Exhibit 10.3
SECOND AMENDED AND RESTATED
ESCROW AGREEMENT
This SECOND AMENDED AND RESTATED ESCROW AGREEMENT (as amended and
restated, this "ESCROW AGREEMENT") is entered into as of November 15, 2004, by
and among MOBILEPRO CORP., a Delaware corporation ("PARENT"), DAVEL ACQUISITION
CORP., a Delaware corporation and wholly-owned subsidiary of Parent (the
"BUYER"), DAVEL COMMUNICATIONS, INC., a Delaware corporation (the "COMPANY"),
certain lenders of the Company listed on Exhibit A hereto (collectively, the
"SELLING LENDERS"), Xxxxx Fargo Foothill, Inc., a California corporation, as
agent and representative of the Selling Lenders (the "SELLING LENDERS'
REPRESENTATIVE"), and MELLON INVESTOR SERVICES LLC, a New Jersey limited
liability company, as the escrow agent (the "SUCCESSOR ESCROW AGENT").
RECITALS
A. The Buyer, Parent, the Company, and the Selling Lenders have entered
into a certain Loan Purchase Agreement and Transfer and Assignment of Shares
dated as of September 3, 2004, and amended by the Reimbursement Agreement (as
defined below) (as amended, the "PURCHASE AGREEMENT").
B. Pursuant to Section 1.4 of the Purchase Agreement, the Buyer agreed
for the benefit of the Selling Lenders to deposit, and Parent deposited on the
Buyer's behalf, with the Escrow Agent the sum of $1,000,000 (the "BUYER
DEPOSIT").
C. Parent, the Buyer, the Company, the Selling Lenders and the Escrow
Agent entered into an Amended and Restated Escrow Agreement dated October 18,
2004, pursuant to which the Escrow Agent was to hold the Buyer Deposit in escrow
(the "PRIOR ESCROW AGREEMENT").
D. Subsequently, the Company was made a party to the civil action
captioned, Xxxxxxx v. Cellco Partnership d/b/a Verizon Wireless, et al., Civil
Action No. 04-4303, filed in the United States District Court for the Eastern
District of Pennsylvania (the "LITIGATION").
E. Pursuant to that certain letter agreement dated as of the date
hereof (the "REIMBURSEMENT AGREEMENT"), among Parent, the Buyer, the Company and
the Selling Lenders, the Selling Lenders have agreed to establish an escrow
account for the purpose of reimbursing the Company for any and all losses,
claims, damages, liabilities, costs and expenses, including reasonable
attorneys' fees and expenses of investigation and defense, incurred or suffered
by the Company as a result of the Litigation (collectively, the "REIMBURSABLE
Obligations"). Parent, the Buyer, the Company and the Selling Lenders intend for
funds to be deposited from time to time into such escrow account by the Company
on behalf of the Selling Lenders and for Reimbursable Obligations to be paid
from time to time from such escrow account as provided in this Escrow Agreement.
Except for the deposits to the Escrow Fund with the Escrow Agent as provided in
this Escrow Agreement, the Selling Lenders shall not have any liability, either
jointly or severally, to the Company, Parent or Buyer for any Reimbursable
Obligations.
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F. The parties desire to amend and restate the Prior Escrow Agreement
to continue the escrow account established pursuant to the Prior Escrow
Agreement for the purposes of funding the Reimbursable Obligations.
AGREEMENT
The parties to this Escrow Agreement hereby agree that effective as of the date
first set forth above (the "EFFECTIVE DATE"), the Prior Escrow Agreement shall
be amended and restated to read in its entirety as follows:
1. APPOINTMENT OF ESCROW AGENT. As of the Effective Date, the Escrow
Agent hereby is appointed to act, and the Escrow Agent agrees to act, as escrow
agent as expressly set forth under this Escrow Agreement (the "ESCROW AGENT").
2. ESCROW FUND. The escrow fund (the "ESCROW FUND") shall consist of
the following: (a) $1,000,000 in cash, plus such interest as may have been
earned thereon, invested as authorized herein, through the Effective Date; and
(b) such additional cash as may be deposited into the Escrow Fund from time to
time by the Company on behalf of the Selling Lenders, plus such interest as may
be earned thereon, invested as authorized herein, from the date such amounts are
delivered to the Escrow Agent until the Escrow Fund is disbursed as provided
herein.
