EXHIBIT 10.15
INTERIM MANAGEMENT AGREEMENT
This Interim Management Agreement ("Agreement") is made and entered
into as of the 24th of February, 1997, by and among Shared Technologies
Xxxxxxxxx, Inc., a Delaware corporation (the "Manager"), GE Capital-ResCom,
L.P., a Delaware limited partnership (the "Company"), ResCom, Inc., a California
corporation, and POTS, Inc., a Delaware corporation (ResCom, Inc. and POTS, Inc.
are sometimes referred to herein collectively as the "Partners").
RECITALS:
The Company is engaged in the business of installing,
operating, maintaining and managing telephone and other communications systems
in multi-unit residential buildings (collectively, the "Company's Business");
and
The Manager has knowledge and experience in managing and
operating businesses engaged in providing telecommunications systems in
residential and commercial buildings; and
The Company desires that the Manager provide management
personnel and services for the Company's Business, and the Manager desires and
agrees to provide the necessary personnel and services therefor; and
In order to induce the Manager to enter into this Management
Agreement, the Partners have agreed to indemnify the Manager as is more
specifically set forth herein.
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF THE MANAGER.
Subject to the terms and conditions set forth herein, the Company
hereby appoints and employs the Manager as the Company's exclusive agent to
provide management services set forth in Section 4 hereof in connection with the
Company's Business during the term of this Agreement. The Manager accepts the
appointment as exclusive agent and agrees to manage the Company's Business
during the term of this Agreement, in accordance with the terms and conditions
hereinafter set forth.
2. TERM.
2.1 The effective date of this Agreement shall be February 24, 1997
(the "Commencement Date"), and this Agreement shall continue in effect until the
earlier of (a) termination pursuant to Section 9 hereof, (b) the execution of a
management agreement by
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ResCom, L.L.C., a limited liability company formed or to be formed under the
laws of the State of Delaware ("NewCo") and the Manager for the management of
NewCo's business (the "Definitive Management Agreement"), or (c) July 31, 1997.
3. COMPENSATION OF THE MANAGER.
3.1 Base Compensation. The Company shall pay to the Manager a monthly
fee of one million dollars ($1,000,000.00) (the "Base Compensation") on the
first day of each month beginning on April 1, 1997 until termination pursuant to
Section 9 or expiration of this Agreement pursuant to Section 2; provided,
however, that the Company shall pay to the Manager on February 24, 1997 an
amount equal to $1,166,667.00 in respect of a pro rata portion of Base
Compensation for the month of February 1997 and Base Compensation for the month
of March 1997. In the event termination (computed to include all cure periods if
applicable) occurs prior to the last day of a month, the Manager shall be
entitled to retain only that pro rata portion of the Base Compensation for the
month in which termination occurs as the number of days of such month prior to
and including the date of termination bears to the total number of days of such
month. Upon termination, the Manager shall remit to Company the difference (if
any) between the amount of Base Compensation paid for such month and the amount
to which the Manager is entitled pursuant to this paragraph.
3.2 Service Fees for Additional Services. In addition to its Base
Compensation, the Manager shall also be entitled to receive from the Company as
compensation for Additional Services provided pursuant to Section 4.3 hereof the
following fees and expenses (collectively, the "Service Fees"):
a. an amount equal to $2.50 per month per billing statement
generated by the Manager for telecommunications services (regardless of the
number of telephone or facsimile lines reflected on any one billing statement)
pursuant to a scope of work to be mutually determined by the parties (the
"Billing Fee"); plus
b. an amount equal to $3.00 per month per telecommunications
subscriber line monitored and maintained by the Manager pursuant to a scope of
work to be mutually determined by the parties (the "Maintenance Fee") and actual
replacement costs of equipment; plus
c. an amount equal to $50.00 per hour (or pro rata portion
thereof) for changes, additions or modifications of telephone numbers, plus the
actual cost of equipment and hardware installed or provided in connection
therewith pursuant to a scope of work to be mutually determined by the parties
(the "Installation Fee").
provided, however, that to the extent the Company is able to obtain from another
provider more favorable pricing (considered on comparable terms and conditions)
with respect to the services described in clauses 3.2(a), 3.2(b), and 3.2(c),
the Company shall so notify the Manager in writing and shall provide written
substantiation of the third-party provider's offer. The Manager shall
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either (1) agree to lower the Billing Fee, the Maintenance Fee, and/or the
hourly component of the Installation Fee, as the case may be, payable under this
Agreement to the level proposed by the third-party provider; or (2) agree to
allow the third-party provider to provide the services described in clauses
3.2(a), 3.2(b), and/or 3.2(c).
