1
EXHIBIT 10.4
PURCHASE AGREEMENT
This Agreement is entered into effective the 1st day of April, 1997 by
and between XETA Corporation, an Oklahoma corporation ("XETA") and Americom
Communications Services, Inc., an Oklahoma corporation ("Americom").
RECITALS
WHEREAS, Americom, pursuant to agreements with X.X. Communications, Inc.
("LDCI"), has previously marketed MCI's Telecom/USA long distance services to
71 Starwood Lodging Corporation hotel properties, which properties generate
commissions paid to Americom by MCI and/or LDCI; and
WHEREAS, Americom and XETA have entered into a Marketing Alliance
Agreement of even date herewith (the "Marketing Agreement"), pursuant to which
they have agreed to pool their efforts in marketing MCI long distance services
to commercial customers; and
WHEREAS, XETA and Americom desire to include Americom's existing
Starwood Lodging Corporation customer accounts in the marketing alliance formed
pursuant to the terms of the Marketing Agreement, including commission revenues
paid by U.S. Long Distance, Inc. ("USLD") on specific zero-plus long distance
calls pursuant to the terms of an agreement dated September 4, 1996 among USLD,
Americom and Starwood Lodging Corporation, as amended (the "USLD/Starwood
Agreement"); and
WHEREAS, in furtherance thereof, Americom desires to transfer such
customer accounts to XETA upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. PURCHASE OF CONTRACT RIGHTS. Americom hereby sells, assigns and
transfers to XETA and XETA hereby purchases from Americom all of Americom's
right, title and interest in and to commissions from MCI and/or LDCI and from
USLD, earned by Americom from and after April 1, 1997 (the "Effective Date")
with respect to the 71 Starwood Lodging Corporation hotel properties listed on
Schedule I attached hereto and incorporated herein, together with the contracts
underlying the generation of such commissions (the "Existing Accounts"). The
parties specifically acknowledge and agree that from and after the Effective
Date, the Existing Accounts and the parties' respective rights and obligations
with respect thereto shall be governed by the terms of the Marketing Agreement
(which is incorporated herein by this reference), except as otherwise
specifically provided in Section 4 below.
2
2. PURCHASE PRICE. The purchase price to be paid by XETA for the
Existing Accounts shall be One Million One Hundred Seven Thousand Nine Hundred
Sixty One Dollars and No Cents ($1,107,961.00). The purchase price shall be
paid in cash (or cash equivalent) upon satisfaction of the conditions set
forth in Section 5 below. Americom hereby acknowledges and agrees that all
commissions it received and/or earned from XETA on the sale of equipment under
XETAPLAN Contracts to the Existing Accounts are hereby reversed and cancelled,
and that the purchase price stated above reflects adjustments made for the
reversal and cancellation of such commissions, the refunding to Americom of all
XETAPLAN down payments made by Americom on the Existing Accounts, and the
sharing by XETA and Americom of any start-up fees imposed pursuant to customer
contracts executed by the Existing Accounts. Americom further acknowledges and
agrees that all XETAPLAN Contracts executed by it in connection with the
Existing Accounts shall be cancelled as of the Effective Date upon satisfactory
completion of the due diligence condition set forth in Section 5 below, and
that Americom shall remain liable to XETA for any XETAPLAN payments due under
such contracts prior to their cancellation.
3. REPRESENTATIONS AND COVENANTS OF AMERICOM. Americom hereby makes
the following representations and enters into the following covenants:
(a) Except as otherwise provided in the next sentence, all of
the Existing Accounts are currently under contract with Americom to
receive MCI long distance services. The Existing Accounts listed on
Schedule II attached hereto and incorporated herein are currently also
under contract with USLD to receive operator services from USLD only on
interstate calling card calls which go out through dialer equipment
provided by USLD.
(b) Provided that USLD consents to the assignment of rights by
Americom hereunder, neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a
breach of or default under any agreement between Americom and U.S. Long
Distance ("USLD"), or Americom and LDCI.
(c) Immediately upon execution of this Agreement, Americom
will, in cooperation with XETA, take all action as may be necessary to
cause MCI and USLD to pay the respective commissions generated by the
Existing Accounts to XETA.
(d) Neither Americom nor Starwood Lodging Corporation are in
default under any of the customer contracts underlying the Existing
Accounts.
(e) Except for the claim of USLD against commissions paid or
to be paid by USLD on those of the Existing Accounts listed on Schedule
II attached hereto, all of the accounts and contract rights transferred
hereby to XETA are free and clear of all liens, claims and encumbrances
of any nature whatsoever.
2
3
(f) Americom shall execute any and all other documentation
that XETA may reasonably request to effect the transfer of the Existing
Accounts to XETA as contemplated herein, including without limitation an
Assignment and General Conveyance in form and substance satisfactory to
XETA. Americom shall also cooperate with XETA in obtaining any and all
consents or approvals as XETA may deem necessary to effect the
transactions contemplated hereby.