3. ADMINISTRATION OF ESCROW FUND. The Escrow Agent shall administer the
Escrow Fund as follows:
(A) DUTIES OF ESCROW AGENT. The Escrow Agent shall: (i) hold
and safeguard the Escrow Fund during the period beginning on the date of this
Escrow Agreement and ending upon the payment of the Escrow Fund as provided
herein (including such period of time as necessary (i) to enable the Escrow
Agent to comply with the notice provisions of Section 3(c)(ii) or Section
3(c)(iii) and (ii) by any Negotiation Period defined in Section 3(e)(i) hereof
and the time period of any arbitration held pursuant to Section 3(e)(ii) hereof)
(the "ESCROW PERIOD"), (ii) treat the Escrow Fund in accordance with the terms
of this Escrow Agreement and not as the property of the Escrow Agent, and (iii)
hold and dispose of the Escrow Fund only in accordance with the terms of this
Escrow Agreement.
(B) INVESTMENT; INTEREST. The Escrow Agent is hereby
authorized and directed to hold the Escrow Fund and shall invest such Escrow
Fund in Class B Shares of the Dreyfus General Money Market Fund. The Escrow
Agent shall have no duty, responsibility or obligation to invest any funds or
cash held in the Escrow Account other than in accordance with this Section 3(b).
Interest accruing on, and any profit resulting from, such investments shall be
distributed with the principal amount of the Escrow Fund as provided in this
Agreement, and all references to the "Escrow Fund" shall be construed to include
any interest then earned. The Escrow Agent shall have no liability or
responsibility for any investment losses, including without limitation any
market loss on any investment liquidated (whether at or prior to maturity) in
order to make a payment required under this Escrow Agreement. The Escrow Agent
may, in making or disposing of any investment permitted by this Escrow
Agreement, deal with itself, in
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its individual capacity, or any of its affiliates, whether or not it or such
affiliate is acting as a subagent of the Escrow Agent or for any third person or
dealing as principal for its own account.
(C) DISBURSEMENT OF ESCROW FUNDS. The Escrow Agent is hereby
directed and authorized to distribute the Escrow Fund to the Selling Lenders
and/or the Company as provided in this Section 3(c).
(I) On the Effective Date, Parent and the Selling
Lenders' Representative shall deliver to the Escrow Agent a certificate signed
by an officer of each of them substantially in the form attached hereto as
Exhibit B-1 (the "DEPOSIT OFFICER'S CERTIFICATE"). Promptly following receipt of
the Deposit Officer's Certificate (but in no event later than three (3) business
days thereafter), the Escrow Agent shall distribute to Parent the sum of
$1,000,000, plus all interest accrued on the Escrow Fund through the Effective
Date.
(II) From and after the Effective Date, subject to
Section 3(d), as long as this Escrow Agreement continues in effect, the Escrow
Agent shall make distributions to the Company from the Escrow Fund from time to
time in respect of Reimbursable Obligations as provided in this paragraph. When
Reimbursable Obligations have been incurred by the Company, the Company shall
deliver to the Escrow Agent a certificate signed by an officer of the Company
substantially in the form attached hereto as Exhibit B-2 (the "REIMBURSEMENT
OFFICER'S CERTIFICATE"). The amount requested by the Company to be paid in
respect of Reimbursable Obligations shall be referred to as the "REIMBURSEMENT."
At the same time, the Company shall deliver to the Selling Lenders'
Representative a copy of the Reimbursement Officer's Certificate, together with
supporting documentation reflecting in reasonable detail the basis for the
requested Reimbursement and the calculation of the Reimbursement. (The Escrow
Agent may conclusively presume that the Company delivered the Reimbursement
Officer's Certificate and supporting documentation to the Selling Lenders'
Representative on the same date that such Reimbursement Officer's Certificate
was delivered to the Escrow Agent.) The Company promptly shall provide to the
Selling Lenders' Representative such invoices, receipts and other documents as
the Selling Lenders' Representative may reasonably request in order to verify
the Company's statements in the Reimbursement Officer's Certificate or the
validity and amount of any Reimbursable Obligations specified therein. In each
instance that the Escrow Agent receives such a Reimbursement Officer's
Certificate, the Escrow Agent shall, within three (3) business days after its
receipt of such Reimbursement Officer's Certificate and at least five (5) days
prior to the proposed distribution from the Escrow Fund, deliver written notice
to the Selling Lenders' Representative of the Escrow Agent's intent to make the
requested Reimbursement from the Escrow Fund ("NOTICE OF INTENT TO DISTRIBUTE TO
COMPANY"). In the event the Escrow Agent delivers such Notice of Intent to
Distribute to Company and the Escrow Agent receives no objection to such Notice
of Intent to Distribute to Company in the form required by Section 3(d) hereof
from the Selling Lenders' Representative within five (5) days after delivery by
the Escrow Agent of the Notice of Intent to Distribute to Company, then the
Escrow Agent hereby is authorized and directed to distribute from the Escrow
Fund the amount of the Reimbursement requested by the Company in the Company
Officer's Certificate for Reimbursement or the balance then constituting the
Escrow Fund if less than the requested Reimbursement. Amounts distributed from
the Escrow Fund to the Company shall be paid by
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check or by wire transfer according to the instructions provided by the Company
in writing to the Escrow Agent.
