Exhibit 10.4
MUTUAL RELEASE
THIS MUTUAL RELEASE (the "RELEASE") is made and entered into this 15th
day of November, 2004, by and between DAVEL COMMUNICATIONS, INC., a Delaware
corporation (the "COMPANY"), and the persons and entities listed on Exhibit A
attached hereto (the "SELLING LENDERS").
RECITALS
A. The parties hereto have previously entered into (i) that certain
Amended, Restated and Consolidated Credit Agreement dated as of July 24, 2002 by
and among Davel Financing Company, L.L.C., PhoneTel Technologies, Inc., Cherokee
Communications, Inc., Davel Communications, Inc., the domestic subsidiaries of
each of the foregoing and Foothill Capital Corporation, as Agent, and the
lenders set forth therein, as amended by the First Amendment and Waiver to
Amended, Restated, and Consolidated Credit Agreement dated as of March 31, 2003
by and among Davel Financing Company, L.L.C., PhoneTel Technologies, Inc.,
Cherokee Communications, Inc., Davel Communications, Inc., the domestic
subsidiaries of each of the foregoing and Foothill Capital Corporation, as
Agent, and the lenders set forth therein, the Second Amendment and Waiver to
Amended, Restated and Consolidated Credit Agreement dated as of February 24,
2004, and the Third Amendment and Waiver to Amended, Restated and Consolidated
Credit Agreement dated as of August 11, 2004 (collectively, the "CREDIT
AGREEMENT"), (ii) that certain Amended, Restated, and Consolidated Security
Agreement dated as of July 24, 2002 by and among Davel Financing Company,
L.L.C., PhoneTel Technologies, Inc., Cherokee Communications, Inc., Davel
Communications, Inc., the domestic subsidiaries of each of the foregoing and
Foothill Capital Corporation, as Agent, and the lenders set forth therein (the
"SECURITY AGREEMENT") and (iii) all of the other documents, instruments and
agreements between the Company and the Selling Lenders or made by the Company
for the benefit of the Selling Lenders to evidence or secure the obligations of
the Company under the Credit Agreement (collectively and with the Credit
Agreement and Security Agreement, the "LOAN DOCUMENTS"). The loans of the
Company evidenced by the Credit Agreement are referred to as the "COMPANY DEBT."
B. The Company and one or more of its subsidiaries is also obligated to
one of the Selling Lenders, Cerberus Partners, L.P., ("CERBERUS") for a loan
evidenced by a certain $1,000,000 Subordinated Promissory Note dated November
17, 1999, which is secured by assets of the Company pursuant to that certain
Security Agreement related thereto also dated November 17, 1999, among PhoneTel
Technologies, Inc., Cherokee Communications, Inc. and Cerberus (the "CERBERUS
SUBORDINATED DEBT"). The foregoing Note and Security Agreement and any related
documents or agreements between Cerberus and the other parties to such Note and
Security Agreement or made by the Company for Cerberus' benefit to evidence or
secure the obligations of the Company and its affiliates under such Note and
Security Agreement are referred to collectively as the "CERBERUS DOCUMENTS."
C. The parties hereto have entered into a Loan Purchase Agreement and
Transfer and Assignment of Shares dated as of September __, 2004 (the
"AGREEMENT") by and among Davel
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Acquisition Corp., a Delaware corporation (the "BUYER") and wholly owned
subsidiary of MobilePro Corp., a Delaware corporation ("PARENT"), the Company
and the Selling Lenders pursuant to which the Buyer is purchasing the Company
Debt from the Selling Lenders, and Cerberus is transferring the Cerberus
Subordinated Debt to the Buyer. Such transfers of the Company Debt and the
Cerberus Subordinated Debt are further evidenced by a certain Transfer and
Assignment and Assumption of Debt and Related Loan Documents executed and
delivered contemporaneously with this Release.
D. In connection with the transactions contemplated in the Agreement,
the Company, on the one hand, and the Selling Lenders, on the other hand, desire
to execute a mutual release of certain claims between them as described below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agrees
as follows:
1. Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreement.