4. DIVISION OF COMMISSIONS. The Net Commission Pool (as that term
is defined under the Marketing Agreement) generated each month by the Existing
Accounts from April 1, 1997 through March 31, 2000 shall be divided by XETA and
Americom on a monthly basis as follows:
(a) The first $40,000 collected shall be paid 100% to XETA;
(b) The next $45,000 collected shall be paid 100% to Americom;
and
(c) Thereafter the remaining dollars collected shall be shared
equally by the parties hereto.
From and after April 1, 2000, the monthly Net Commission Pool shall be divided
equally between the parties.
In the event that USLD withholds payment of the commissions or any
portion thereof earned by Americom under the USLD/Starwood Agreement, which
commissions have been assigned to XETA hereunder, Americom hereby agrees to pay
to XETA for contribution to the Gross Commission Pool under the Marketing
Agreement, an amount equal to the amount withheld by USLD. Such payment shall
be made no later than five (5) business days after the date such amount would
have been remitted by USLD. In order to secure its obligation hereunder,
Americom hereby creates and grants to XETA a security interest in any and all
commissions or other payments that are now or may hereafter be due and owing to
Americom by (i) XETA under any sales agreement with Americom, oral or written,
whether now existing or hereafter created, including without limitation the
Marketing Agreement, and (ii) USLD under any agreement, oral or written,
between Americom and USLD. Americom hereby agrees to sign and deliver to XETA
at any time or from time to time as XETA may reasonably request, one or more
Financing Statements pursuant to the applicable sections of the Oklahoma
Uniform Commercial Code in form satisfactory to XETA, in order to create,
perfect and maintain a valid security interest in the foregoing collateral.
5. DUE DILIGENCE CONDITION PRECEDENT. Americom shall promptly
provide XETA for its review with access to and/or copies of all financial
records, agreements and contracts relating to the provision of
telecommunication and/or long distance services to Americom's USLD customers
and to the Existing Accounts, as well as such other documentation that
3
4
XETA may reasonably request (including without limitation all agreements
between Americom and USLD) to satisfy itself (i) as to the economic and
financial aspects of the business underlying the marketing alliance, and as to
the legal aspects of the transactions contemplated herein, (ii) that the
marketing by Americom of MCI long distance services to the Existing Accounts or
to any other customers does not violate the terms of any agreement between
Americom and USLD, (iii) that no third party has or will have any claim to the
commissions generated by the Existing Accounts, except for any claim by USLD
against the commissions paid or to be paid by USLD on the Existing Accounts,
(iv) that all consents and approvals that may be required from USLD, LDCI, MCI
and/or Starwood Lodging Corporation, to the transfer of the Existing Accounts
to XETA have been obtained (specifically including, without limitation, the
written consent of USLD to the assignment by Americom of Americom's rights
under the Master Agency Agreement with USLD dated November, 1992, as amended,
as they relate to those of the Existing Accounts listed on Schedule II hereto),
(v) that the transfer of the Existing Accounts to XETA shall not violate the
terms of or result in a breach of any agreement between Americom and the
Existing Accounts, including without limitation the USLD/Starwood Agreement, or
between Americom and USLD, including without limitation any loan agreement,
note or security agreement. In addition, Americom shall deliver the following
to XETA, all of which shall be in form and substance satisfactory to XETA: (a)
confirmation from MCI that MCI will pay commissions on the Existing Accounts
directly to XETA, (b) copies of signed written contracts between Americom and
Starwood Lodging Corporation as to the provision of MCI services to the
Existing Accounts, (c) an amendment to the USLD/Starwood Agreement, signed by
Starwood Lodging Corporation, relating to (among other things) the provision of
MCI/Telecom*USA services. The purchase price to be paid by XETA for the
Existing Accounts shall not be paid until the foregoing due diligence
conditions have been met to XETA's reasonable satisfaction in its sole
discretion.
6. INDEMNITY. Americom hereby agrees to indemnify and hold XETA
harmless from and against any claim, liability, obligation, loss, damage,
judgment, cost and expense of any kind or character arising out of or
attributed to any claim by USLD or any other third party to any commission or
portion thereof generated by the Existing Accounts from and after the Effective
Date.
7. BINDING EFFECT; MODIFICATIONS. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns;
provided, however, that neither party may assign or otherwise transfer this
Agreement or any of its interest herein without the prior and express written
consent of the other party. This Agreement cannot be changed or modified
except by written amendment signed by both parties.
8. CONTROLLING LAW. This Agreement shall be governed by the laws of
the State of Oklahoma.
4
5
IN WITNESS THEREOF, the parties have executed this Agreement on the day
and year first written above.
"XETA" "Americom"
XETA Corporation, an Oklahoma Americom Communications Services, Inc.,
corporation an Oklahoma corporation
By /s/ Xxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------------
Xxxx X. Xxxxxx, President Xxxxxx X. Xxxxx, President
5