4. MANAGEMENT OF THE COMPANY'S BUSINESS.
4.1 In General. The Manager shall use reasonable efforts to manage and
direct the Company's Business in accordance with good operating practices in the
telecommunications industry. The Manager shall use reasonable efforts to achieve
the objectives of the Company's Business Plan ("Business Plan"), a copy of which
is attached hereto as Exhibit A. Notwithstanding anything to the contrary
herein, the Manager hereby agrees (a) to consult with the Company and to obtain
the approval of the Planning Committee of the Company with respect to any and
all "Major Actions" (as defined in Section 4.4 below); and (b) to use reasonable
efforts to manage and direct the Company's Business in accordance with the
guidelines and requirements set forth herein and in compliance with all
obligations and covenants of the Company.
4.2 Duties of the Manager. Without limiting the generality of the
foregoing, the Manager shall be and is hereby granted the authority and has the
obligation, in accordance with the Business Plan, to manage the Company's
Business in the ordinary course, specifically and without limitation to:
a. Make such recommendations to the Planning Committee as are
consistent with the Business Plan with respect to hiring, compensation,
supervision, and discharge, on behalf of the Company, of all employees
and personnel of the Company necessary for the operation of the
Company's Business.
b. Prepare and maintain accurate, full and complete books and
records for the Company, including without limitation, accounting books
and records relating to the Company's Business in accordance with
generally accepted accounting principles and the provisions of this
Agreement for accounting purposes, and in accordance with federal
income tax accounting principles utilizing the accrual method of
accounting for tax purposes; and, completion, on a timely basis, of all
reports, filings, tax returns and other documents required of the
Company by any governmental entity or person having jurisdiction over,
or authority concerning the Company's Business, with regard to the
operation of the Company's Business.
c. From time to time, negotiate leases, licenses, service
contracts, franchise and other agreements for all aspects of the
Company's Business upon the Company's direction.
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d. Make recommendations to the Company with respect to
procurement, maintenance and compliance with all permits, licenses and
other governmental approvals as are necessary to operate the Company's
Business.
e. Provide on a quarterly basis, or as otherwise required,
information or prepare financial statements or reports for any filings
with regulatory agencies, such as, but not limited to, the Internal
Revenue Service, and information for any filings with lending
institutions; and prepare and deliver to the Company as soon as
available, and in any event within 90 days after the close of each
Fiscal Year during the term of this Agreement, the consolidated and
consolidating balance sheets of the Company and its subsidiaries as of
the close of the Fiscal Year, and the respective statements of income
and retained earnings and changes in financial position (on a
consolidated basis) of the Company, and its subsidiaries for the Fiscal
Year, in each case setting forth in comparative form the figures for
the preceding Fiscal Year.
f. Make recommendations to the Planning Committee with respect
to the purchase and timing of purchase of inventory, payments of
accounts payable, and collection of accounts receivable.
g. Generally perform all things necessary for the overall
management, direction and supervision of the Company's Business and
personnel in accordance with the Business Plan.
4.3 Additional Services. In addition to the Manager's duties set forth
in Sections 4.1 and 4.2 above, the Manager hereby agrees to make available the
following additional services for the compensation set forth in Section 3.2: (i)
generation and mailing of monthly billing statements for telecommunications
services; (ii) monitoring and maintenance of telecommunications lines; and (iii)
changes, additions or modifications of telephone numbers (collectively, the
"Additional Services"). The Manager shall only provide such Additional Services
upon the written request of the President of the Company, which request shall be
delivered no later than 30 days prior to the date Manager is to commence
providing such Additional Services.