2. Each Selling Lender hereby releases, acquits and forever
discharges (a) the Company and its insurers, employees,
agents, officers, directors, assigns and any other person or
entity connected with it (collectively, the "COMPANY-RELATED
ENTITIES") from any and all liability now accrued or hereafter
to accrue on account of any and all causes of action, claims,
damages, demands of any kind whatsoever, in law or in equity,
known or unknown, in any way arising from the the Selling
Lender's relationship with the Company, either as a lender to
the Company under the Loan Documents or as a stockholder of
the Company, through the date of this Release; provided that
the foregoing release is not intended, and should not be
construed, to release or discharge the Company or any of the
Company-Related Entities from any of their respective (a)
obligations that are created under the Agreement or any of the
Company Ancillary Agreements (as that term is defined in the
Agreement), (b) obligations under the Loan Documents, (c)
obligations under the Cerberus Documents, or (d) obligations
under the Agreement to Exchange Indebtedness for Personal
Property dated as of September __, 2004.
3. The Company hereby releases, acquits and forever discharges
each Selling Lender and its respective insurers, employees,
agents, partners, members, managers, officers, directors,
assigns and any other person or entity connected with it
(collectively, the "SELLING LENDER-RELATED ENTITIES") from any
and all liability now accrued or hereafter to accrue on
account of any and all causes of action, claims, damages,
demands of any kind whatsoever, in law or in equity, known or
unknown, in any way arising from the relationship of the
Selling Lenders with the Company, whether as borrower from the
Selling Lenders under the Loan Documents or as issuer of
shares of capital stock held by the Selling Lenders through
the date of this Release; provided that the foregoing release
is not
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intended, and should not be construed, to release or discharge
any of the Selling Lenders or any of the Selling
Lender-Related Entities from obligations that are created
under the Agreement or any of the Selling Lender Ancillary
Agreements (as that term is defined in the Agreement).
4. Nothing contained herein shall preclude the Buyer from
enforcing against the Company its rights under any of the Loan
Documents and the Cerberus Documents transferred to the Buyer,
including, without limitation, any security interest acquired
in the Collateral, after the date hereof if it may lawfully do
so.
5. This Release is entered into as a free and voluntary act by
the parties hereto which had the opportunity to and did
consult with and were counseled by an attorney of their own
choosing in the review of this Release.
6. This Release may be executed in any number of counterparts,
each of which will be an original as regards any party whose
signature appears thereon and all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Release
effective as of the date first written above.
THE COMPANY:
DAVEL COMMUNICATIONS, INC.
By: /s/ Woody M. McGee
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Name: Woody M. McGee
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Title: President
---------------------------------
THE SELLING LENDERS:
WELLS FARGO FOOTHILL, INC.
By: /S/ AMY LAM
------------------------------------
Name: Amy Lam
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Title: Vice President
---------------------------------
FOOTHILL PARTNERS III, L.P.
By: /S/ DENNIS R. ASCHER
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Name: Dennis R. Ascher
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Title: Managing General Partner
---------------------------------
ABLECO FINANCE LLC
By: /S/ KEVIN GENDA
------------------------------------
Name: Kevin Genda
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Title: S. V. P.
---------------------------------
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CERBERUS PARTNERS, L.P.
By: Cerberus Associates, LLC, as General
Partner
By: /S/ KEVIN GENDA
------------------------------------
Name: Kevin Genda
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Title: Managing Director
---------------------------------
ARK CLO 2000-1, LIMITED
BY: PATRIARCH PARTNERS, LLC
ITS COLLATERAL MANAGER
By: /S/ LYNN TILTON
------------------------------------
Name: Lynn Tilton
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Title: Manager
---------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /S/ FRANK P. DEVINE
------------------------------------
Name: Frank P. Devine
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Title: Vice President
---------------------------------
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U.S. BANK NATIONAL ASSOCIATION
By: /S/ JAMES P. CECIL
------------------------------------
Name: James P. Cecil
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Title: Vice President
---------------------------------
BNP PARIBAS
By: /S/ BROCK T. HARRIS
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Name: Brock T. Harris
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Title: Director
---------------------------------
MORGAN STANLEY PRIME INCOME TRUST
By: /S/ KEVIN EGAN
------------------------------------
Name: Kevin Egan
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Title: Vice President
---------------------------------
AVENUE SPECIAL SITUATIONS FUND II, LP
By: /S/ MARC LASRY
------------------------------------
Name: Marc Lasry
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Title: Managing Member
---------------------------------
By: Avenue Capital Partners II, LLC,
General Partner
By: GL Partners II, LLC, Managing
Member of the General Partner
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Approved and Accepted by:
THE BUYER:
DAVEL ACQUISITION CORP.
By: /S/ JAY O. WRIGHT
-------------------------------------
Jay O. Wright
President and Chief Executive Officer
PARENT:
MOBILEPRO CORP.
By: /S/ JAY O. WRIGHT
-------------------------------------
Jay O. Wright
President and Chief Executive Officer
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