ATM SUBLEASE
THIS ATM SUBLEASE ("Sublease"), made and entered into as of the 14 day of
January, 2000, by and among NATIONWIDE MONEY SERVICE, INC., a Nevada corporation
("Sublessor"), UNIVERSAL MONEY CENTERS, INC., a Missouri corporation
("Sublessee") and DANA COMMERCIAL CREDIT CORPORATION, a Delaware corporation
("Lessor").
WITNESSETH:
WHEREAS, by a certain written Master Lease Agreement (the "Master Lease")
dated January 28, 1996, as amended by Lease Schedule No. 5 dated March 30, 2000
("Lease Schedule"; together with the Master Lease, the "Lease Agreement"),
Lessor leased to Sublessor certain automatic teller machines ("ATMs"), including
the 11 ATMs Sublessor placed at certain locations as set forth on Exhibit A
hereto (collectively, the "Leased ATMs", and individually a "Leased ATM").
WHEREAS, Sublessee desires to sublease from Sublessor, and Sublessor is
willing to sublet to Sublessee the Leased ATMs on the terms and conditions more
particularly set forth hereinafter.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements herein contained, Sublessor and Sublessee agree as follows:
1. Sublease. Sublessor, for and in consideration of the rents and
covenants specified to be paid, performed and observed by Sublessee,
does hereby let, sublet, lease and demise to Sublessee the Leased ATMs
for the term and according to the covenants and conditions contained
herein.
2. Term; Renewal. Subject to Sections 7 and 11 of this Sublease, the
initial term of this Sublease shall be for a period of one (1) month
commencing on the Conveyance Date (as defined under the Agreement for
Assignment of ATM Space Leases dated as of the date hereof by and
between Sublessee and Sublessor) and terminating 30 days after the
Conveyance Date (the "Initial Term"). The term of the Sublease shall
automatically renew at the end of the Initial Term and at the end of
each successive Renewal Term (as defined herein) for a period of 30
days (a "Renewal Term"; together with the Initial Term, the "Sublease
Term"), unless either party hereto shall have received, at least 30
days prior to the end of the Initial Term or any subsequent Renewal
Term, written notice from the terminating party that such party is
terminating this Sublease. At the end of the Sublease Term, if
Sublessee has not purchased the Leased ATMs from Sublessor pursuant to
Section 8 herein, Sublessor shall take possession of the Leased ATMs
at the location set forth on Exhibit A hereto or such other location
where a Leased ATM has been moved pursuant to Section 5(d) herein.
3. Rent and Other Charges.
a. Sublessee shall pay to Sublessor as rent for the Leased ATMs the
sum of One Hundred and 00/100 Dollars ($100.00) per Leased ATM,
payable upon the execution of this Sublease as rent for the
Initial Term. For each Renewal Term, Subleasee shall pay
Sublessor as rent for the Leased ATMs the sum of One Hundred and
00/100 Dollars ($100.00) per Leased ATM upon the last calendar
day of such Renewal Term.
b. A Late Fee of five percent (5%) of the total amount due shall be
assessed for any month in which payment is received by Sublessor
after the 10th day of the Initial Term or the 10th day after the
end of any Renewal Term.
c. Except as expressly provided in this Sublease, Sublessee shall
not be obligated to pay Sublessor any other amount in connection
with this Sublease.
4. Liens And Encumbrances; Title; Personal Property. Lessor is sole owner
of the Leased ATMs and no right, title or interest in the Leased ATMs
shall pass to Sublessor or Sublessee, as the case may be, other than,
conditioned upon (i) compliance with and fulfillment of the terms and
conditions of the Master Lease by Sublessor, and (ii) compliance with
and fulfillment of the terms and conditions of this Sublease by
Sublessor and Sublessee, as the case may be, the right to maintain
possession and use of the Leased ATMs for the Sublease Term free from
interference by any person. At its option, Sublessor may require
Sublessee to affix plates, markings or other notices on the Leased
ATMs indicating Lessor is the owner. The Leased ATMs shall at all
times remain personal property, notwithstanding, the Leased ATMs or
any part thereof may be (or become) affixed or attached to real
property or any improvements thereon.
