EXHIBIT 10.9
EXHIBIT Q
JOINDER AGREEMENT
THIS JOINDER AGREEMENT ("AGREEMENT"), dated as of November 15, 2004, among (A)
MOBILEPRO CORP., a Delaware corporation ("MobilePro") and DAVEL ACQUISITION
CORP., a Delaware corporation (the "Purchaser"); (B) DAVEL COMMUNICATIONS, INC.,
a Delaware corporation ("Davel"), DAVEL FINANCING COMPANY, LLC, a Delaware
limited liability company ("Davel Financing"), PHONTEL TECHNOLOGIES, INC., an
Ohio corporation ("Phonetel"), CHEROKEE COMMUNICATIONS, INC., a Texas
corporation ("Cherokee"), DAVEL COMMUNICATIONS GROUP, INC., an Illinois
corporation ("Davel Illinois"), ADTEC COMMUNICATIONS, INC., a Florida
corporation ("Adtec"), CENTRAL PAYPHONE SERVICES, INC., a Georgia corporation
("CPS"), COMMUNICATIONS CENTRAL INC., a Georgia corporation ("CCI"),
COMMUNICATIONS CENTRAL OF GEORGIA, INC., A Georgia corporation ("CCGI"), DAVEL
MEDIA, INC., a Delaware corporation ("Davel Media"), DAVEL MEXICO, LTD., an
Illinois corporation ("Davel Mexico"), DAVELTEL, INC., an Illinois corporation
("Davel Tel"), INTERSTATE COMMUNICATIONS, INC., a Georgia corporation ("ICI"),
INVISION TELECOM, INC., a Georgia corporation ("Invision"), PEOPLES ACQUISITION
CORPORATION, a Pennsylvania corporation ("PAC"), PEOPLES COLLECTORS, INC., a
Delaware corporation ("Peoples Collectors"), PEOPLES TELEPHONE COMPANY, INC., a
New York corporation ("Peoples NY"), PEOPLES TELEPHONE COMPANY, INC., a New
Hampshire corporation ("Peoples NH"), PTC CELLULAR, INC., a Delaware corporation
("PTC Cellular"), PTC SECURITY SYSTEMS, INC., a Florida corporation ("PTC
Security"), SILVERADO COMMUNICATION CORP., a Colorado corporation ("Silverado"),
TELALEASING INTERPRISES, INC., an Illinois corporation ("Telaleasing"), and
T.R.C.A., INC., an Illinois corporation ("TRCA"); and (C) AIRLIE OPPORTUNITY
MASTER FUND, LTD. (the "Lender").
Davel, Davel Financing, Phonetel, Cherokee, Davel Illinois, Adtec, CPS, CCI,
CCGI, Davel Media, Davel Mexico, Davel Tel, ICI, Invision, PAC, Peoples
Collectors, Peoples NY, Peoples NH, PTC Cellular, PTC Security, Silverado,
Telaleasing and TRCA are hereinafter collectively referred to as the "DAVEL
CREDIT PARTIES." Other capitalized terms used herein shall have the meaning as
specified in the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, on the date hereof, MobilePro the Purchaser has purchased from
the Selling Lenders, the Davel Credit Parties Debt aggregating [$118,000,000]
and the Cerebus Subordinated Debt aggregating $1,000,000 (as those terms are
defined in the Credit Agreement referred to below); and
WHEREAS, on the date hereof, the Lender has made a $15,200,000 secured
loan to the Purchaser and MobilePro to enable such Persons to acquire the Davel
Credit Parties
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Debt and Cerebus Subordinated Debt from the Selling Lenders; and
WHEREAS, MobilePro, the Purchaser, and the Lender, have entered into a
Credit Agreement, dated as of November 15, 2004 (as amended, modified or
supplemented from time to time, the "CREDIT AGREEMENT"), providing for the
making of the Loan as contemplated therein; and
WHEREAS, as partial collateral for the Loan, the Lender has received
from MobilePro and the Purchaser, a collateral assignment of all Davel Credit
Parties Debt and all Cerebus Subordinated Debt, pursuant to the provisions of
the Collateral Debt and Security Agreement Assignment; and
WHEREAS, the Lender, MobilePro and the Purchaser have entered into the
Davel Credit Parties Forebearance Agreement, pursuant to which, inter alia, the
Lender has agreed that, absent the occurrence and continuation of an Event of
Default under the Credit Documents, it will not seek to enforce against any of
the Davel Credit Parties, its rights and remedies under the Collateral Debt and
Security Agreement Assignment with respect to the Davel Credit Parties Debt and
Cerebus Subordinated Debt; and
WHEREAS, in consideration of Loan and the foregoing financial
accommodations to the Davel Credit Parties, the Lender has requested that each
of the Davel Credit Parties enter into this Agreement.
