Purchase Agreement
Exhibit
10.1
Purchase
Agreement
__________________________________________________
__________________________________________________
effective
as of August 30, 2007
between
DAVEL
COMMUNICATIONS, INC.
AS
SELLER,
AND
STERLING
PAYPHONES, LLC
AS
BUYER
This
ASSET
PURCHASE AGREEMENT
(this
“Agreement”), effective as of August 30, 2007, is made and entered into by and
between Sterling Payphones, LLC, a Delaware limited liability company with
a
mailing address at X.X. Xxx 0000, Xxxxxxxxxx Xxxxxxx, XX 00000 (“Buyer”) and
Davel Communications, Inc., a Delaware corporation, with its principal business
located at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000
(“Seller”).
WHEREAS,
Seller
desires to sell and assign to Buyer, and Buyer desires to purchase from Seller,
free and clear of all liens, claims and encumbrances, except as otherwise
provided herein, and on the terms and subject to the conditions set forth in
this Agreement, the assets of Seller identified in Article I of this Agreement;
NOW,
THEREFORE,
in
consideration of the mutual covenants, representations, warranties and
agreements and the conditions set forth in this Agreement, Buyer and Seller
hereby agree as follows:
Article
1. Transfer
of Assets
1.1. Transfer
of Assets.
On the
terms and subject to the conditions set forth in this Agreement, Seller shall,
at the Closing (as hereinafter defined), sell, transfer and assign to Buyer,
and
Buyer shall purchase and acquire from Seller free and clear of all liens, claims
and encumbrances, except as otherwise provided herein, all of Seller’s right,
title and interest, as of the Closing Date (as hereinafter defined), in the
assets of Seller (collectively, the “Acquired Assets”) identified
below:
(a) Subject
to Sections 2.3 and 2.4 hereof, the agreements entered into by Seller with
respect to the locations at which the Telephones (as hereinafter defined) are
or
are to be installed and maintained, whether such agreements be in the form
of
contracts, licenses, leases or otherwise, written and oral, and, if not
assignable, the right to act on Seller’s behalf to cause the existing agreement
to be cancelled and a new agreement in favor of Buyer to be substituted
therefor, (collectively, the “Location Contracts”). The attached Schedule 1 to
this Agreement identifies specifically the Location Contracts and their sites
and automatic number identifier (“ANI”) associated with each Telephone installed
pursuant to the applicable Location Contract to be acquired by
Buyer;
(b) All
presently installed and existing pay telephones, enclosures and keys
(collectively, the “Telephones”) installed pursuant to the Location Contracts,
which Telephones number approximately 21,405, including telephone booths,
stations, pedestals, apparatus, fixtures, signage, circuit boards, coin banks,
locks and any other equipment physically connected to or installed in or with
the Telephones;
(c) The
local
access connection purchased by Seller from the local exchange carrier (“LEC”)
(or competitive local exchange carrier, “CLEC”) pursuant to the terms specified
in tariffs filed with the appropriate state regulatory agencies and which are
attributable to the Telephones and Location Contracts identified on Schedule
1
to this Agreement (the “Local Access”) together with all of the telephone
numbers associated with each of the Telephones provided,
however, that
Buyer shall not be required to continue or maintain service with any LEC or
CLEC
except as otherwise provided in Section 9.2(c) and 9.2 (d) hereof;
(d) All
coin
in the Telephones (the “Coin in the Box”) as of the Closing Date (the value of
which shall be estimated and paid at closing with a subsequent adjustment
thereto paid as a post-closing adjustment pursuant to Section 3.3(a)
hereof);
(e) Spare
parts consisting of telephones, pedestals, apparatus, fixtures, circuit boards,
coin banks, locks and other parts shown on Schedule 1.1(e) (the “Inventory”)
including the Inventory located at the premises maintained by TU, LLC, together
with the oral agreement by and between Seller and TU, LLC extending on a month
to month basis the contract to warehouse and refurbish equipment so maintained,
a copy of which is annexed as Schedule 1.1(e) to the Disclosure Schedule (the
“TU Agreement”);
(f) Sublease
dated September 18, 2003 by and between BP America, Inc., as sublandlord, and
Seller, as subtenant, of Seller’s offices and supporting space in the building
known as 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 (the “Premises”) a copy of
which is annexed as Schedule 1.1(f)-1 to the Disclosure Schedule ((the
“Cleveland Lease”) and the written or oral agreements for infrastructure support
services copies of which, if written, are annexed as Schedule 1.1 (f)-2 to
the
Disclosure Schedule or, if oral, summaries of the material terms of which are
annexed as Schedule 1.1(f)-3 to the Disclosure Schedule (the “Support
Agreements”);
(g) All
of
Seller’s office furniture, fixtures and equipment, including computers and
supporting software, used by Seller at the Premises as more particularly
described in Schedule 1.1(g) of the Disclosure Schedule (the “Furniture,
Fixtures and Equipment”); and
(h) All
polling equipment and supporting software as more particularly described in
Schedule 1.1(h) of the Disclosure Schedule (the “Polling
Equipment”).
Article
2.
Excluded Assets and Assumption of Liabilities
2.1. Excluded
Assets.
It is
intended that Buyer shall purchase only the Acquired Assets. The following
assets (the “Excluded Assets”) are specifically not included in the Acquired
Assets, and Seller shall not sell to Buyer and Buyer shall not purchase from
Seller the following:
(a) Contracts
Not Acquired.
Any
rights to and under any contracts, leases, agreements (other than the Location
Contracts, Cleveland Lease, the Support Agreements and TU Agreement) or other
documents or instruments not expressly acquired by Buyer pursuant to Section
1.1, and specifically, the ten (10) Location Contracts, ANIs and Telephones
identified on Schedule 2.1(a);
(b) Cash
and Cash Equivalents.
All cash
and cash equivalents other than Coin in the Box.
(c) Dial
Around Compensation.
Any and
all rights to receive dial around compensation with respect to the Telephones
for dates prior to the Closing Date, regardless of the timing of the
collections; and
(d) Other
Regulatory Receipts and Litigation Awards.
Any and
all rights to apply for and receive retroactive regulatory reimbursements,
including but not limited to, those reimbursements or refunds associated with
the end user common line charge, new services test, dial around compensation
or
any other federal, state or local regulatory refunds that may be attributable
to
the Telephones for periods prior to the Closing Date, regardless of when such
receipts are received.
2
2.2. Assumption
of Debts, Liabilities and Obligations of Seller.