4.4 Major Actions. "Major Actions" shall mean each of the following:
a. any merger or consolidation with, or acquisition of all or
substantially all of the assets or capital stock of, another person (or
a division or other business unit of another person) or other business
combination or any dissolution and winding-up of the Company;
b. except as contemplated by the Business Plan, entering into
any material transaction or agreement, which obligates or subjects the
Company to pay a liability in excess of $50,000;
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c. except as contemplated by the Business Plan, incurring any
indebtedness for trade payables in the ordinary course of business in
excess of $50,000 per month (excluding monthly trade payables to local
exchange or local inter-exchange carriers and monthly commitments under
service contracts to the extent in existence on the date hereof);
d. except as contemplated by the Business Plan, entering into,
amending, granting any waiver with respect to or terminating any
agreement outside of the ordinary course of business to the extent that
the agreement provides for (or, pursuant to its terms, could reasonably
be expected to result in) the payment or receipt by the Company of more
than an aggregate amount of $50,000 during the term thereof;
e. except as contemplated by the Business Plan, entering into
any agreement or transaction which has a term in excess of six months;
f. except as contemplated by the Business Plan, entering into
any employment or consulting agreement (or series of related employment
or consulting agreements with the same person) with a term of more than
six months or which provides for (or, pursuant to its terms, could
reasonably be expected to result in) payments (including any payments
pursuant to an employment or consulting agreement between the Company
and the employee or consultant) to the employee or consultant in excess
of $50,000;
g. other than this Agreement, and except as specifically
contemplated by the Business Plan from time to time, entering into any
transaction or agreement (i) with the Manager or any Affiliate of the
Manager or (ii) in which the Manager or any Affiliate of the Manager
has a substantial financial interest;
h. use of trademarks owned or leased to the Company by any of
the Partners;
i. appointing or changing the Company's independent certified
public accountants;
j. except as required by GAAP or applicable law, adopting or
changing any accounting principle;
k. commencing or settling any litigation, arbitration or
governmental proceeding which is likely to result in costs or
liabilities in excess of $50,000, or is likely to have a material
impact on the Company or the Company's Business;
l. adopting or modifying or amending in any material respect
the Business Plan;
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m. except as contemplated by the Business Plan, making any
loans, investments or advances to, or guaranteeing the obligations of,
any person;
n. incorporating, forming or otherwise organizing a subsidiary
of the Company;
o. the sale of any assets of the Company having a fair market
value of $50,000 or more;
p. changing the location of the principal office of the
Company;
q. the filing by the Company of a voluntary petition in
bankruptcy or for reorganization or for the adoption of an arrangement
or an admission seeking the relief therein provided under any existing
or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors;
r. except as contemplated by the Business Plan, permitting any
material encumbrances on any assets of the Company; or
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s. entering into any options, contingent agreements or other
arrangements which if exercised or consummated in accordance with their
terms would result in an action constituting a "Major Action."
4.5 Personnel.
a. The Manager's Personnel. The Manager shall at all times,
assign and maintain sufficient employees and personnel, including, without
limitation, executive officers, office personnel, general bookkeeping staff, and
other personnel as may be required to provide proper supervision and management
of the Company and to otherwise comply with the obligations of the Manager set
forth in this Agreement. Exhibit B sets forth the initial list of personnel
designated by the Manager pursuant to this Section 4.5(a) and their respective
functions, which list may be revised by the Manager at any time in the Manager's
reasonable discretion. The Manager shall provide its own personnel for the
performance of the Additional Services described in Section 4.3 hereof.
b. The Company's Personnel. The Manager shall supervise the
work of employees of the Company. All employees of the Company shall remain
under the supervision and control of the Manager, and all wages, salaries and
other compensation paid thereto, including, without limitation, unemployment
insurance, social security, xxxxxxx'x compensation and disability benefits,
shall constitute operating expenses of the Company's Business and shall be
chargeable to the Company.
5. CONDUCT OF BUSINESS IN THE COMPANY'S NAME
5.1 Authority to Act on Behalf of the Company. The Manager shall have
the right and power to contract with third parties for, on behalf of, and in the
name of the Company or otherwise bind the Company to the extent permitted
pursuant to the terms of this Agreement. Third parties dealing with the Company
shall be entitled to rely conclusively upon the power and authority of the
Manager.
5.2 Reimbursement for Liabilities of the Company. All debts and
liabilities arising in the course of the operations of the Company's Business
are and shall be the obligations of the Company, and the Manager shall not be
liable for any of the obligations by reason of its management of the Company's
Business for the Company.