(III) On the date of entry of a final, non-appealable
order dismissing with prejudice, settling or otherwise terminating (without
right to re-file) the Litigation with respect to the Company (the "TERMINATION
DATE"), the Company and the Selling Lenders' Representative shall deliver to the
Escrow Agent a certificate signed by any officer of each of the Company and the
Selling Lenders' Representative substantially in the form attached hereto as
Exhibit B-3 (the "TERMINATION OFFICERS' CERTIFICATE"). In the event the Escrow
Agent receives such Termination Officer's Certificate, the Escrow Agent shall,
within three (3) business days after its receipt thereof, distribute the entire
amount of the Escrow Fund to the Selling Lenders (less such amount that in the
reasonable judgment of the Company is necessary to satisfy any then pending and
unsatisfied Reimbursable Obligations specified in any Reimbursement Officer's
Certificate delivered to the Escrow Agent prior to the Termination Date). The
amount to be distributed to each of the Selling Lenders shall be stated in the
Termination Officer's Certificate (which amounts shall be in proportion to their
respective interests in the Company Debt, as such interest is reflected for each
Selling Lender in the allocations on Exhibit A hereto). Upon the date on which
all remaining Reimbursable Obligations specified in timely Reimbursement
Officer's Certificates have been paid or otherwise resolved, Selling Lenders'
Representative shall provide written notice to the Escrow Agent for the
distribution of the remaining portion of the Escrow Fund to the Selling Lenders
and, if applicable, to the Selling Lenders' Representative in accordance with
Section 5(c) hereof, as well as the amount to be paid to each such party.
Amounts distributed from the Escrow Fund to the Selling Lenders shall be paid by
wire transfer according to such wire instructions as set forth on Exhibit A for
each Selling Lender (or according to such other wire instructions as a Selling
Lender may subsequently provide in writing to the Escrow Agent).
(D) OBJECTIONS TO DISTRIBUTION. The Escrow Agent shall not
distribute Reimbursements from the Escrow Fund to the Company if it receives a
written objection to its Notice of Intent to Distribute to Company within such
five (5) day period referred to in Section 3(c)(ii) (any such objection, a
"DISPUTE NOTICE"). In the event a Dispute Notice is timely received by the
Escrow Agent, the Escrow Agent shall continue to hold the Escrow Fund pending
resolution of such dispute as provided in Section 3(e) below.
(E) RESOLUTION OF CONFLICTS; ARBITRATION.
(I) If the Escrow Agent receives any Dispute Notice,
it shall promptly send copies of such Dispute Notice to each of the Company and
Parent. Thereafter, the Company and the Selling Lenders' Representative shall
attempt in good faith to agree upon the rights of the respective parties with
respect to the dispute within thirty (30) days after the Escrow Agent's receipt
of the Dispute Notice (the "NEGOTIATION PERIOD"). If the Selling Lenders'
Representative and the Company should so agree during the Negotiation Period, a
memorandum setting forth such agreement, and the manner of distribution from the
Escrow Fund shall be prepared and signed by all such parties and furnished to
the Escrow Agent. The Company and the Selling Lenders hereby agree that any
Reimbursable Obligations not disputed shall be paid from the Escrow Fund even
though certain Reimbursable Obligations continue to be disputed,
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and the Company and the Selling Lenders' Representative shall prepare a
memorandum instructing the Escrow Agent to distribute from the Escrow Fund the
amount of any Reimbursable Obligations that are not then in dispute. The Escrow
Agent shall be entitled to rely conclusively on any such memorandum, shall have
no duty to confirm or verify the validity of such memorandum and is hereby
authorized and directed to distribute the Escrow Fund in accordance with the
terms of such memorandum.