Buyer
will assume and undertake to perform and pay (i) all of the debts, liabilities
and obligations of Seller arising under the Cleveland Lease, the Support
Agreements and TU Agreement from and after the Closing Date, and (ii) Seller’s
obligations under the TU Agreement arising prior to Closing but only to the
extent they do not exceed $50,000. Buyer will not assume or undertake to perform
or pay any other debt, liability or obligation of Seller of any kind whatsoever
except for the Miscellaneous Obligations (as hereinafter defined). The debts,
liabilities and obligations of Seller to be assumed by Buyer pursuant to this
Agreement are hereinafter called the "Assumed Liabilities".
2.3. Miscellaneous
Obligations.
Seller
shall assign and Buyer shall assume the debts, liabilities and obligations
of
Seller identified on Schedule 2.3 (the “Miscellaneous
Obligations”).
2.4. Non-Assumed
Liabilities. Buyer
shall not assume or become liable to pay, perform or discharge any liability
or
obligation of the Seller other than the Assumed Liabilities (“Non-Assumed
Liabilities”).
2.5. Employees.
Buyer
may
offer employment, effective on the first business day after the Closing Date,
to
such employees of Seller, and upon such terms and conditions, as Buyer may
determine, in its sole discretion. Seller hereby agrees to terminate the
employment of those employees who accept Buyer’s offer of employment, effective
on the Closing Date. In connection with those Employees so employed by Buyer
(the “Retained Employees”), Buyer shall assume the amount of any vacation and
personal time liability recorded on Seller’s books with respect to the Retained
Employees. On or before the Closing Date, Buyer shall provide Seller with a
list
of the names of the Retained Employees. Immediately following the processing
by
Seller of payment of the final wages earned by the Retained Employees for
periods up to and including the Closing Date, Seller shall provide Buyer with
a
list of the amounts of accrued vacation and personal time owed to the Retained
Employees, which liability shall be assumed by Buyer (the “Accrued Vacation
Liability”). To the extent the Accrued Vacation Liability is used by, or paid
to, the Retained Employees at any time Buyer may seek reimbursement for such
amounts so used or paid as a Claim (as hereinafter defined) in accordance with
the Section 12.4 and the terms of the Indemnification Escrow Agreement. Seller
shall be solely responsible for ensuring compliance with the WARN Act (to the
extent applicable), payment of accrued vacation and paid time off leave for
employees other than the Retained Employees and any other obligations of Seller
in respect of all its employees other than any obligations in respect of the
Accrued Vacation Liability.
Article
3.
Purchase Price
3.1. Amount.
The
purchase price (the “Purchase Price”) for the Assets shall be paid in cash on
the Closing Date and shall be Three Million One Hundred Twenty Thousand Nine
Hundred Dollars ($3,120,900), subject to the closing adjustments provided in
Section 3.2. The Purchase Price shall be paid as follows:
3
(a) On
the
signing of this Agreement, the sum of Three Hundred Thousand Dollars ($300,000)
by good check payable to payable to Seyfarth Xxxx, LLP, as Escrow Agent, subject
to collection, the receipt or which is hereby acknowledged, to be held in escrow
and released pursuant to the Downpayment Escrow Agreement annexed hereto as
Exhibit A (the “Downpayment”);
(b) On
the
Closing Date, the sum of Five Hundred Thousand Dollars ($500,000) in immediately
available funds by bank check payable to the Escrow Agent or by wire transfer
for credit to the Escrow Agent to an account designated by the Escrow Agent
to
be held in escrow for twelve months after the Closing Date (the “Escrow Period”)
and applied in accordance with the Indemnification Escrow Agreement annexed
hereto as Exhibit B.;
(c) On
the
Closing Date and to the extent invoiced and processed prior to Closing, the
amount of Key Provider Obligations (as hereinafter defined) shall be paid by
bank checks payable to each key provider or as otherwise directed by the
provider;
(d) On
the
Closing Date an amount equal to $700,000 in immediately available funds by
bank
check payable to the Escrow Agent or by wire transfer for credit to the Escrow
Agent to be held in escrow to secure the payment of invoices not yet received
and processed by Seller at Closing in connection with the Key Provider
Obligations to be held in escrow for a period not to exceed sixty (60) days
and
applied in accordance with the Key Provider Escrow Agreement annexed hereto
as
Exhibit “E”;
(e) On
the
Closing Date, an amount equal to the broker commission set forth in Paragraph
5.4 in immediately available funds by bank check payable to Alliance Payphones,
Inc. or by wire transfer for credit to the account of Alliance Payphones, Inc.;
and
(f) On
the
Closing Date, the remaining balance of the Purchase Price (as adjusted pursuant
to Section 3.2) in
immediately available funds by bank check payable to Seller or by wire transfer
for credit to Seller in accordance with the wire transfer instruction on
Schedule 3.1(d).
3.2. Closing
Adjustments. The following items shall be adjusted at Closing:
| 1. |
the
Estimated Coin; and
|
| 2. |
the
Cleveland Lease rent.
|
3.3. Post-Closing
Payments and Adjustments.
(a) Immediately
prior to the Closing, Seller shall electronically poll the Telephones and
prepare a report in reasonable detail identifying the aggregate amount of Coin
in the Box as of the Closing Date, subject to the review and reasonable approval
of Buyer (the “Polling Report”). Ninety-nine percent (99%) of the amount of the
Coin in the Box as shown on the Polling Report (the “Estimated Coin”) shall be
added to the Purchase Price. [At the Closing, Seller shall be entitled to
payment of the Estimated Coin, and an adjustment therefore shall be made as
herein provided.] As of the Closing Date, Seller shall poll the Telephones
and
determine the Coin in the Box and (the “Closing Date Polled Coin”) and shall
calculate the difference between the Estimated Coin and ninety-nine percent
(99%) of the Closing Date Polled Coin (the “Actual Coin”). The difference
between the Estimated Coin and the Actual Coin shall be paid to the Seller
or
the Buyer, as the case may be, within fifteen (15) days following the Closing
Date.
4
(b) Within
sixty (60) days following the Closing Date, Seller shall provide Buyer with
a
list identifying in reasonable detail the Local Access invoices paid by Seller
for service provided by the local exchange carriers (or competitive local
exchange carriers) relating to the Telephones for periods after the Closing
Date
(the “Prepaid Local Access Fees” and the “Prepaid Local Access Fee Report”).