6. COMPLIANCE WITH LAWS AND COMPANY'S INTEGRITY POLICY.
6.1 The Manager shall comply with and abide by all applicable laws,
rules, regulations, requirements, orders, notices, determinations and ordinances
of any federal, state or municipal authority having jurisdiction over the
Company's Business.
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6.2 Subject to Section 6.1, the Manager shall use best efforts to
comply with and abide by the Company's Integrity Policy set forth in Exhibit C
hereto (the "Integrity Policy") in the performance of its obligations hereunder.
6.3 With respect to any material violation of any requirements
described in Section 6.1 with respect to which the Company receives a notice of
non-compliance, and with respect to any violation of the Integrity Policy of
which the Manager receives actual notice, the Manager shall promptly notify the
Company in writing, and the Company shall have the right to contest or to
require that the Manager contest any of the foregoing. The Manager shall also
provide the Company with a written statement detailing the specific steps that
will be taken (i) to bring the Company into compliance with the requirement of
law or the provision of the Integrity Policy alleged to have been violated and
(ii) to prevent future violations of that requirement or provision; provided,
however, that if the Manager is in good faith and with due diligence contesting
the alleged violation, the Manager shall not be obligated to provide the written
statement described in the foregoing clause, but shall be required only to state
in its notice that the Manager is contesting the alleged violation and the
Manager's basis therefor.
7. RIGHT OF INSPECTION
The Company, the Partners and their respective agents, officers,
accountants, attorneys or any other party designated by the Company, shall have
the right during reasonable business hours to examine or make extracts from any
and all books and records maintained by the Manager or its affiliates in
connection with the operation of the Company's Business in order to examine any
part of the work performed by the Manager in connection with this Agreement or
for any other purpose which the Company, in its sole discretion, shall deem
necessary or advisable. All books and records described in the foregoing
sentence are acknowledged to be the property of the Company.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Partners and the Company. The
Partners and the Company jointly and severally represent and warrant to the
Manager as follows:
(A) Corporate Power. ResCom, Inc. is a corporation duly
organized and in good standing under the law of the State of California. POTS,
Inc. is a corporation duly organized and in good standing under the law of the
State of Delaware. The Company is a limited partnership validly existing and in
good standing under the laws of the State of Delaware. Each of the Partners and
the Company has the full and unrestricted corporate or partnership (as the case
may be) power and corporate or partnership (as the case may be) authority to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. Each of the Partners and the Company is qualified and in
good standing as a foreign corporation or partnership (as the case may be) in
every jurisdiction where the nature of its business or the character of its
properties makes qualification necessary. Each of the Partners
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and the Company has the full and unrestricted corporate or partnership power and
corporate or partnership authority to own, operate and lease its properties and
to carry on its business.
(B) Authorization. All corporate action on the part of the
Partners and all partnership action on the part of the Company necessary for the
authorization, execution, delivery and performance by the Partners and the
Company of this Agreement and the consummation of the transactions contemplated
herein, has been taken or will be taken on or before February 24, 1997.
(C) Validity; Execution. This Agreement is a valid and binding
obligation of each of the Partners and the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general application affecting enforcement of
creditors' rights generally. The execution, delivery and performance by each of
the Partners and the Company of this Agreement and compliance therewith will not
result in any violation of and will not conflict with, or result in a breach of
any of the terms of, or constitute a default under, any provision of state or
Federal law to which the Partners or the Company is subject, or any mortgage,
indenture, agreement, instrument, judgment, decree, order, rule or regulation or
other restriction to which the Partners or the Company is a party or by which it
is bound, or result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Partners or the Company.
Neither the Partners nor the Company is subject to any law, ordinance,
regulation, rule, order, judgment, injunction, decree, charter, bylaw, contract,
commitment, lease, agreement, instrument or other restriction or any kind that
would prevent the Partners' or the Company's consummation of this Agreement or
any of the transactions contemplated hereby without the consent of any third
party, that would require the consent of any third party to the consummation of
this Agreement or any of the transactions contemplated hereby, or that would
result in any penalty, forfeiture or other termination as a result of their
consummation (except, in each case, to the extent that consents and/or waivers
have been obtained).