5. Operation and Maintenance; Inspection.
a. Sublessee shall be solely responsible for the installation,
operation, and maintenance of the Leased ATMs, and, at its own
cost and expense, shall (i) keep the Leased ATMs in good repair,
condition and working order, in accordance with any applicable
manufacturer's manuals, instructions or requirements, (ii)
furnish all parts, mechanisms, devices and servicing required
therefor, (iii) make all replacements, alterations or additions
to the Leased ATMs that may be required by the vendor or
manufacturer of the Leased ATMs or may be legally necessary, and
(iv) make no other alterations or additions to the Leased ATMs
without the prior written consent of Lessor. Parts attached to or
installed in or on the Leased ATMs as required by clauses
(i)-(iv) above shall be free and clear of all liens and have a
value, utility and remaining useful life at least equal to the
parts replaced. Title to all such parts shall immediately vest in
Lessor without cost to Lessor, or any further action, and such
parts, alterations or additions shall be deemed incorporated into
the Leased ATMs and subject to the terms of this Sublease and
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the Lease Agreement as if originally leased thereunder.
b. Sublessee shall use and operate the Leased ATMs by competent and
duly qualified personnel, and for business purposes only in
compliance with applicable law, applicable manufacturer's
manuals, instructions or warranty requirements and all insurance.
c. Sublessee, at its own cost and expense, shall enter into and
maintain in full force and effect throughout the Sublease Term,
with the manufacturer or such other party as may be acceptable to
Sublessor, a maintenance agreement covering the Leased ATMs.
d. Sublessee shall not move the Leased ATMs from the location
specified in the Lease Schedule without the prior written consent
of Sublessor, which consent shall not be unreasonably withheld,
and, if granted, without executing financing statements and
completing filings or taking such other actions as Sublessor may
reasonably request to protect Lessor's interest in the Leased
ATMs.
e. Sublessee agrees never to abandon or relinquish possession of the
Leased ATMs except to Sublessor or its agents.
f. Subject to Sublessee's standard security procedures, Lessor or
Sublessor may enter the premises where the Leased ATMs is located
during normal business hours for the purpose of (i) inspecting
the Leased ATMs and, (ii) showing the Leased ATMs to prospective
purchasers or lessees of the Leased ATMs.
6. Risk Of Loss. Not to exceed $2,000 (two thousand dollars) per Leased
ATM, Sublessee hereby assumes and shall bear the risk of loss, theft,
damage or destruction of the Leased ATMs by any cause whatsoever
including, without limitation, economic loss through extraordinary or
premature wear, or condemnation, confiscation, seizure or requisition
of the title or use of any of the Leased ATMs by any government entity
and whether or not such Loss is covered by insurance (collectively,
"Loss"). In the event of Loss, Sublessee shall promptly notify
Sublessor in writing of the Loss and all related details and any
action related thereto, and Sublessee shall, within thirty (30) days
of the Loss (a) repair the Leased ATMs and restore it to the same good
condition and working order as it was immediately prior to the Loss
(assuming the Leased ATMs was in the condition required by the terms
of Section 5 herein); or (b) replace the Leased ATMs affected by the
Loss with like personal property with equivalent value, useful life
and utility, in good repair, condition and working order; provided,
however, Sublessee shall not be required to take any action whatsoever
pursuant to clauses (a) and (b) herein which would result in the
Sublessee expending more than $2,000 (two thousand dollars) per Leased
ATM.
7. Default.
a. If Sublessee fails to make any rent payment when due as provided
in this Sublease
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and such failure to pay is not cured for 30 days, the Sublease
shall terminate within 10 days of Sublessee receiving written
notice of such failure.
b. In the event Sublessee fails to comply with any other provision
of this Sublease, Sublessor shall have the right, but shall not
be obligated, to effect such compliance on behalf of Sublessee.
In such event, all monies expended by and all expenses of
Sublessor in effecting such compliance shall be deemed to be
additional rent, and shall be paid at the time of the next rent
payment after receiving an invoice detailing the same.
c. In the event Sublessor fails to comply with the provisions of
this Sublease, Sublessee shall have the right, but not the
obligation to effect such compliance on behalf of Sublessor. In
such event, all monies expended by and all expenses of Sublessee
in effecting such compliance shall be deemed to be the obligation
of Sublessor and shall be paid to Sublessee within 10 days of
receiving an invoice detailing the same.