Buyer shall have fifteen (15) days after receipt of the Prepaid Local Access
Fee
Report to challenge the validity of any amount contained therein. In the event
of a dispute, the parties hereto will use reasonable efforts to expeditiously
resolve the amount of any such dispute. Buyer shall pay Seller an amount equal
to the aggregate amount of the Prepaid Local Access Fees within twenty (20)
days
following receipt of the Prepaid Local Access Fee Report. Payments made to
Seller pursuant to this Section 3.3 (a) and (b) shall be made via wire transfer
in accordance with the instructions set forth on Schedule 3.1(d).
(c) Seller
and Buyer agree that Seller shall retain the right to any and all revenue
generated by the Telephones up to and including the Closing Date and shall
be
responsible for and shall pay any and all expenses related to the operation
of
the Telephones up to and including the Closing Date. Seller and Buyer agree
that
Buyer shall retain the right to any and all revenue generated by the Telephones
after the Closing Date and shall be responsible for and shall pay any and all
expenses related to the operation of the Telephones after the Closing Date.
Buyer agrees to program the Telephones on the evening of the Closing Date to
cause the Telephones to utilize an inter-exchange carrier provider of Buyer’s
choice for long distance and operator services. Notwithstanding the foregoing,
in the event the Telephones are not programmed in accordance with the foregoing
sentence and as a result Seller receives any revenue or incurs any expense
attributable to the Telephones for a date following the Closing Date, Seller
shall forward such revenue to Buyer within ten business days following receipt
of said revenue and Buyer shall reimburse Seller for any such expense within
ten
business days following receipt of reasonable evidence to support the incurrence
of such expense. In addition, (i) Seller shall promptly reimburse Buyer the
amount of all Key Provider Obligations and LEC and CLEC charges that Buyer
must
pay after Closing in respect of periods up to and including the Closing Date
and
(ii) Seller shall promptly forward to Buyer all other revenue received by Seller
in respect of periods after the Closing Date, including revenue paid by location
owners in respect of semi-public Telephones.
(d) On
the
last day of the calendar quarter following the Closing Date, Buyer agrees to
properly submit the necessary data to the appropriate clearing house in order
that dial around compensation (“DAC”) may be collected by the parties on the
Telephones for such calendar quarter. Notwithstanding the foregoing, in the
event the Closing Date occurs on the last day of the calendar quarter, Seller
agrees that it shall be responsible to make the foregoing submission. The
parties hereto understand and acknowledge that the DAC for the entire calendar
quarter may be paid to Buyer from the clearing houses. Buyer agrees to forward
any monies collected for DAC for periods prior to or on the Closing Date,
determined on a pro-rata basis based upon the number of days in the quarter,
to
Seller within ten business days following receipt of such monies. In the event
the DAC for the entire calendar quarter which includes the Closing Date is
paid
to Seller from the clearing houses, Seller agrees to forward any monies
collected for DAC for periods after the Closing Date to Buyer within ten (10)
business days following receipt of such monies.
5
3.4. Allocation
of Purchase Price.
The
parties have made a good faith determination that no portion of the purchase
price shall be allocated to goodwill or intangible assets and that the entire
purchase price shall be allocated to the Telephones and related tangible
personal property.
The
allocation in this Section 3.4 shall be conclusive and binding upon Seller
and
Buyer for all purposes. Seller and Buyer shall not file any tax return or other
document with, or make any statement or declaration to, any Legal Authority
that
is inconsistent with such allocation.
Article
4.
Closing
4.1. Closing.
Subject
to the prior satisfaction of the conditions set forth in Article 9 of this
Agreement, the closing of the transactions contemplated by this Agreement (the
“Closing”) will take place via email, fax, mail and overnight courier on August
31, 2007, or alternatively, to the extent that the conditions set forth in
Article 9 hereof have not been satisfied by such date, then the Closing shall
occur at such later date as agreed to by the parties that is within five (05)
days after the conditions of Article 9 have been satisfied. The date on which
the Closing occurs is referred to herein as the “Closing Date,” and the Closing
shall be deemed effective as of 11:59 p.m, eastern standard time, on the Closing
Date.
4.2. General
Procedure.
At the
Closing, each party shall deliver to the party entitled to receipt thereof
the
documents required to be delivered pursuant to Article 9 hereof and such other
documents, instruments and materials (or complete and accurate copies thereof,
where appropriate) as may be reasonably required in order to effectuate the
intent and provisions of this Agreement, and all such documents, instruments
and
materials shall be satisfactory in form and substance to counsel for the
receiving party. The conveyance, transfer, assignment and delivery of the
Acquired Assets shall be effected by Seller’s execution and delivery to Buyer of
a xxxx of sale substantially in the form attached hereto as Exhibit C (the
“Xxxx
of Sale”) and such other instruments of conveyance, transfer, assignment and
delivery as Buyer shall reasonably request to cause Seller to transfer, convey,
assign and deliver the Acquired Assets to Buyer, free and clear of liens, claims
and encumbrances.
4.3. Agency
Agreement.
At the
Closing, Seller and Buyer shall enter into an Agency Agreement (the
“Agency
Agreement"),
in
mutually acceptable form and substance, pursuant to which the Seller shall
appoint the Buyer as its agent to operate the Telephones and collect DAC until
all required Authorizations (as hereinafter defined) are obtained. Buyer may
cause subcontractors of its choice to service, maintain, collect coin and
operate the Telephones. The Agency Agreement shall terminate as to each
Telephone on such date as Buyer shall have received such Authorizations as
may
be required as to such Telephone. Buyer and Seller shall use commercially
reasonable efforts to obtain the Authorizations. Buyer shall bear all costs
and
expenses necessary to obtain the Authorizations except to the extent such costs
or expenses relate to periods prior the Closing Date.
Article
5.
Representations and Warranties of Seller
Seller
hereby represents and warrants to Buyer that, except as set forth in the
Disclosure Schedule, delivered by Seller to Buyer on the date hereof (the
“Disclosure Schedule”) (which Disclosure Schedule sets forth the exceptions to
the representations and warranties contained in this Article 5):
6
5.1. Incorporation
and Corporate Power.
Seller
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and is qualified to do business and has all
requisite corporate power and authority to own and operate the Acquired Assets
and to carry on its business as now conducted.
5.2. Execution,
Delivery; Valid and Binding Agreement.
The
execution, delivery and performance of this Agreement by Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Seller, and except as otherwise set
forth in the Disclosure Schedule, no other proceedings on its part are necessary
to authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly executed and delivered by Seller and, assuming that
this
Agreement is the valid and binding agreement of Buyer, constitutes the valid
and
binding obligation of Seller, enforceable in accordance with its terms, except
as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors’ rights or by general principles of
equity.