(II) If an agreement has not been reached by the end
of the Negotiation Period with respect to any amount of the requested
Reimbursement, either the Selling Lenders' Representative or the Company may
demand arbitration of the matter. In any event, the matter shall be settled by
arbitration conducted by a single arbitrator, as follows. Within fifteen (15)
days after the delivery of a written demand for arbitration to the other parties
(with a copy to the Escrow Agent), the Company and the Selling Lenders'
Representative shall together select the arbitrator. Failing such agreement, the
Company and/or the Selling Lenders' Representative shall request that an
arbitrator be appointed by the American Arbitration Association. The arbitration
shall be conducted in the city of Cleveland, Ohio. The written decision of the
arbitrator as to the distribution of the Escrow Fund shall be binding and
conclusive upon the parties to this Escrow Agreement, and notwithstanding
anything to the contrary in this Section 3(e), the Escrow Agent shall be
conclusively entitled to act in accordance with such decision and to distribute
the Escrow Fund in accordance with such decision. The arbitrator shall award
reimbursement to the prevailing party in the arbitration of its reasonable
expenses of the arbitration (including costs and reasonable attorneys' fees),
which award shall be paid out of the Escrow Fund in the event that the Company
is the prevailing party within a reasonable time of the Escrow Agent's receipt
of a written notice signed by an officer of each of the Company and the Selling
Lenders' Representative, including the amount of each such expenses and a copy
of the arbitration award. The award of the arbitrator shall be the sole and
exclusive monetary remedy of the parties to this Escrow Agreement and shall be
enforceable in any court of competent jurisdiction. Notwithstanding the
foregoing, any party to this Escrow Agreement shall be entitled to seek
injunctive relief or other equitable remedies from any court of competent
jurisdiction.
(F) ASSUMPTION OF DEFENSE OF THE LITIGATION BY THE SELLING
LENDERS. In the event that the Selling Lenders exercise their right under the
Reimbursement Agreement to participate in or assume and control the defense of
the Litigation, the Selling Lenders shall be entitled to reimbursement from the
Escrow Fund for all costs and expenses, including reasonable attorneys' fees and
expenses of investigation, incurred by on behalf of the Selling Lenders in
connection with such defense. To obtain such reimbursement, the Selling Lenders'
Representative shall promptly inform the Escrow Agent in writing of the Selling
Lenders' decision to exercise their right to participate in or assume and
control the defense of the Litigation and then shall comply with the procedures
set forth in subsections (c) through (e) of this Section 3 in the same manner as
the Company is required to do so in order to obtain cash from the Escrow Fund,
and the Company shall have the same right to object thereto as the Selling
Lenders' Representative in Section 3(d).
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4. RELEASE OF ESCROW FUND. The Escrow Fund shall remain in existence
during the Escrow Period. The Escrow Period shall expire upon the distribution
of the Escrow Fund pursuant to Section 3.
5. SELLING LENDERS' REPRESENTATIVE.
(A) Each Selling Lender hereby (i) consents to the
establishment of the Escrow Fund and (ii) irrevocably authorizes and appoints
Xxxxx Fargo Foothill, Inc., as its true and lawful attorney in fact and agent,
(A) including, without limitation, to give and receive notices and
communications, to authorize payment to the Company of cash from the Escrow Fund
pursuant to Section 3 in satisfaction of Reimbursable Obligations, to object to
such payments, to agree to, negotiate, and enter into settlements and
compromises of, and demand arbitration and comply with orders of courts and
awards of arbitrators with respect to, Reimbursable Obligations, to take all
actions necessary or appropriate in the judgment of the Selling Lenders'
Representative to accomplish the foregoing and to otherwise act in the Selling
Lenders' name, place and stead as contemplated by this Escrow Agreement, and (B)
to execute in its name, and on behalf of the Selling Lender, any agreement,
certificate, instrument and document to be delivered by the Selling Lenders, if
any, in connection with this Escrow Agreement.
(B) No bond shall be required of the Selling Lenders'
Representative. The Selling Lenders' Representative shall be entitled to receive
an aggregate of $10,000 per month (including a pro rated amount for the
remainder of November 2004) from the other Selling Lenders as compensation for
its services hereunder, which compensation shall accrue and be payable as
provided in Section 5(c).