8.2 The Manager's Representations and Warranties. The Manager
represents and warrants to Company as follows:
(A) Corporate Power. The Manager is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the full and unrestricted corporate power and corporate
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. The Manager is qualified and in good standing
as a foreign corporation in every jurisdiction where the nature of its business
or the character of its properties makes qualification necessary. The Manager
has the full and unrestricted corporate power and corporate authority to own,
operate and lease its properties and to carry on its business.
(B) Authorization. All corporate action on the part of the
Manager necessary for the authorization, execution, delivery and performance by
the Manager of this Agreement
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and the consummation of the transactions contemplated herein has been taken or
will be taken prior to February 24, 1997.
(C) Validity; Execution. This Agreement is a valid and binding
obligation of the Manager, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally. The execution, delivery and performance by the Manager of this
Agreement and compliance therewith will not result in any violation of and will
not conflict with, or result in a breach of any of the terms of, or constitute a
default under, any provision of state or Federal law to which the Manager is
subject, or any mortgage, indenture, agreement, instrument, judgment, decree,
order, rule or regulation or other restriction to which the Manager is a party
or by which it is bound, or result in the creation of any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the Manager.
The Manager is not subject to any law, ordinance, regulation, rule, order,
judgment, injunction, decree, charter, bylaw, contract, commitment, lease,
agreement, instrument or other restriction or any kind that would prevent the
Manager's consummation of this Agreement or any of the transactions contemplated
hereby without the consent of any third party, that would require the consent of
any third party to the consummation of this Agreement or any of the transactions
contemplated hereby, or that would result in any penalty, forfeiture or other
termination as a result of their consummation (except, in each case, to the
extent that consents and/or waivers have been obtained).
9. RIGHTS OF TERMINATION
9.1 Joint Rights of Termination. Either the Company or the Manager may
terminate this Agreement without cause upon thirty (30) days prior written
notice.
9.2 The Manager's Rights of Termination. The Manager shall have the
right to terminate this Agreement upon the occurrence of any of the following
events:
a. A material breach by the Partners or the Company (as the
case may be) under this Agreement; or
b. In the event Base Compensation or the Service Fees are not
paid when due.
9.3 Company's Rights of Termination. The Company shall have the right
to terminate this Agreement upon occurrence of any of the following events:
(a) willful misconduct or gross negligence by the Manager in
the performance of its duties under this Agreement or a material breach by the
Manager under this Agreement;
(b) the dissolution, liquidation, bankruptcy or insolvency of
the Manager (including (i) the filing of a voluntary petition seeking
liquidation, reorganization, arrangement
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or readjustment in any form, of its debts under Title 11 of the United States
Code or any other federal or state insolvency law, or its filing of an answer
consenting to or acquiescing in the subject petition, (ii) the making of any
assignment for financing purposes, or (iii) the expiration of 90 days after the
filing of an (A) involuntary petition under Title 11 of the United States Code,
(B) an application for the appointment of a receiver for its assets, or (C) an
involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other federal or state insolvency law,
provided that the same shall not have been vacated, set aside or stayed within
the 90-day period); or
(c) a sale of the Company or substantially all of the
Company's assets.
9.4 Exercise of the Right of Termination.
(a) Upon the occurrence of any event listed in Section 9.2, the Manager
shall not have the right to terminate this Agreement until it has given written
notice to the Company stating that in the Manager's opinion an event described
in Section 9.2 has occurred that gives the Manager the right to terminate this
Agreement; provided, however, that (i) upon the occurrence of any event listed
in Section 9.2(a), the Company shall have fifteen days following delivery of the
notice described in the foregoing clause to cure or cause to be cured the breach
under this Agreement, or a longer period of reasonable duration if the default
or breach is not capable of being cured within fifteen days and the Company is
using diligent efforts to cure the default or breach, and (ii) upon the
occurrence of any event listed in Section 9.2(b), the Company shall have one day
following delivery of the notice described in the foregoing clause to cure or
cause to be cured the failure to pay the Base Compensation (in either case, the
"Cure Period"). Upon the expiration of the Cure Period, the Manager may
terminate this Agreement unless the Company has cured or caused to be cured its
default or breach. The Company shall remain liable for amounts, if any, payable
to the Manager pursuant to Sections 3, 4 or 5 hereof for accrued but unpaid
compensation or unreimbursed expenses to the last day of the calendar month in
which termination occurs.