5.3. Good
Condition.
Except
as hereinafter provided, the equipment being sold to Buyer is in “as is”
condition with no representation or warranty as to the condition thereof. All
Acquired Assets of the Seller being conveyed to the Buyer hereunder are in
good
working order, reasonable wear and tear excepted, and are usable and saleable
in
the ordinary course of business. All Telephones include a coin bank, a lock
and
an enclosure for each Telephone, and a pedestal for each Telephone that is
not
mounted to the outside of a building or a wall inside a building.
5.4. Brokerage.
No
third party except Alliance Payphones, Inc. shall be entitled to receive any
brokerage commissions, finder’s fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of Seller.
Seller shall promptly pay Alliance Payphones, Inc. all such compensation due
to
it and shall indemnify and hold Buyer harmless from and against any such
claims.
5.5. Absence
of Certain Developments.
Except
as otherwise set forth on the Disclosure Schedule, Seller has not mortgaged,
pledged, or subjected to any lien, charge or any other encumbrance any of the
Acquired Assets.
5.6. Title
to the Assets.
Except
as otherwise set forth on Schedule 5.6 of the Disclosure Schedule with respect
to the title of Seller, Seller owns good and marketable title to the Acquired
Assets and the same are, or shall at the Closing be, free and clear of liens,
claims and encumbrances.
5.7. Assignment
and Transfer of Location Contracts.
Seller
covenants and agrees that it will assign and transfer to Buyer the Location
Contracts identified in Schedule 1 pursuant to the terms of this Agreement.
5.8. Assignment
and Transfer of Lines.
Seller
covenants and agrees that it will assign and transfer to Buyer the Local Access
Lines identified in Schedule 1 to this Agreement and that it will coordinate
and
cooperate fully with the phone companies in effecting the orderly assignment
of
these lines.
7
5.9. Accuracy
of NAC Schedules, Inventory Schedules and Polling Report.
The NAC
Schedules previously delivered to Buyer, the Inventory Schedule annexed to
the
Disclosure Schedule as Section 1.1(e) are, and the Polling Report when delivered
will be, true and correct in all material respects.
5.10. Labor
Matters.
Seller
is not a party to or bound by any collective bargaining or similar agreement
with any labor organization, or work rules or practices agreed to with any
labor
organization or employee association applicable to employees of Seller; none
of
the employees of Seller is represented by any labor organization and Seller
has
no knowledge of any union organizing activities among the employees of
Seller.
5.11. Full
Disclosure.
To
Seller’s best knowledge, no representation or warranty of Seller hereunder or
due diligence materials or other information supplied by Seller to Buyer in
connection herewith is false or misleading with respect to any material fact,
and Seller has not omitted to state any material fact required to be stated
herein or therein necessary to make the statements herein and therein, in light
of the circumstances under which they are made, not misleading.
5.12. Compliance
with Applicable Law.
The
Acquired Assets have been operated in compliance in all material respects with
all applicable laws, rules and regulations and orders and Seller has not
received any written complaint or notice from any governmental authority
alleging that the Seller has violated any laws, rules, regulations or
orders.
5.13. No
Violations and Compliance with Applicable Law.
The
execution, delivery and performance of this Agreement or any of the other
agreements and instruments reasonably necessary to complete the transactions
contemplated by this Agreement does not (i) conflict with or result in any
breach or default of any provision of the certificate of incorporation or
by-laws of Seller or (ii) violate any material statute or any order, rule or
regulation or any decision of any federal, state, local or foreign court or
regulatory authority or administrative or arbitrative body, agency or tribunal,
or any other governmental body whatsoever ("Legal
Authority")
applicable to Seller or any of the Acquired Assets. Schedule 5.13 of the
Disclosure Schedule contains a true and complete list of all registries,
applications, permits, medallions, franchises, licenses, authorizations and
approvals submitted or filed by Seller to or with any Legal Authority, or issued
or granted by any Legal Authority to Seller, required for the operation of
the
Telephones (collectively, "Authorizations");
5.14. Legal
Proceedings.
There
are no claims, actions, suits, inquiries, investigations or proceedings (“Legal
Actions”) pending or, to Seller’s knowledge, threatened against Seller relating
to the transactions contemplated hereby or the ownership or operation of the
Acquired Assets.
5.15. Intellectual
Property. Schedule
5.15 of the Disclosure Schedule contains a complete list of contracts and
license pursuant to which a third party is licensing its intellectual property
to Seller (the "Licenses"). The Seller is in compliance with all material terms
of the Licenses and to the knowledge of the Seller each of the Licenses is
in
full force and effect.
5.16. Lease.
Seller
has delivered to Buyer a true and complete copy of the Cleveland Lease, a
schedule of the Support Agreements and related detail and the written portion
of
the TU Agreement which has been extended orally on a month to month basis.
The
Cleveland Lease, Support Agreements and the TU Agreement are each in full force
and effect and are valid and enforceable in accordance with its terms. There
is
no default under the Cleveland Lease, Support Agreements and the TU Agreement
by
Seller, or any event that with notice or lapse of time or both would constitute
such a default by Seller. To the best of Seller's knowledge, there is not under
the Cleveland Lease, the Support Agreements and the TU Agreement any default
by
any other party thereto or any event that with notice or lapse of time or both
would constitute such a default thereunder by such party. Seller
has made no alterations to the Premises which must be removed or repaired prior
to surrender of the Premises which would involve a cost exceeding
$10,000.
8
5.17. Material
Contracts.
Schedule 5.17 of the Disclosure Schedules contains a true and complete list
of
all contracts that are material to the day-to-day operation of the Acquired
Assets by Seller.
5.18. Accounts
Payable.
Schedule 5.18 of the Disclosure Schedule contains a true and complete list
of
Seller’s accounts payable and Seller’s accrued and unpaid obligations under the
TU Agreement, whether or not yet billed or due and payable, as of the Closing
Date will not exceed $50,000. Key Provider Obligations as of the Closing Date,
whether or not yet billed or due and payable, will not exceed $700,000 plus
the
sum of Key Provider Obligations paid from the Purchase Price under Section
3.2(c).
Article
6.
Representations and Warranties of Buyer
Buyer
hereby represents and warrants to Seller that:
6.1. Incorporation
and Corporate Power.
Buyer
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware, with
the
requisite corporate power and authority to enter into this Agreement and perform
its obligations hereunder.
