COCOT AGREEMENT
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Exhibit 10.2
THIS AGREEMENT is made and entered into this 16th day of August, 2002, by and between Metropolitan Telecommunications, d/b/a MetTel, having its principal place of business at 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Company" or "MetTel"), and ETS Payphones, Inc., having its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx X, Xxxxxx Xxxxxxx, Xxxxxxx, 00000 (hereinafter referred to as the "Customer").
WHEREAS, MetTel is a Local Exchange Carrier presently offering local, regional and long distance telephone services within the State of New York where facilities permit.
WHEREAS, The Customer is a payphone service provider with payphones in the State of New York.
WHEREAS, the Customer wishes to purchase local and regional exchange service from the Company and the Company wishes to sell local and regional exchange service to the Customer;
NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, and the other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. TERM AND TERMINATION
Term of Agreement. The term of this Agreement shall be for a period of twenty seven (27) months from September 20, 2002 (the "Term"). This Agreement shall thereafter automatically renew for successive twelve (12) month periods ("Renewal Term") subject to either party's right to terminate this Agreement effective at the end of the Service Period or a Renewal Term by written notice given at least 60 days prior to the end of such term.
2. Customer's OBLIGATIONS
- 2.1
- Minimum
Term Commitments. As an inducement to the Company to provide the pricing attached hereto as Exhibit A, the Customer warrants that it presently has over 3400
payphones (such payphones as designated in Exhibit B hereto, the "Payphones") and that shall use MetTel as its exclusive telecommunications provider where MetTel provides service in New York within
the Verizon territory and where the payphone lines are completely serviced on Verizon's facilities.
- 2.2
- Limited
Power of Attorney. As an inducement to the Company to be the exclusive provider of service to the Payphones in the State of New York, where MetTel's facilities permit, the
Customer, by this Agreement, hereby provides MetTel with a Limited Power of Attorney, coupled with an interest, to execute a Letter of Authorization or Agency ("LOA") to purchase local and regional
exchange services on ETS's behalf for the Payphones during the term of this Agreement and any Renewal Term. In the event that MetTel is required to exercise its Power of Attorney to utilize the LOA it
will invoice to ETS all costs associated with exercising its right including but not limited to service installation charges. The Company, at its sole discretion, can exercise its rights under the
Power of Attorney granted hereby and execute the LOA at any time it deems necessary
- 2.3
- Liquidated Damages. In the event either ETS or any successor in interest (whether voluntary or involuntary) or any purchaser of the stock, business or assets of ETS terminates MetTel's right to provide service to all or any portion of the lines with respect to the Payphones under this Agreement prior to the end of the Term, MetTel shall be entitled to liquidated damages therefore calculated at the rate of $10 per line times the number of months remaining in the Term.
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- 2.4
- Right Of First Refusal. As an additional inducement to enter into this Agreement, ETS hereby grants MetTel a Right of First Refusal to purchase ETS's New York Payphones on the same terms and conditions received by ETS in writing from a bona fide purchaser. This document contains proprietary information and is subject to a Non-Disclosure and Confidentiality Agreement.
3. PRICING AND TERMS OF PRODUCT OFFERINGS
- 3.1
- The
Customer agrees to pay the Company in accordance with the pricing terms stated in Exhibit A attached hereto. The Customer will pay each Company invoice within
twenty-five (25) days of the invoice date. Moreover, the Company agrees that the pricing terms stated in Exhibit A will be as low as MetTel or any MetTel affiliate provides
to a non-affiliate of MetTel that is similarly situated to ETS in terms of size and terms ("Similarly Situated Customer") on the anniversary date of this agreement. In the event that the
pricing terms stated in Exhibit A exceed the pricing terms of a Similarly Situated Customer on the anniversary date of this agreement, MetTel will adjust ETS's pricing so that the pricing is
the same.
- 3.2
- In
the event that the Company does not receive timely payment, it may avail itself of all tariffed remedies including but not limited to suspension and disconnection of service and
late payment charges in the amount of one and one-half percent per month as well as the Company's rights under section 2.3 and any other rights it has under applicable law in
respect of the Lien granted hereby.
- 3.3
- Rates
in Exhibit A shall apply to the extent they are inconsistent with MetTel tariffs as of the date of execution of this Agreement, and subject to paragraph 4.1. All
other rates, terms, and conditions of the Services provided within the State of New York will be governed by MetTel tariffs filed with the New York Public Service Commission. are hereinafter referred
to as the "Tariffs."
- 3.4
- MetTel agrees that, in the event that the relevant incumbent local exchange carrier's rate decrease as a result of the requirements of the Federal Communications Commission's New Services Test in any service area affecting the Payphones during the term of this Agreement, MetTel will at its sole discretion either match the new rates for customer or permit Customer to terminate this Agreement.
4. APPLICATION OF TARIFFS
- 4.1
- This agreement is intended to supplement the applicable Tariffs in effect covering the Services. The relationship of the Parties shall be subject to the applicable Tariffs; in the event that there is an inconsistency between the rates specifically provided in this Agreement and the rates provided in the Company Tariffs, the rates, terms and conditions of this Agreement shall control. Any modification to the Tariffs after this Agreement is executed shall be controlling over this Agreement, provided, however, that MetTel shall provide notice to Customer of proposed changes to applicable tariffs and in the event that the effect of such tariffs is to materially alter the service to be provided by MetTel hereunder or change any material rate or term hereof, then either party shall have the right to terminate this agreement.