8. Purchase Option.
a. If no event of default exists under Section 7 herein, Sublessee
has complied with all of the terms and conditions of the Sublease
and Sublessee delivers to Lessor and Sublessor an irrevocable
written notice at least one hundred thirty-five (135) days prior
to the last day of the Lease Term (as such term is defined in the
Lease Agreement), Sublessee shall have the option to purchase
all, but not less than all, of the Leased ATMs from Sublessor at
the end of the Sublease Term at the Purchase Option Price (as
defined below).
b. The "Purchase Option Price" of the Leased ATMs shall be an amount
equal to the Fair Market Value (as defined below) of such Leased
ATMs, as agreed upon by Sublessor and Sublessee or, failing such
agreement, as determined by an appraisal, at Sublessee's expense,
from an independent qualified appraiser selected by Sublessee and
reasonably satisfactory to Sublessor, plus an amount equal to all
sales, use, property or excise taxes, on or measured by the sale
of the Leased ATMs to Sublessee, plus any other expenses of
transfer. "Fair Market Value" is the selling price that would be
obtained in an arm's-length transaction between an informed and
willing buyer and an informed and willing seller, each under no
compulsion to buy or sell; provided, however, such values shall
be determined on the basis that the Leased ATMs conforms to all
conditions specified in this Sublease and is installed and/or in
service. In determining Fair Market Value, the costs of removing
the Leased ATMs shall not be deducted from its value.
c. If Sublessee elects to purchase the Leased ATMs, Sublessee shall
pay Sublessor the Purchase Option Price on or before the last day
of the Lease Term in immediately available funds and the sale of
the Leased ATMs by Sublessor to Sublessee shall be on an AS-IS,
WHERE-IS basis, without recourse to, or warranty by Sublessor and
NIETHER SUBLESSOR NOR LESSOR SHALL
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NOT BE DEEMED TO HAVE MADE, AND SUBLESSOR AND LESSOR HEREBY
EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EITHER
EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING
WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE LEASED ATMS,
THEIR MERCHANTABILITY OR THEIR FITNESS FOR USE OR FOR ANY
PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF
THE LEASED ATMS, ITS VALUE OR CONFORMITY TO ANY SPECIFICATIONS OR
AGREEMENTS RELATING THERETO, NOR SHALL SUBLESSOR OR LESSOR BE
LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR STRICT OR
ABSOLUTE LIABILITY IN TORT.
d. Notwithstanding any provisions of this Section 8 to the contrary,
Sublessee's right to purchase, and Sublessor's agreement to sell,
any or all of the Leased ATMs are expressly conditioned upon
Sublessor's exercising its purchase option under the Lease.
Further, prior to consummation of Sublesee's purchase of the
Leased ATMs, Sublessor shall represent and warrant to, and
provided such other evidence as reasonably required by, Sublesee
that Sublessor is the owner of the Leased ATMs holding marketable
title, free and clear of any liens or other encumbrances.
9. Notices. All notices, requests, demands and communications with
respect to this Sublease, whether or not herein expressly provided
for, shall be in writing, and shall be deemed to have been duly given
when and if mailed by United States First-Class Certified or
Registered Mail, postage prepaid, return receipt requested, to the
parties at the respective addresses set forth below, or to such other
address or addresses as may hereafter be designated by either party in
writing for such purpose.
If to Sublessor: Nationwide Money Services, Inc.
221 Ponte Vedra Park Drive
Suite 100
Ponte Vedra Beach, Florida 32082
Telephone: 904-280-8500
Facsimile: 904-280-8588
If to Sublessee: Universal Money Centers, Inc.
6800 Squibb Road
Mission, KS 66202
Telephone: (816) 831-2055
Facsimile: (816) 831-0248
10. Assignment. Neither Sublessor nor Sublessee shall, without the prior
written consent of the other party and Lessor, (i) assign its rights
and obligations under this Sublease; or (ii) let or underlet or permit
the Leased ATMs or any part thereof to be used by others.