6.2. Execution,
Delivery; Valid and Binding Agreement.
The
execution, delivery and performance of this Agreement by Buyer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action, and no other corporate proceedings
on its part are necessary to authorize the execution, delivery or performance
of
this Agreement. This Agreement has been duly executed and delivered by Buyer
and
constitutes the valid and binding obligation of Buyer, enforceable in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors’ rights or by general principles
of equity.
6.3. Brokerage.
No
third party shall be entitled to receive any brokerage commissions, finder’s
fees, fees for financial advisory services or similar compensation in connection
with the transactions contemplated by this Agreement based on any arrangement
or
agreement made by or on behalf of Buyer.
9
Article
7.
Covenants of Seller
7.1. Conduct
of the Business.
Seller
agrees to observe each term set forth in this Section 7.1 and agrees that,
from
the date hereof until the Closing Date, unless otherwise consented to by Buyer
in writing:
(a) Seller
shall not, directly or indirectly, sell, pledge, dispose of, lease, license
or
otherwise encumber any of the Acquired Assets and will continue to operate
the
Acquired Assets in the ordinary course of business.
(b) Seller
shall work to transfer and assign all Local Access and Location Contracts to
Buyer and transfer all necessary keys of the Acquired Assets.
(c) Seller
shall not cancel, fail to maintain in force, or change any policy of insurance
relating to the Acquired Assets.
(d) Seller
shall negotiate in good faith with Buyer to arrive at the terms of a mutually
acceptable Transition Services and Agency Agreements.
7.2. Conditions.
Seller
shall take all commercially reasonable actions necessary to cause the conditions
set forth in Article 9 to be satisfied and to consummate the transactions
contemplated herein as soon as reasonably possible after the satisfaction
thereof (but in any event within ten business days of such date).
Article
8.
Covenants of Buyer
Buyer
covenants and agrees with Seller as follows:
8.1. Conditions.
Buyer
shall take all commercially reasonable actions necessary to cause the conditions
set forth in Article 9 to be satisfied and to consummate the transactions
contemplated herein as soon as reasonably possible after the satisfaction
thereof (but in any event within ten (10) business days of such
date).
8.2. Regulatory
Certifications.
Buyer
shall use its best efforts to secure certification from the appropriate
regulatory bodies, to the extent required and not already obtained by Buyer,
in
each state in which the Acquired Assets reside.
8.3. Transition
Services, Agency and Coinmach Corporation (“Coinmach”) Agreement.
Buyer
shall negotiate in good faith with Coinmach to arrive at the terms of a mutually
acceptable agreement. Buyer shall negotiate in good faith with Seller to arrive
at the terms of a mutually acceptable Transition Services and Agency
Agreements.
Article
9.
Conditions to Closing
9.1. Conditions
to Buyer’s Obligations.
The
obligation of Buyer to consummate the transactions contemplated by this
Agreement is subject to the satisfaction of the following conditions on or
before the Closing Date:
10
(a) The
representations and warranties set forth in Article 5 hereof and otherwise
in
this Agreement shall be true and correct in all material respects at and as
of
the Closing Date as though then made, except that any such representation or
warranty made as of a specified date (other than the date hereof) shall only
need to have been true on and as of such date;
(b) Seller
shall have performed in all material respects all of the covenants and
agreements required to be performed and complied with by it under this Agreement
prior to the Closing;
(c) On
the
Closing Date, Seller shall have delivered to Buyer the following:
(1)
the
Xxxx
of Sale and such other instruments of conveyance, transfer, assignment and
delivery as Buyer shall have reasonably requested pursuant to Article 4 hereof
conveying and assigning the Acquired Assets;
(2)
to
the
extent in its possession, the Location Contracts listed in Schedule 1 to this
Agreement;
(3)
a
certified copy of the resolutions of the board of directors and sole shareholder
of Seller authorizing the execution, delivery and performance of the Agreement
and all documents, instruments and transactions contemplated
herein;
(4)
a
certificate dated not more than fifteen (15) business days prior to the Closing
from the Secretary of State of the State of Delaware to the effect that Seller
is in good standing;
(5)
evidence
of the release of all outstanding liens affecting the Acquired Assets, including
but not limited to the lien of Cornell Capital, Inc. and any federal, state
or
local tax liens;
(6)
closing
certificates pursuant to which the Seller represents and warrants to Buyer
that
its representations and warranties to Buyer are true and correct in all material
respects as of the Closing Date as if then originally made and that all
covenants required by the terms hereof to be performed by the Seller on or
before the Closing Date, to the extent not waived by the Buyer in writing,
have
been so performed in all material respects;
(7)
Seller’s
undertaking to protect the confidential proprietary information relating to
the
Acquired Assets upon request of Buyer and at Buyer’s sole cost and expense
(including the cost of Seller’s personnel involved in such matter) and without
Seller incurring any expense in respect thereof;
(8)
all
other
documents and instruments as may be reasonably necessary and required to
consummate the transactions contemplated by this Agreement, including, but
not
limited to assignment certificates as requested on a case by case
basis.
11
(d) Buyer
shall have entered into an agreement with Coinmach, in form and substance
reasonably satisfactory to Buyer;
(e) Key
Provider Obligations shall have been resolved to the reasonable satisfaction
of
Buyer and Seller. Key Provider Obligations shall mean the amounts that must
be
paid to CLEC and LEC service providers, TU LLC, Inc, and Coinmach, Intera,
Inc.
Markcom, Inc. and similar service providers, (and any other key service provider
identified on Schedule 9.1(e)) in order for the provider to recognize the
transfer of the Telephones being transferred to Buyer and to agree to continue
to provide service to the Telephones after the Closing Date. To the extent
that
the amount of Key Provider Obligations can not be fixed prior to Closing, Seller
shall promptly pay any outstanding Key Provider Obligations after Closing in
accordance with the Transition Services Agreement and Exhibit E.
(f) Buyer
and
Seller shall enter into a transition services agreement in a mutually acceptable
form (the “Transition Services Agreement”);
(g)
Buyer
and
Seller shall enter into an Agency Agreement in a mutually acceptable form (the
“Agency Agreement”).
9.2. Conditions
to Seller’s Obligations.