5. CONFIDENTIALITY
- 5.1
- The parties understand and agree that the terms and conditions of this Agreement, all documents referenced (including but not limited to invoices and computer records to the Customer for services provided hereunder) herein, communications between the parties regarding this Agreement or the Service to be provided hereunder (including price quotes to Customer for any Service proposed to be provided or actually provided hereunder) as well as such information relevant to any other agreement between the parties (collectively "Confidential Information"), are
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confidential as between the Customer and the Company, unless: (a) this Agreement has to be filed with the New York Public Service Commission; (b) such information was previously or becomes known to the receiving party free of any obligation to keep it confidential; (c) has been or is subsequently made public by the disclosing party; or (d) is required to be disclosed by law, court order or regulation. In the event that a portion of this agreement must be disclosed to the New York Public Service Commission, only said portion that is disclosed will be deemed to have lost its Confidential Information status.
6. GENERAL PROVISIONS
- 6.1
- Construction and Interpretation. This Agreement shall be governed and construed by the laws of the State of New York. In
the event that any action is brought by either party to enforce any term or condition of this Agreement, the prevailing party shall be entitled to recover its actual legal cost, including reasonable
attorney's fees, court costs and costs of collection, in addition to whatever other relief a court may award. All provisions of this Agreement are intended to be interpreted and construed in a manner
to make such provisions valid, legal and enforceable. In the event that any term or provision of this Agreement is found to be unenforceable in a court of law for any reason, the remainder of this
Agreement shall not be affected thereby and shall be interpreted so as to give full effect to the intent of this Agreement. The provisions of this Agreement shall be enforceable notwithstanding the
existence of any claim or cause of action of the Company against the Customer or the Customer against the Company, whether predicated on this Agreement or otherwise.
- 6.2
- Assignment. Either party may assign its rights under this Agreement only with advance written consent of the other party,
which consent may not be unreasonably withheld, and this Agreement shall inure to the benefit of the successors and assigns of each party, and shall be binding upon the Customer and the Company, its
heirs, executors, administrators, guardians, and permitted successors and assigns provided, however, that notwithstanding the preceding, MetTel shall be permitted to assign its interests in the
Agreement to and in favor of MCG Capital Corporation (including any of its successors, assignees, transferees, pledges, designated third party or agents) so long as MCG Capital Corporation (including
any of its successors, assignees, transferees pledges, designated third party or agents) is licensed to operate as a Local Exchange Carrier or otherwise offer local, regional and long distance
telephone services.
- 6.3
- Entire Agreement and Amendment. This Agreement represents the entire understanding of the parties with respect to the
specific matter of this Agreement and supersedes all previous understandings, written or oral, between the parties with respect to the subject matter. This Agreement may only be amended by a writing
executed by both parties hereto. Failure by the Company or the Customer to insist upon the other party's compliance with any provision in this Agreement shall not be deemed a waiver of such provision.
- 6.4
- Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered personally and receipted for, sent by overnight commercial air courier (such as Federal Express), to the parties at their addresses set forth above or to such other address as a party shall have notified the other party. Any such notice shall be deemed effective and delivered upon the earliest to occur of actual delivery, if delivered personally, one (1) business day after shipment by
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commercial air courier, or three (3) business days after mailing to the parties at the address set forth below:
| To the Customer: ETS Payphones, Inc. Xxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxx, Xxxxx X Xxxxxx Xxxxxxx, Xxxxxxx 00000 Tel 000-000-0000 Fax 000-000-0000 xxxxxxxxxxx@xxxxxxxxxxxx.xxx Xxxxxxx Xxxxx Xxxxx, Esq. Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx LLP 000 Xxxxxxxxx Xxxxxx, XX Xxxxxxx XX 00000 Tel 000-000-0000 Fax 000-000-0000 |
To the Company: MetTel Xxxxxx Xxxxxxxx 00 Xxxx Xxxxxx, 00xx Xx. Xxx Xxxx, Xxx Xxxx 00000 Tel 000.000.0000 Fax 000.000.0000 xxxxxxxxx@xxxxxx.xxx |
MetTel Xxxxx Xxxxxxxxx Legal Department 00 Xxxx Xxxxxx, 00xx Xx. Xxx Xxxx, Xxx Xxxx 00000 Tel 000.000.0000 Fax 000.000.0000 xxxxxxxx@xxxxxx.xxx |
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IN WITNESS WHEREOF, the Company and the Customer represent that they have read this Agreement, understand it and agree to be bound by all the terms and conditions stated herein.
| ETS Payphones, Inc. | Metropolitan Telecommunications, d/b/a MetTel | |
By |
By |
|
Name: Xxx Xxxxxxxxxx |
Name Xxxxxx Xxxxxxxx |
|
Title: CEO |
Title EVP |
|
Date |
Date |
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COCOT AGREEMENT