(C) The Selling Lenders' Representative shall not be liable
for any act done or omitted under this Escrow Agreement as the Selling Lenders'
Representative while acting in good faith and in the absence of gross negligence
or willful misconduct. In taking any action under this Escrow Agreement, the
Selling Lenders' Representative shall be entitled to rely on any notice, paper
or other document reasonably believed by it to be genuine, or upon any evidence
reasonably deemed by it, in its good faith judgment, to be sufficient. The
Selling Lenders' Representative may incur and pay expenses to the extent the
Selling Lenders' Representative deems necessary or appropriate for the
performance and fulfillment of its functions, powers and obligations under this
Escrow Agreement, including, without limitation, arbitration fees, court costs
and reasonable attorneys' fees. The Selling Lenders shall severally protect,
defend, indemnify and hold harmless the Selling Lenders' Representative from and
against any loss, liability or expense incurred by the Selling Lenders'
Representative without gross negligence, bad faith or willful misconduct on the
part of the Selling Lenders' Representative and arising out of or in connection
with the acceptance or administration of the Selling Lenders' Representative's
duties under this Escrow Agreement, including the reasonable fees and expenses
of any legal counsel retained by the Selling Lenders' Representative. The
Selling Lenders' Representative may consult with counsel in connection with its
duties under this Escrow Agreement and shall be fully protected in any act
taken, suffered or permitted by it in good faith in accordance with the advice
of counsel. After all claims for Reimbursable Obligations set forth in any
Reimbursement Officer's Certificates delivered to the Escrow Agent pursuant to
this Escrow Agreement have been satisfied, with the consent of the
majority-in-
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interest of the Company Debt (as such term is defined in the Purchase Agreement
and as such interest is reflected for each Selling Lender in the allocations on
Exhibit A hereto), the Selling Lenders' Representative is authorized to and may
direct the Escrow Agent in writing to pay to the Selling Lenders' Representative
from the Escrow Fund on the Termination Date an amount stated in such written
notice, which shall be an amount equal to the sum of (i) all unpaid
out-of-pocket expenses incurred by the Selling Lenders' Representative in
connection with its service as such and (ii) all accrued and unpaid compensation
to which the Selling Lenders' Representative is entitled under Section 5(b). The
undertaking in this Section 5(c) shall survive the distribution of the Escrow
Fund and the resignation or replacement of the Selling Lenders' Representative.
(D) A decision, act, consent or instruction of the Selling
Lenders' Representative shall constitute a decision of all of the Selling
Lenders and shall be final, binding and conclusive upon each Selling Lender, and
all of the parties hereto may rely upon any such decision, act, consent or
instruction of the Selling Lenders' Representative as being the decision, act,
consent or instruction of each and every Selling Lender. The Company, the Buyer,
Parent and the Escrow Agent and any other persons are hereby relieved from any
liability to any person for any acts done by them in accordance with such
decision, act, consent or instruction of the Selling Lenders' Representative
under this Escrow Agreement.
(E) The Selling Lenders' Representative may resign at any
time. Upon such resignation, the Selling Lenders who held at least a
majority-in-interest of the Company Debt (as such term is defined in the
Purchase Agreement, and as such interest is reflected for each Selling Lender in
the allocations on Exhibit A hereto) shall appoint a new Selling Lenders'
Representative to replace such resigning Selling Lenders' Representative with
the same powers and duties as such resigning Selling Lenders' Representative.
6. ESCROW AGENT.
(A) The Company, the Selling Lenders' Representative, the
Buyer and Parent acknowledge and agree that the Escrow Agent (i) shall be
obligated only for the performance of such duties as are specifically set forth
in this Escrow Agreement with respect to the Escrow Agent (and no implied
obligations); (ii) shall not be obligated to expend or risk its own funds or
take any legal or other action under this Escrow Agreement that would, in its
reasonable judgment, result in a material expense or liability unless the Escrow
Agent shall have been furnished with indemnity acceptable to it; and (iii) may
conclusively rely on and shall be protected in acting or refraining from acting
upon the most recent version of any written notice, instruction, instrument,
statement, request or document furnished to it under this Escrow Agreement and
reasonably believed by it to be genuine and to have been signed or presented by
the proper person, and shall have no responsibility for determining the accuracy
or validity thereof. Without limiting the foregoing, the Escrow Agent shall not
be subject to, nor be required to comply with or determine if any person or
entity has complied with, the Purchase Agreement or any other agreement between
and among the parties hereto, even though reference thereto may be made in this
Agreement, or to comply with any notice, instruction, direction, request or
other communication, paper or document other than as expressly set forth in this
Agreement.
