERSAL FUNDING CORP.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Its: President Its: Vice President
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Date: August 15, 1989 Date: August 15, 1989
------------------------------- -----------------------------------
Attest: /s/ Xxxxxx Xxxx Attest: /s/ Xxxxxx Xxxx
----------------------------- ---------------------------------
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxxx
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Xxxxx X. Xxxxxx, Stockholder Xxxxxxx Xxxxxxxx, Stockholder
/s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx, Stockholder
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