(b) Upon the occurrence of any event listed in Section 9.3, the Company
shall not have the right to terminate this Agreement until it has given written
notice to the Manager stating that in the Company's opinion an event listed in
Section 9.3(a) or (b) has occurred that gives the Company the right to terminate
this Agreement; provided, however, that with respect to any event described in
Section 9.3(a), the Manager shall have thirty days following delivery of the
notice described in the foregoing clause to cure its default, or a longer period
of reasonable duration if the default is not capable of being cured within
thirty days the Manager is using diligent efforts to cure the default or breach
(in either case, the "Cure Period"). The Manager shall have no Cure Period with
respect to an the occurrence of an event described in Section 9.3(b). Upon the
expiration of the Cure Period, if any, the Company may terminate this Agreement
unless the Manager has cured its default or breach.
(c) The right of termination shall be in addition to other rights and
remedies as shall be available at law or in equity.
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9.5 Transition Following Termination. Following any termination of this
Agreement, (i) the Manager agrees to deliver to the Company on or before the
date the termination will be effective all books and records related to the
Company's Business which are in the possession of the Manager; and (ii) the
Manager shall use reasonable efforts to cooperate in connection with effecting a
business like and efficient transition of the Company's operations and
management, including transition to a newly selected manager.
10. INDEMNIFICATION; LIMITATION OF LIABILITY
10.1 The Partners and the Company hereby agree jointly and severally to
indemnify, protect, defend and hold the Manager harmless from and against any
and all liability, damage, cost or expense, including without limitation, court
costs and reasonable attorney's fees and expenses (but excluding costs and
expenses specifically identified herein as being payable by the Manager)
incurred by the Manager in connection with, or as the result of, the performance
by the Manager of the Manager's duties and obligations hereunder, other than any
liability, damage, cost, or expense resulting from the willful misconduct or
gross negligence of the Manager relating to the Company's Business. This Section
10 shall survive any termination or expiration of this Agreement for a period of
three years from such termination or expiration.
10.2 The Manager hereby agrees to indemnify, protect, defend and hold
the Company harmless from and against any and all damages in excess of $50,000
to the extent incurred by the Company as a direct result of the Manager's
entering into contracts on behalf of the Company that violate the terms of this
Agreement.
11. MISCELLANEOUS
11.1 Limitation of the Manager's Liability
Notwithstanding anything to the contrary in this Agreement, the Manager
shall have no liability to the Company with respect to any breach of its
obligations or covenants or any failure to perform its duties and
responsibilities hereunder except to the extent that the Manager's breach of its
obligations or failure to perform hereunder is due to the Manager's willful
misconduct or gross negligence, except as otherwise provided in Section 10.2.
11.2 Consents; Waivers. Any and all consents, amendments, agreements,
approvals or waivers provided for or permitted by this Agreement shall be in
writing. Failure on the part of any party hereto to insist upon strict
compliance by any other party, with any of the terms, covenants, or conditions
hereto shall not be deemed a waiver of the term, covenant or condition.
11.3 Successors Bound; Assignment Prohibited. This Agreement shall be
binding upon and inure to the benefit of the Company, and their respective
successors and assigns, and shall
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be binding and inure to the benefit of the Manager and its permitted successors
and assigns. The Manager may not assign this Agreement except with the prior
written consent of the Company.
11.4 No Partnership or Joint Venture. Nothing contained in this
Agreement shall constitute or be construed to be or create a partnership or
joint venture between the Company, its successors or assigns, on the one part,
and the Manager, its successors or assigns, on the other part.
11.5 Amendments. This Agreement may not be amended without the written
consent of each of the parties hereto.
11.6 Headings. The Article and Section headings contained herein are
for convenience of reference only and are not intended to define, limit or
describe the scope or intent of any provision of this Agreement.
11.7 Third Parties. Any provisions herein to the contrary
notwithstanding, it is agreed that none of the obligations hereunder of any
party shall run to or be enforceable by any party other than another party to
this Agreement.
11.8 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersede all prior negotiations, commitments,
understandings and agreements among the parties hereto, whether formal or
informal, in respect of any and all matters contemplated hereby.
11.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut, without reference to
the choice of law principles thereof.