The
obligations of Seller to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of the following conditions on or
before the Closing Date:
(a) The
representations and warranties set forth in Article 6 hereof will be true and
correct in all material respects at and as of the Closing as though then
made;
(b) Buyer
shall have performed in all material respects all the covenants and agreements
required to be performed by it under this Agreement prior to the
Closing;
(c) With
respect to those Telephones identified on Schedule 2 to this Agreement for
which
Local Access is provided by American Fiber Network, Inc. or its affiliates
(“AFN, Inc.”) Buyer shall have delivered to Seller a Local Access Services
Agreement in the form set forth on Exhibit D duly executed by
Buyer;
(d) With
respect to approximately five thousand (5,000) Telephones for which Local Access
is provided by Manhattan Telecommunications Corporation d/b/a Metropolitan
Communications a/k/a MetTel (“MetTel”) on the Closing Date listed on Schedule
9.2(d) of the Disclosure Schedule (the “Mettel Lines”), Buyer agrees to maintain
local access services with Mettel, Inc. through October 31, 2007 (the “Mettel
Commitment Period”) under the Agency Agreement except that any Mettel Line may
be disconnected if the underlying Telephone is de-installed or abandoned by
Buyer. In the event Buyer, during the Mettel Commitment Period, provides Seller
with evidence of one or more fully documented competitive offer(s) to provide
local access rates to all or any portion of the Mettel Lines at a rate superior
to those currently provided on the Mettel Lines (the “Competitive Offer(s)”),
Buyer shall be entitled to seek indemnification pursuant to Section 12.4 and
the
terms of the Indemnification Escrow Agreement of up to sixty two thousand five
hundred dollars ($62,500) for each dollar of savings that could be achieved
by
Buyer pursuant to the terms of the Competitive Offer(s) for the remaining
balance of the Mettel Commitment Period. Buyer and Seller agree to work together
in good faith with Mettel, Inc. to seek alternatives which would be commercially
valuable for both Buyer and Seller. Buyer shall only be responsible to Seller
for the cost of service to the Mettel Lines on or before October 31, 2007,
unless service is continued by Buyer in the name of Seller after October 31,
2007 in which event Buyer’s obligations will be governed by the Agency
Agreement. If Seller incurs any penalty payable to Mettel for not maintaining
the required 5,000 Mettel Lines through October 31, 2007 (a “shortage fee”)
Buyer shall not be responsible to Seller for the shortage fee except to the
extent the shortage fee arises from Buyer’s migration of Mettel Lines to another
dial tone service provider on or before October 31, 2007 . Buyer shall not
be
responsible to Seller for any other disconnect charges imposed by MetTel for
change of dial tone service provider;
12
(e) There
shall not be threatened, instituted or pending any action or proceeding, before
any court or governmental authority or agency, domestic or foreign, challenging
or seeking to make illegal, or to delay or otherwise directly or indirectly
restrain or prohibit, the consummation of the transactions contemplated hereby
or seeking to obtain material damages in connection with such
transactions;
(f) Key
Provider Obligations shall have been resolved to the reasonable satisfaction
of
Buyer and Seller;
(g) Buyer
and
Seller shall have entered into the Transition Services Agreement;
and.
(h) Buyer
and
Seller shall have entered into the Agency Agreement.
Article
10.
Post-Closing Covenants
10.1 Seller’s
Post-Closing Obligations.
Within
sixty (60) days following the Closing Seller shall deliver to Buyer the
landlord’s and sub-landlord’s written consents to the assignment of the
Cleveland Lease with landlord’s and sub-landlord’s certificate confirming that
rent is paid through the Closing Date and that there is no tenant default or
event which would constitute a default with the passage of time (the “Cleveland
Lease Consents”); provided, however, that no default shall occur under this
Section 10.1 in the event that Seller is unable to secure the Cleveland Lease
Consents as a result of the financial inadequacy of Buyer. The parties
acknowledge that no rent security has been delivered under the Cleveland Lease.
Seller shall be responsible for payment of all sums payable to the landlord
and
sublandlord in connection with obtaining the Cleveland Lease
Consents.
Article
11.
Termination
11.1. Termination.
This
Agreement may be terminated at any time prior to the Closing:
(a) by
the
mutual consent of Buyer and Seller;
(b) by
either
Buyer or Seller if there has been a material misrepresentation, breach of
warranty or breach of covenant on the part of the other in the representations,
warranties, obligations and covenants set forth in this Agreement;
13
(c) by
either
Seller or Buyer if the transactions contemplated hereby have not been
consummated by September 15, 2007; provided that, neither Buyer nor Seller
will
be will be entitled to terminate this Agreement pursuant to this Section 11.1(c)
if such party’s willful breach of this Agreement has prevented the consummation
of the transactions contemplated hereby; or
11.2. Effect
of Termination.
In the
event of termination of this Agreement by either Buyer or Seller as provided
in
Section 11.1, this Agreement shall become void and there shall be no liability
on the part of either Buyer or Seller, or their respective stockholders,
officers, or directors, except with respect to willful breaches of this
Agreement prior to the time of such termination.
11.3. Downpayment. If
Seller
is not in breach of the terms of this Agreement and the conditions to
closing set forth in Section 9.1 have been satisfied,
but
Buyer shall fail or refuse to comply with and perform all of the terms,
provisions, conditions, agreements, and obligations on its part to be observed,
kept and performed pursuant to this Agreement, the Downpayment, in accordance
with the terms and conditions of the Downpayment Escrow Agreement, shall be
delivered to Seller as liquidated damages and shall be Seller’s sole and
exclusive remedy for such failure or refusal of Buyer to consummate the
transaction contemplated by this Agreement or for any non-compliance,
non-performance, breach or default by Buyer, it being agreed that the exact
amount of damages to be sustained by Seller in the event of a default by Buyer
may be difficult to ascertain. Upon termination of this Agreement prior to
Closing for any other reason, the Downpayment, in accordance with the terms
and
conditions of the Downpayment Escrow Agreement, shall be delivered to
Buyer.
Article
12. Survival;
Indemnification
12.1. Survival,
Indemnification.
The
covenants, representations and warranties contained in this Agreement shall
survive the Closing. Seller agrees to indemnify Buyer with respect to, and
hold
Buyer harmless from, any loss, liability or expense (including, but not limited
to, reasonable legal fees) which Buyer may directly or indirectly incur or
suffer by reason of, or which results, arises out of or is based upon (a) the
inaccuracy of any representation or warranty made by Seller in this Agreement,
or (b) the failure of Seller to comply with any covenants or other commitments
made by Seller in this Agreement, or (c) any claims made by or on behalf of
any
creditor of Seller asserted against Buyer by reason of the transfer of the
Acquired Assets to Buyer as contemplated herein.