NOW, THEREFORE, in consideration of the benefits accruing to the Davel
Credit Parties, the receipt and sufficiency of which are hereby acknowledged by
each of the Davel Credit Parties, each of the Davel Credit Parties do hereby
makes the following representations and warranties and hereby covenants and
agrees as follows:
1. Joinder in Credit Agreement. By their execution of this Agreement,
each of the Davel Credit Parties do hereby jointly and severally join in and
agree to be bound by all of the terms and conditions of the Credit Agreement, as
though each such Davel Credit Party were an original party signatory thereto.
2. Representations and Warranties. By their execution of this
Agreement, each of the Davel Credit Parties do hereby jointly and severally join
in all of the representations and warranties of the Borrowers set forth in
Section 5 of the Credit Agreement, as though each such Davel Credit Party were
an original party signatory thereto.
3. Performance of Covenants. By their execution of this Agreement, each
of the Davel Credit Parties do hereby jointly and severally covenant and agree
to join in and duly and faithfully perform all of the covenants and agreements
of the Borrowers contained in the Credit Agreement, including those covenants
set forth in Section 6 and Section 7 thereof, as though each such Davel Credit
Party were an original party signatory thereto.
4. Execution of Certain Security and Credit Documents. Simultaneous
with their execution and delivery of this Agreement, each of the Davel Credit
Parties shall duly execute and deliver to the Lender (a) the Davel Credit
Parties Forebearance
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Agreement, (b) the Davel Credit Parties Guaranty, and (c) the Davel Credit
Parties Security Agreement.
5. Miscellaneous
(a) Except as otherwise expressly provided herein, all notices
and other communications hereunder shall be in writing (including telegraphic,
telex, telecopier, facsimile or cable communication) and shall be mailed,
telegraphed, telexed, telecopied, faxed, cabled or delivered to the parties
hereto at the respective address set forth below and shall be effective when
received:
(i) if to the Borrowers or any Davel Credit Party, at
its address set forth in the Credit Agreement; and
(ii) if to the Lender, at:
Airlie Opportunity Master Fund, L.P.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxxx
(iii) or at such other address as shall have been
furnished in writing by any Person described above to the party
required to give notice hereunder.
(b) None of the terms and conditions of this Agreement may be
amended, changed, waived, modified or varied in any manner whatsoever unless in
writing duly signed by the Lender and each Davel Credit Party affected thereby;
it being understood that the addition or release of any Davel Credit Party
hereunder shall not constitute an amendment, change, waiver, modification or
variance affecting any Davel Credit Party other than the Borrowers and the Davel
Credit Party so added or released.
(c) No delay on the part of the Lender in exercising any of
its rights, remedies, powers and privileges hereunder or partial or single
exercise thereof, shall constitute a waiver thereof. No notice to or demand on
any Davel Credit Party shall constitute a waiver of any of the rights of the
Lender to any other or further action without notice or demand to the extent
such action is permitted to be taken by the Lender without notice or demand
under the terms of this Agreement.