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(B) The Escrow Agent is hereby expressly authorized to comply
with and obey any order, judgment or decree of any court of competent
jurisdiction or a written decision of arbitrators. If the Escrow Agent shall
obey or comply with any such order, judgment or decree or written decision of
arbitrators, the Escrow Agent shall not be liable to any of the parties to this
Escrow Agreement or to any other person or entity by reason of such compliance,
notwithstanding any such order, judgment, decree or written decision being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
(C) The Escrow Agent shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or
delivering or purporting to execute or deliver this Escrow Agreement or any
documents or papers deposited or called for under this Escrow Agreement.
(D) The Escrow Agent shall not be liable for the expiration of
any rights under any statute of limitations with respect to this Escrow
Agreement or any documents deposited with the Escrow Agent.
(E) The Escrow Agent may engage or be interested in any
financial or other transaction with the Company or any party hereto or affiliate
thereof, and may act on, or as depositary, trustee or agent for, any committee
or body of holders of obligations of such party or affiliate, as freely as if it
were not the Escrow Agent hereunder.
(F) The Escrow Agent shall not incur any liability for not
performing any act, duty, obligation or responsibility by reason of any
occurrence beyond the control of the Escrow Agent (including without limitation
any act or provision of any present or future law or regulation or governmental
authority, any act of God, war, civil disorder or failure of any means of
communication).
(G) Neither the Escrow Agent nor any of its directors,
officers or employees shall be liable to the Company, Parent, the Buyer, the
Selling Lenders' Representative, the Selling Lenders or any other person or
entity for any error in judgment or action taken, suffered or omitted to be
taken by it or any of its directors, officers or employees under this Escrow
Agreement except in the case of gross negligence, bad faith or willful
misconduct (each as finally determined by a court of competent jurisdiction). In
no event shall the Escrow Agent be liable for acting in accordance with a
notice, instruction, direction, request or other communication, paper or
document signed by an officer of Parent and the Selling Lenders' Representative
or otherwise in accordance with this Escrow Agreement. Anything to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for special,
punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including, but not limited to, lost profits), even if the Escrow
Agent has been advised of the likelihood of such loss or damage. Any liability
of the Escrow Agent under this Escrow Agreement shall be limited to the amount
of fees paid to the Escrow Agent under this Agreement. Subject to Section 7
below, Parent covenants and agrees to indemnify the Escrow Agent and hold it
harmless from and against any fee, loss, claim, cost, penalty, fine, settlement,
damages, liability or expense (including reasonable attorney's fees and
expenses) (an "ESCROW LOSS") incurred by the Escrow Agent arising out of or in
connection with this Escrow Agreement, including but not limited to, the
execution and
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delivery of this Escrow Agreement, the Escrow Agent's performance of its
obligations in accordance with the provisions of this Escrow Agreement or with
the administration of its duties under this Escrow Agreement, unless such Escrow
Loss shall arise out of or be caused by the Escrow Agent's gross negligence, bad
faith or willful misconduct (each as finally determined by a court of competent
jurisdiction).
(H) Parent agrees to indemnify and hold the Escrow Agent
harmless from and against any taxes and governmental charges, additions for late
payment, interest, penalties and other expenses, that may be assessed against
the Escrow Agent on any payment or other activities under this Escrow Agreement
unless any such tax, governmental charge, addition for late payment, interest,
penalty or other expense shall arise out of or be caused by the gross
negligence, bad faith or willful misconduct of the Escrow Agent (each as finally
determined by a court of competent jurisdiction).
(I) The costs and expenses incurred in enforcing any right of
indemnification set forth in this Escrow Agreement shall be allocated to Parent.
(J) The Escrow Agent may resign at any time with at least
thirty (30) days' prior written notice to Parent, the Company and the Selling
Lenders' Representative; provided, however, that no such resignation shall
become effective until the appointment of a successor escrow agent, which shall
be accomplished as follows. Parent, the Company and the Selling Lenders'
Representative shall use their commercially reasonable best efforts to mutually
agree upon a successor agent within thirty (30) days after receiving such
notice. If the parties fail to agree upon a successor escrow agent within such
time, the Selling Lenders (acting by agreement of Selling Lenders holding a
majority-in-interest of the Company Debt (as such term is defined in the
Purchase Agreement, as such interest is reflected for each Selling Lender in the
allocations on Exhibit A hereto)), with the consent of each of Parent and the
Company (which shall not be unreasonably withheld), shall have the right to
appoint a successor escrow agent. The successor escrow agent selected in the
preceding manner shall execute and deliver an instrument accepting such
appointment, and it shall thereupon be deemed to be the Escrow Agent under this
Escrow Agreement and it shall without further acts be vested with all the
estates, properties, rights, powers and duties of the predecessor Escrow Agent
as if originally named as Escrow Agent. The predecessor Escrow Agent shall
provide the successor Escrow Agent with such records relating to this Escrow
Agreement as the successor Escrow Agent may reasonably request to perform its
duties under this Agreement. If no successor escrow agent is named, the Escrow
Agent may apply to a court of competent jurisdiction for the appointment of a
successor escrow agent. Thereafter, the predecessor Escrow Agent shall be
discharged from any further duties and liabilities under this Escrow Agreement.