11.10 Notices. Except for telephonic notices permitted herein, all
notices, requests, demands and other communications hereunder ("Notices") shall
be in writing and shall be deemed to have been duly given if (i) delivered
personally or sent by registered or certified mail, return receipt requested,
first class postage prepaid and properly addressed or (ii) made by facsimile
delivered or transmitted, to the party to whom the notice is directed, so long
as the notifying Party retains a facsimile confirmation sheet from the sending
facsimile machine. All Notices sent by mail shall be effective upon being
deposited in the United States mail in the manner prescribed above. For purposes
of this Agreement, all Notices or other communications given or made hereunder
shall be as follows:
If to the Partners:
POTS, Inc.
c/o GE Capital Corp.
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
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Attn: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
ResCom, Inc.
c/o GE Capital ResCom, L.P.
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to the Company:
GE Capital ResCom, L.P.
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esquire
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Manager:
Shared Technologies Xxxxxxxxx, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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11.11 Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, any modification or extension hereof, or any breach
hereof (including the question whether any particular matter is arbitrable
hereunder) shall be settled exclusively by arbitration, in [New York, New York]
in accordance with the rules of the CPR Legal Program then in force (the
"Rules"). The party requesting arbitration shall serve upon the other party to
the controversy, dispute or claim a written demand for arbitration stating the
substance of the controversy, dispute or claim and the contention of the party
requesting arbitration. The parties hereto agree to abide by all awards and
decisions rendered in an arbitration proceeding in accordance with the
foregoing, and all such awards and decisions may be filed by the prevailing
party with any court having jurisdiction over the person or property of the
other party as a basis for judgment and the issuance of execution thereon. All
costs and expenses of arbitration or litigation relating to this Agreement shall
be paid by the non-prevailing party.
11.12 Further Instruments. The parties hereto shall execute and deliver
all other appropriate supplemental agreements and other instruments, and take
any other action necessary to make this Agreement fully and legally effective,
binding and enforceable as between the parties. Any expenses incurred in
connection therewith shall be borne by each party.
11.13 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy, and all of
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties shall not have signed the same counterpart.
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11.14 Confidentiality.
a. Maintenance of Confidentiality. Each of the parties shall, during
the Term of this Agreement and at all times thereafter, maintain in confidence
all proprietary information provided by one party to the other party in
connection with this Agreement. Each of the parties further agrees that it shall
not use the proprietary or confidential information during the Term of this
Agreement or at any time thereafter for any purpose other than the performance
of its obligations under this Agreement. Each party shall take all reasonable
measures necessary to prevent any unauthorized disclosure of the proprietary or
confidential information by any of its employees, agents or consultants.
b. Permitted Disclosures. Nothing herein shall prevent any party, or
any employee, agent or consultant of any party from using, disclosing, or
authorizing the disclosure of any information it receives in connection with
this Agreement which:
(i) is disclosed in order to comply with a judicial order
issued by a court of competent jurisdiction or with government laws or
regulations, in which event, to the extent possible, the receiving
party shall give prior written notice to the disclosing party of the
disclosure as soon as practicable and the receiving party, at the
disclosing party's expense, shall cooperate with the disclosing party
in using all reasonable efforts to obtain an appropriate protective or
comparable confidentiality order;
(ii) is lawfully acquired by the receiving party from a source
which the receiving party reasonably believes is not under any
obligation to the disclosing party regarding disclosure of the
information;
(iii) is already known to the receiving party at the time of
receipt or disclosure, or subsequently becomes publicly available other
than through disclosure by the receiving party in violation of this
Agreement or any other obligation of confidentiality,
(iv) is approved for release by prior written authorization of
the disclosing party; or
(v) is independently developed or formulated by the receiving
party without making use of any proprietary or confidential information
disclosed in connection with this Agreement.
11.15 Further Covenant. The parties hereto agree that, with respect to
their respective obligations hereunder, time is of the essence.
IN WITNESS WHEREOF, the parties hereto have caused this Interim
Management Agreement to be executed by their duly authorized officers.
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Shared Technologies Xxxxxxxxx, Inc.
By:
---------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
GE ResCom, L.P.
By:
---------------------------------------
Xxxxxx X. Xxxxxxx
Title: Vice President, Legal and
Regulatory Affairs
ResCom, Inc.
By:
---------------------------------------
Xxxxxx Xxxx
Title:
POTS, Inc.
By:
---------------------------------------
Xx Xxxxxxx
Title:
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