12.2. Buyer
agrees to indemnify Seller with respect to, and hold Seller harmless from,
any
loss, liability or expense (including, but not limited to, reasonable legal
fees) which Seller may directly or indirectly incur or suffer by reason of,
or
which results, arises out of or is based upon the (a) the inaccuracy of any
representation or warranty made by Buyer in this Agreement, or (b) the failure
of Buyer to comply with any covenants made by Buyer in this
Agreement.
12.3. Legal
Proceedings.
In the
event Buyer or Seller become involved in any legal, governmental or
administrative proceeding which may result in indemnification claims hereunder,
such party shall promptly notify the other party in writing and in full detail
of the filing, and of the nature of such proceeding. The other party may, at
its
option and expense, defend any such proceeding if the proceeding could give
rise
to an indemnification obligation hereunder. If the other party elects to defend
any proceeding, it shall have full control over the conduct of such proceeding,
although the party being indemnified shall have the right to retain legal
counsel at its own expense and shall have the right to approve any settlement
of
any dispute giving rise to such proceeding, provided that such approval may
not
be withheld unreasonably by the party being indemnified. The party being
indemnified shall reasonably cooperate with the indemnifying party in such
proceeding.
14
12.4. Claims
Against Escrow Amount.
Buyer
shall give written notice to Seller and Escrow Agent of any claim by Buyer
for
indemnification during the Escrow Period (a “Claim”). The Claim shall specify
with reasonable detail the factual basis for such Claim including the amount
claimed to be due to Buyer. Within three (3) business days of receipt of such
Claim, the Escrow Agent shall give Seller and Buyer notice of receipt of such
Claim (a “Notice of Receipt of Claim”). Seller shall have twenty (20) days from
receipt of a Notice of Receipt of Claim (the “Investigation Period”) to make
such investigation of the Claim as Seller deems necessary or desirable. For
the
purposes of such investigation, Buyer agrees to make available to Seller and
its
authorized representatives copies of any and all documents containing the
information relied upon by Buyer to substantiate such Claim. If Buyer and Seller
agree at any time as to the validity and undisputed amount of such Claim they
shall provide the Escrow Agent with written instructions for disbursement of
the
agreed upon amount of the Claim from the escrow account established in
accordance with Section 3.1(b) (the “Escrow Account”). If Seller fails to send a
notice of objection to the Escrow Agent and Buyer objecting to the Claim (a
“Notice of Objection”) prior to the expiration of the Investigation Period, the
Escrow Agent shall pay Buyer the full amount of the Claim from the Escrow
Account. The failure of Seller to deliver a timely Notice of Objection objecting
to a Claim shall be conclusive evidence of the validity of such Claim and shall
forever bar Seller from contesting such Claim. If Seller sends a Notice of
Objection in a timely manner and Buyer and Seller fail to agree as to the
validity and/or amount of any Claim, Buyer and Seller shall resolve such dispute
or disputes by binding arbitration before a single arbitrator in accordance
with
the Commercial Arbitration Rules of the American Arbitration Association then
in
effect. The determination or award rendered therein shall be binding and
conclusive upon Buyer and Seller, and any judgment on the award rendered by
the
arbitrator may be entered in any court having jurisdiction thereof. Within
three
(3) business days following the expiration of the Escrow Period, the Escrow
Agent shall send a release notice notifying Buyer and Seller that it will pay,
by wire transfer to an account designated by Seller, the portion of the Escrow
Account that remains and is undisputed (the “Release Notice”). The Release
Notice shall specify the amount on deposit in the Escrow Account and the amount
that remains undisputed. If Buyer fails to send a notice within three (3)
business days after receipt of the Release Notice to the Escrow Agent and Seller
objecting to the Release Notice (a “Release Notice Objection”), the Escrow Agent
shall pay Seller the undisputed amount. If Buyer sends a timely Release Notice
Objection specifying the amount proposed to be paid to Seller that Buyer objects
to being paid out to Seller, such amount shall not be paid out to Seller and
shall continue to be held by the Escrow Agent. Any portion of the Escrow Account
thereafter remaining in escrow shall be paid out in accordance with the written
directions of Buyer and Seller or in accordance with a final, non-appealable
judgment, order or decree of a court or an arbitration award.
12.5. Bulk
Transfer Act Compliance.
While
not acknowledging the applicability of any bulk transfers provision of the
Uniform Commercial Code as in effect in any state having jurisdiction over
any
of the Acquired Assets or any similar statute (collectively, the "Bulk Sales
Act"), the parties do nevertheless agree as follows:
15
(a) Seller
does hereby represent, warrant and covenant with Buyer that MobilePro, Inc.
or
its lender, as applicable (the “Secured Party”) has a perfected, first priority
lien on the Acquired Assets, that the sums due and owing to the Secured Party
exceed the fair market value of the Acquired Assets, that the Secured Party
has
reviewed and approved the terms of this Agreement and fully and fairly
investigated the value of the Acquired Assets, and that the sale of the Acquired
Assets by Buyer pursuant to the terms of this Agreement constitutes an
arm’s-length transaction negotiated in good faith.
(b) In
reliance upon the representations, warranties and covenants of Seller in this
Section 12.5, Buyer does hereby waive the provisions of the Bulk Sales Act
and
any other rights or protections that might arise by prior notification of all
of
Seller’s creditors or state tax or regulatory authorities and/or the escrow of
the purchase price pending the receipt of consents or waivers from each of
Seller’s creditors or state tax or regulatory authorities.
(c) Seller
does hereby agree to indemnify and hold Buyer harmless on account of any claims,
liability, loss or damage which Buyer may incur or suffer arising out of or
based upon any claims made by or on behalf of any creditor of Seller or state
tax or regulatory authority in respect of any failure to provide such creditor
advance notice of the transfer contemplated by this Agreement or otherwise
comply with the Bulk Sales Act.
Article
13.
Miscellaneous
13.1. Confidentiality;
Press Releases and Announcements.
Except
as otherwise expressly permitted by this Agreement, Seller and Buyer will not
disclose, and will cause their respective affiliates not to disclose, the terms
of this Agreement or the information provided in this Agreement or in any
instrument, schedule or other document exchanged in connection with the
transactions contemplated by this Agreement. Notwithstanding anything to the
contrary in this Agreement, Seller, Buyer and their respective affiliates may
disclose the terms of this Agreement to any person, whether by providing such
person with photocopies of all or portions thereof or otherwise: (i) to the
extent required, in the opinion of counsel to the party making the disclosure,
by applicable laws, rules or regulations, including but not limited to those
rules and regulations promulgated by the United States Securities and Exchange
Commission; (ii) as may be required in the reasonable opinion of Seller, Buyer,
or their respective affiliates, as the case may be, in connection with the
consummation of the transactions contemplated by this Agreement; (iii) as may
be
required, in the reasonable opinion of Seller, Buyer, or their respective
affiliates, as the case may be, in the defense of Seller, Buyer, or their
respective affiliates in any legal action, regulatory proceeding; or (v) as
may
be required by Buyer or Seller to comply with a duly served order of a court.