The provisions of Sections 6(g) and 6(h) hereof shall survive the resignation or
removal of the Escrow Agent or the termination of this Escrow Agreement.
(K) The Escrow Agent shall be under no duty to institute or
defend any proceeding unless the subject of such proceeding is part of its
duties under this Agreement. In the event of any dispute between the parties to
this Escrow Agreement, or between any of them and any other person or entity,
resulting in adverse claims or demands being made upon any of the Escrow Funds,
or in the event that the Escrow Agent, in good faith, is in doubt as to what
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action it should take under this Agreement, the Escrow Agent may, at its option,
file a suit as interpleader in a court of appropriate jurisdiction, or refuse to
comply with any claims or demands on it, or refuse to take any other action
under this Agreement, so long as such dispute shall continue or such doubt shall
exist. The Escrow Agent shall be entitled to continue so to refrain from acting
until (i) the rights of all parties have been fully and finally adjudicated by a
court of appropriate jurisdiction or (ii) all differences and doubt shall have
been resolved by agreement among all of the interested parties, and the Escrow
Agent shall have been notified thereof in a writing signed by all such parties.
The rights of the Escrow Agent under this Section are cumulative of all other
rights which it may have by law or otherwise.
7. FEES, EXPENSES AND TAXES. The Company and Parent, jointly and
severally, agree to pay or reimburse the Escrow Agent for its normal services
under this Escrow Agreement in accordance with the fee schedule attached to this
Escrow Agreement as Exhibit C (collectively, the "SCHEDULED EXPENSES"), and the
Escrow Agent shall be entitled to reimbursement from the Company and Parent upon
thirty (30) days' written notice for all Scheduled Expenses incurred in
connection with this Escrow Agreement, and payment of any legal fees and
expenses incurred by the Escrow Agent in connection with the execution, delivery
and amendment, if any, of this Escrow Agreement, the Escrow Agent's performance
of its obligations in accordance with the provisions of this Escrow Agreement,
the Escrow Agent's administration of its duties under this Escrow Agreement, and
any expenses incurred by the Escrow Agent in connection with the resolution of
any claim by any party under this Escrow Agreement. Taxes incurred with respect
to the earnings of the Escrow Fund and payments made under this Escrow Agreement
shall be paid by the party to whom such earnings are distributed (or to be
distributed) or to whom such payment is made.
8. MISCELLANEOUS.
(A) AMENDMENTS AND WAIVERS. Any term of this Escrow Agreement
may be amended or waived with the written consent of Parent, the Company, the
Escrow Agent and the Selling Lenders' Representative, or their respective
permitted successors and assigns. Any amendment or waiver effected in accordance
with this Section 8(a) shall be binding upon the parties and their respective
successors and assigns.
(B) SUCCESSORS AND ASSIGNS. The terms and conditions of this
Escrow Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties to this Escrow Agreement.
Nothing in this Escrow Agreement, express or implied, is intended to confer upon
any party other than the parties to this Escrow Agreement or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Escrow Agreement, except as expressly provided in this Escrow
Agreement.
(C) GOVERNING LAW; JURISDICTION; VENUE. This Escrow Agreement
and all acts and transactions pursuant to this Escrow Agreement and the rights
and obligations of the parties shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law; provided, however, that all provisions regarding
the rights, duties and obligations of the Escrow Agent shall be governed by and
construed in accordance with the laws of the state of New York applicable to
contracts made and to be performed entirely within that state.
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(D) COUNTERPARTS. This Escrow Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(E) HEADINGS. The headings used in this Escrow Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Escrow Agreement.
(F) NOTICES. Any notice required or permitted by this Escrow
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or three days after being deposited in the regular mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address or facsimile number as set forth
below, or as subsequently modified by written notice.