11. Subject and Subordinate to Lease Agreement. Notwithstanding any
provision hereof or of any other document or agreement by or between
Sublessor and Sublessee, to the
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contrary, in order to induce Lessor to consent to the sublease created
hereby (which consent the parties hereby acknowledge as being required
by Section 11 of the Master Lease), Sublessor and Sublessee hereby
represent, warrant and Sublessor, Sublesee and Lessor agree as
follows:
a. Sublessor Remains Liable. Sublessor hereby acknowledges that it
is now and continues to be primarily and fully obligated by the
terms and conditions of the Lease Agreement notwithstanding any
delegation of duties by Sublessor, the assumption of any
obligations or liabilities by Sublessee or as a consequence of
any other term of any kind whatsoever of this Sublease. Any such
delegation shall be effective only as between Sublessor and/or
Sublessee, as the case may be.
b. Subject and Subordinate. Sublessor's and/or Sublessee's interest
the Leased ATMs shall be expressly subject and subordinate in all
respects to all of the terms and conditions of the Lease
Agreement, including, without limitation, all of the rights,
powers and/or remedies of the Lessor under the Lease Agreement
including, Lessor's rights of repossession (a copy of the Lease
Agreement is attached hereto and made part hereof as Exhibit B);
provided, however, Sublessee does not assume any obligations or
duties of Sublessor under the Lease Agreement except as expressly
provided herein.
c. No Obligations. Lessor shall have no obligation of any kind
whatsoever to perform any of the obligations or duties of
Sublessor under the Sublease, including, without limitation,
selling any Leased ATM to Sublessee, payment of any taxes or
other sums, furnishing of maintenance, repairs, replacement
Leased ATMs, service, insurance or otherwise.
d. Sublease Expiration. The Sublease shall expire, and control of
the ATMs will be returned to Sublessor (or, at Lessor's option,
to Lessor), on the expiration, or earlier cancellation or
termination, of the term of the Lease Agreement with respect to
the Leased ATMs.
e. Lease Agreement Prevails.Sublessee hereby agrees that its rights
under the Sublease or with respect to the ATMs are and shall
remain no more extensive than Sublessor's rights under the
provisions of the Lease Agreement. Nothing contained herein shall
in any way limit Lessor's rights or Sublessor's obligations under
the Lease Agreement.
f. Consent. Subject to the foregoing terms and conditions, Lessor
hereby consents to the subleasing of the Leased ATMs to the
Sublessee pursuant to the terms of this Section 11. Lessor shall
be deemed a beneficiary of all of the provisions hereof.
12. Counterparts. This Sublease may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts. Execution in counterpart shall
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have the same effect as if the signatures thereto and hereto were upon
the same instrument.
13. Entire Agreement; Amendments; Binding Effect. This Sublease contains
the entire agreement among the parties hereto with respect to the
subject matter covered hereby, may not be amended or rescinded except
by an instrument in writing executed by each of the parties hereto,
and shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties have hereunto executed these presents as
of the day and year first above written.
NATIONWIDE MONEY SERVICES, INC.
/s/ Nationwide Money Services, Inc.
By:________________________________________________
Printed Name:______________________________________
Title:_____________________________________________
("Sublessor")
UNIVERSAL MONEY CENTERS, INC.
/s/ David S. Bonsal
By:________________________________________________
Printed Name: David S. Bonsal
Title: Chief Executive Officer
("Sublessee")
Lessor is entering into this Sublease for the purposes set forth in
Section 11 of this Sublease.
DANA COMMERCIAL CREDIT CORPORATION
/s/ Dana Commercial Credit Corporation
By:________________________________________________
Printed Name:______________________________________
Title:_____________________________________________
("Lessor")
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EXHIBIT A
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Location Name Location Address Location City State
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1 Farm Crest #1 2105 W. Colorado Avenue Colorado Springs CO
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2 Farm Crest #2 2129 Templeton Gap Road Colorado Springs CO
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3 Farm Crest #3 5510 S. Highway 85-87 Security CO
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4 Farm Crest #7 8108 N. Academy Boulevard Colorado Springs CO
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5 Farm Crest #8 5050 Boardwalk Drive Colorado Springs CO
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6 Farm Crest #9 3945 Palmer Park Boulevard Colorado Springs CO
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7 Farm Crest #10 1989 W Mississippi Avenue Denver CO
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8 Farm Crest #13 1970 S. Holly Street Denver CO
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9 Farm Crest #15 11185 Ralston Road Arvida CO
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10 Farm Crest #16 10798 W Jewell Avenue Lakewood CO
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11 Farm Crest #18 250 E. Dry Creek Road Littleton CO
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