Prior to the Closing Date, neither party hereto shall issue any press release
(or make any other public announcement) related to this Agreement or the
transactions contemplated hereby or make any announcement to the employees,
customers or suppliers of Seller without prior written approval of the other
party hereto, except as may be necessary, in the opinion of counsel to the
party
seeking to make disclosure, to comply with the requirements of this Agreement
or
applicable law. If any such press release or public announcement is so required,
the party making such disclosure shall consult with the other party prior to
making such disclosure, and the parties shall use all reasonable efforts, acting
in good faith, to agree upon a text for such disclosure which is satisfactory
to
both parties. If any copy of all or portions of any instrument, schedule or
other document exchanged in connection with the transactions contemplated by
this Agreement are proposed to be disclosed, the parties shall negotiate in
good
faith to determine the portions of any such disclosure as may be redacted to
properly preserve the confidentiality thereof.
16
13.2. Expenses.
Except
as otherwise expressly provided for herein, Seller and Buyer will pay all of
their own expenses (including attorneys’ and accountants’ fees) in connection
with the negotiation of this Agreement, the performance of their respective
obligations hereunder and the consummation of the transactions contemplated
by
this Agreement (whether consummated or not).
13.3. Further
Assurances.
Seller
agrees that, on and after the Closing Date, it shall take all appropriate action
(without incurring any out-of-pocket expenses) and execute any documents,
instruments or conveyances of any kind which may be reasonably necessary or
advisable to carry out any of the provisions hereof, including, without
limitation, putting Buyer in possession and operating control of the
Assets.
13.4. Amendment
and Waiver.
This
Agreement may not be amended or waived except in a writing executed by the
party
against which such amendment or waiver is sought to be enforced. No course
of
dealing between or among any persons having any interest in this Agreement
will
be deemed effective to modify or amend any part of this Agreement or any rights
or obligations of any person under or by reason of this Agreement.
13.5. Notices.
All
notices, demands and other communications to be given or delivered under or
by
reason of the provisions of this Agreement will be in writing and will be deemed
to have been given when personally delivered, five business days after being
mailed by certified mail, return receipt requested, or on the next business
day
after been sent by nationally recognized overnight courier service for next
business day delivery. Notices, demands and communications to Buyer and Seller
will, unless another address is specified in writing, be sent to the address
indicated below:
Notices
to Buyer:
Sterling
Payphones, LLC
X.X.
Xxx
0000
Xxxxxxxxxx
Xxxxxxx, XX 00000
Attn:
Xxxx Xxxxxxx, Managing Member
With
a
copy to:
Lamb
& Xxxxxxxx, LLP
000
Xxxxxxxxxxx Xx
Xxxxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxx Shenn, Esq.
Notices
to Seller:
Davel
Communications, Inc.
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxx 00000
Attention:
Chief Executive Officer
Fax:
(000) 000-0000
17
13.6. Assignment.
This
Agreement and all of the provisions hereof will be binding upon and inure to
the
benefit of the parties hereto and their respective successors and permitted
assigns, except that neither this Agreement nor any of the rights, interests
or
obligations hereunder may be assigned by either party hereto without the prior
written consent of the other party hereto, which consent shall not be
unreasonably delayed or denied.
13.7. Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
13.8. Complete
Agreement.
This
Agreement and the Exhibits hereto, the Disclosure Schedule and the other
documents referred to herein contain the complete agreement between the parties
and supersede any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related to the subject
matter hereof in any way.
13.9. Counterparts.
This
Agreement may be executed in one or more counterparts, any one of which need
not
contain the signatures of more than one party, but all such counterparts taken
together will constitute one and the same instrument. This
Agreement may be executed by facsimile or other "electronic signature" (as
defined in the Electronic Signatures in Global and National Commerce Act of
2000) in a manner agreed upon by the parties hereto.
13.10. Governing
Law.
The
internal law, without regard to conflicts of laws principles, of the State
of
New York will govern all questions concerning the construction, validity and
interpretation of this Agreement and the performance of the obligations imposed
by this Agreement.
13.11. No
Third-Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any person other than
the
parties and their respective successors and permitted assigns; provided,
however,
that
the provisions in Article 12 above concerning indemnification are intended
for
the benefit of the individuals specified therein and their respective legal
representatives.
[SIGNATURES
ON FOLLOWING PAGE]
18
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the effective date set forth
hereinabove.
|
STERLING
PAYPHONES, LLC
By:
/s/ Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Managing
Member
DAVEL
COMMUNICATIONS, INC.
By:
/s/ Xxx
Xxxxxxxx
Name:
Xxx
Xxxxxxxx
Title:
CFO
|
19
List
of
Exhibits and Schedules
|
Exhibit
A
|
Downpayment
Escrow Agreement
|
|
Exhibit
B
|
Indemnification
Escrow Agreement
|
|
Exhibit
C
|
Xxxx
of Sale
|
|
Exhibit
D
|
Local
Access Agreement
|
|
Exhibit
E
|
Key
Provider Escrow Agreement
|
|
Schedule
1
|
Location
Agreements and ANI identifiers
|
|
Schedule
1.1(e)
|
Inventory
|
|
Schedule
1.1 (f) 1
|
The
Cleveland Lease
|
|
Schedule
1.1 (f) 2
|
Written
Support Services Agreements
|
|
Schedule
1.1 (f) 3
|
Material
Terms of Unwritten Support Agreements
|
|
Schedule
1.1 (g)
|
List
of Furniture Fixture and Equipment
|
|
Schedule
1.1 (h)
|
Polling
and Software Equipment
|
|
Schedule
2
|
ANIs
with local access to AFN
|
|
Schedule
2.1
|
ANIs
Not Acquired by Buyer
|
|
Schedule
3.1 (d)
|
Seller’s
Wiring Instructions
|
|
Schedule
2.3
|
Miscellaneous
Obligations
|
|
Schedule
9.1
|
Key
Providers
|
|
The
Disclosure Schedule
|
20