If to Parent or Buyer:
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx, President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000)-000-0000
If to the Selling Lenders' Representative:
Xxxxx Fargo Foothill, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxx Xxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Company:
Davel Communications, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxx Xxxxxx & Parks LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: F. Xxxxxx X'Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Escrow Agent:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000-0000
Attention: Xx Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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With a copy to:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Selling Lenders, to the names and addresses for each
Selling Lender as set forth in Exhibit A to this Agreement or as subsequently
provided by such Selling Lender to the other parties in writing. The parties
shall be entitled to rely on such writing in sending notices and shall not be
liable for sending notices to the address stated in such writing rather than to
the address set forth in Exhibit A to this Agreement.
(G) SEVERABILITY. If one or more provisions of this Escrow
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith, in order to maintain the economic
position enjoyed by each party as closely as possible to that under the
provision rendered unenforceable. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Escrow Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(H) ENTIRE AGREEMENT. This Escrow Agreement constitutes the
entire agreement between the parties pertaining to the subject matter of this
Escrow Agreement, and supercedes all prior agreements and understandings
(written or oral) of the parties with respect to the subject matter of this
Escrow Agreement.
(I) ADVICE OF LEGAL COUNSEL. Each party acknowledges and
represents that, in executing this Escrow Agreement, it has had the opportunity
to seek advice as to its legal rights from legal counsel and that the person
signing on its behalf has read and understood all of the terms and provisions of
this Escrow Agreement. This Escrow Agreement shall not be construed against any
party by reason of the drafting or preparation of this Escrow Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the
date first above written.
PARENT:
MOBILEPRO CORP.
By: /S/ XXX X. XXXXXX
--------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------------
Its: President and Chief Executive Officer
-------------------------------------------
THE BUYER:
DAVEL ACQUISITION CORP.
By: /S/ XXX X. XXXXXX
--------------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------------
Its: President and Chief Executive Officer
-------------------------------------------
THE COMPANY:
DAVEL COMMUNICATIONS, INC.
By: /S/ XXXXX X. XXXXX
--------------------------------------------
Name: Xxxxx X. XxXxx
------------------------------------------
Its: President
-------------------------------------------
THE ESCROW AGENT:
MELLON INVESTOR SERVICES LLC,
as Escrow Agent
By: /S/ XXXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Its:
-------------------------------------------
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THE SELLING LENDERS' REPRESENTATIVE:
XXXXX FARGO FOOTHILL, INC.
as Selling Lenders' Representative
By: /S/ XXX XXX
--------------------------------------------
Name: Xxx Xxx
------------------------------------------
Its: Vice President
-------------------------------------------
THE SELLING LENDERS:
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, LLC,
as General Partner
By: /S/ XXXXX XXXXX
--------------------------------------------
Name: Xxxxx Xxxxx
------------------------------------------
Its: Managing Director
-------------------------------------------
ABLECO FINANCE LLC
By: /S/ XXXXX XXXXX
--------------------------------------------
Name: Xxxxx Xxxxx
------------------------------------------
Its: S. V. P.
-------------------------------------------
XXXXX FARGO FOOTHILL, INC.
By: /S/ XXX XXX
--------------------------------------------
Name: Xxx Xxx
------------------------------------------
Its: Vice President
-------------------------------------------
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FOOTHILL PARTNERS III, L.P.
By: /S/ XXXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------------
Its: Managing General Partner
-------------------------------------------
ARK CLO 2000-1 LIMITED
By: Patriarch Partners, LLC, its
Collateral Manager
By: /S/ XXXX XXXXXX
--------------------------------------------
Name: Xxxx Xxxxxx
------------------------------------------
Its: Manager
-------------------------------------------
BNP PARIBAS
By: /S/ XXXXX XXXXXXXXX XXXXX /S/ XXXXXXXX XXXX
--------------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxx
------------------------------------------
Its: Vice President Director
-------------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------------
Its: Senior Vice President
-------------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /S/ XXXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Its: Vice President
-------------------------------------------
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AVENUE SPECIAL SITUATIONS FUND II, L.P.
By: /S/ XXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------------
Its: Member
-------------------------------------------
By: Avenue Capital Partners II, LLC,
General Partner
By: GL Partners II, LLC, Managing Member
of the General Partner
XXXXXX XXXXXXX PRIME INCOME TRUST
By: /S/ XXXXX XXXX
--------------------------------------------
Name: Xxxxx Xxxx
------------------------------------------
Its: Vice President
-------------------------------------------
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