(d) The obligations of each Davel Credit Party hereunder shall
remain in full force and effect without regard to, and shall not be impaired by:
(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like of any Davel Credit Party; (b) any exercise
or non-exercise, or any waiver of, any right, remedy, power or privilege under
or in respect of this Agreement or any other Credit Document except as
specifically set forth in a waiver granted pursuant to the provisions of Section
10.2 of the Credit Agreement; or (c) any amendment to or modification of any
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other Credit Document or any security for any of the Obligations; whether or not
any Davel Credit Party shall have notice or knowledge of any of the foregoing.
(e) The rights and remedies of the Lender herein provided are
cumulative and not exclusive of any rights or remedies which the Lender would
otherwise have.
(f) This Agreement shall be binding upon each Davel Credit
Party and its successors and assigns and shall inure to the benefit of the
Lender and its successors and assigns. All agreements, statements,
representations and warranties made by such Davel Credit Party herein or in any
certificate or other instrument delivered by each Davel Credit Party or on its
behalf under this Agreement shall be considered to have been relied upon by the
Lender Creditors and shall survive the execution and delivery of this Agreement,
the other Credit Documents regardless of any investigation made by the Lender.
(g) The headings of the several sections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement,
(h) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any, jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
(i) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
(j) It is expressly agreed, anything herein contained to the
contrary notwithstanding, that each Davel Credit Party shall remain liable to
perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Lender shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, nor
shall the Lender be required or obligated in any manner to perform or fulfill
any of the obligations of any Davel Credit Party under or with respect to any
Collateral.
(k) This Agreement maybe executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Lender.
(l) It is understood and agreed that any subsequently formed
or acquired Subsidiary of a Davel Credit Party shall also execute a counterpart
of this Agreement after the date hereof, and pursuant to this Agreement, shall
become a Davel Credit Party hereunder by executing a counterpart hereof and
delivering the same to the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
BORROWERS:
MOBILEPRO CORP.
a Delaware corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVEL ACQUISITION CORP.
a Delaware corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVEL CREDIT PARTIES:
DAVEL COMMUNICATIONS, INC.
a Delaware corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVEL FINANCING COMPANY, LLC
a Delaware limited liability company
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
PHONETEL TECHNOLOGIES, INC.
an Ohio corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
CHEROKEE COMMUNICATIONS, INC.
a Texas corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVEL COMMUNICATIONS GROUP, INC.
an Illinois corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
ADTEC COMMUNICATIONS, INC.
a Florida corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
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CENTRAL PAYPHONE SERVICES, INC.
a Georgia corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
COMMUNICATIONS CENTRAL INC.
a Georgia corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
COMMUNICATIONS CENTRAL OF GEORGIA, INC.
a Georgia corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVEL MEDIA, INC.
a Delaware corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVEL MEXICO, LTD.
an Illinois corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
DAVELTEL, INC.
an Illinois corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
INTERSTATE COMMUNICATIONS, INC.
a Georgia corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
INVISION TELECOM, INC.
a Georgia corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
PEOPLES ACQUISITION CORPORATION
a Pennsylvania corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
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PEOPLES COLLECTORS, INC.
a Delaware corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
PEOPLES TELEPHONE COMPANY, INC.
a New York corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
PEOPLES TELEPHONE COMPANY, INC.
a New Hampshire corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
PTC CELLULAR, INC.
a Delaware corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
PTC SECURITY SYSTEMS, INC.
a Florida corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
SILVERADO COMMUNICATION CORP.
a Colorado corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
TELALEASING INTERPRISES, INC.
an Illinois corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
T.R.C.A., INC.,
an Illinois corporation
BY: /S/ XXXXXXXX X. XXXXX
-----------------------------------
THE LENDER:
AIRLIE OPPORTUNITY MASTER FUND, LTD.
By: /S/ XXXXXX XXXXX
-----------------------------------
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