EXHIBIT 2.2
MANAGEMENT SUPPORT AND POST-PETITION FINANCING AGREEMENT
THIS MANAGEMENT SUPPORT AND POST-PETITION FINANCING AGREEMENT
("Agreement") is made and entered into as of May 25, 2001, by and between
nTelecom Holdings, Inc., a Delaware Corporation ("nTelecom"); OAN Services,
Inc., a Texas Corporation ("OAN"); and OAN Services of Florida, Inc., a Texas
Corporation ("OAN Florida" and together with nTelecom and OAN, the "OAN
Parties"), on the one hand, and ACI Telecommunications, Inc., a Delaware
Corporation ("ACI"), on the other hand.
RECITALS
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WHEREAS, the OAN Parties are engaged in the business of, among other things
(i) serving as a telecommunications clearinghouse between telecommunications and
telecommunications-related service providers ("Customers") and local exchange
carriers ("LECs"), and (ii) the billing, processing and collection of payments
and information relating to such payments, and all ancillary services performed
in connection therewith (the "Transaction Processing Business");
WHEREAS, the OAN Parties intend to promptly file voluntary petitions under
chapter 11, Title 11 United States Code ("Bankruptcy Code") in the United States
Bankruptcy Court for the Central District of California (the date thereof is
hereinafter referred to as the "Petition Date");
WHEREAS, concurrently herewith the OAN Parties and certain of their
affiliated entities, as seller, and ACI, as purchaser, have entered into and
executed an Asset Purchase Agreement, the terms and conditions of which are
subject to approval of the Bankruptcy Court in the OAN Parties' contemplated
chapter 11 cases, after notice and a hearing in accordance with Sections 363(b),
(f) and 365 of the Bankruptcy Code;
WHEREAS, pursuant to the Asset Purchase Agreement, the OAN Parties and
certain of their affiliates which are parties thereto, will sell, transfer and
assign to ACI, subject to approval of the Bankruptcy Court and free and clear of
all liens, claims or other interests, certain tangible and intangible property,
including without limitation, all of the OAN Parties' interest in numerous
executory contracts with some or all of the OAN Parties' existing Customers and
LECs (the "Assigned Contracts," and together with the remaining assets described
in the Asset Purchase Agreement, the "Acquired Assets");
WHEREAS, until such time as the Asset Purchase Agreement and the assumption
and assignment of the Assigned Contracts has been approved by final order of the
Bankruptcy Court, and the Acquired Assets, including the Assigned Contracts,
have been validly transferred and assigned to ACI, the OAN Parties desire to
engage ACI to provide management support services as more particularly described
in Paragraph 1 below ("Services") and post-petition financing to the OAN Parties
in their capacities as debtors in possession as more particularly described in
Paragraph 3 below, so as to preserve, protect and maintain the Acquired Assets
for the ultimate benefit of the OAN Parties' respective bankruptcy estates and
their creditors; and
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WHEREAS, in anticipation of acquiring the Assigned Contracts and the other
Acquired Assets, ACI is willing to provide the financing and Services to the OAN
Parties on the terms and subject to the conditions stated herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the OAN Parties and ACI do
hereby promise and agree, subject to approval of the Bankruptcy Court, as
follows:
1. Scope of ACI Services. Commencing upon the date on which the
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Bankruptcy Court enters an interim or final order authorizing and approving this
Agreement (the "Commencement Date"), and continuing during the Term hereof, ACI
shall use its commercially reasonable efforts to provide the OAN Parties with
operational and general management advice for day-to-day operations related to
the Acquired Assets. Without limiting the generality of the foregoing, ACI shall
consult with and advise the OAN Parties with respect to their relationships and
contracts with their Customers and LECs included in the Acquired Assets.
Specifically, ACI will consult with and advise the OAN Parties regarding their
third party billing clearinghouse services; advanced funding of Customer
receivables; maintenance of the call center operations; maintenance of sales and
corporate development; maintenance of LEC relations; utilization of
administrative personnel; and utilization of all systems and software used in
the normal course of business. All of such services are referred to in this
Agreement as the "Services." The OAN Parties and ACI have mutually agreed upon
a Budget (as defined below) for the projected cost of operations of the OAN
Parties during the first ninety (90) days of the OAN Parties' bankruptcy cases,
as set forth in Paragraph 4(a) below.
2. Responsibilities of the OAN Parties. Commencing on the
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Commencement Date, and continuing until termination of this Agreement, the OAN
Parties agree as follows:
(a) The OAN Parties shall provide ACI with all information and
materials in their possession reasonably requested by ACI to enable ACI to
provide the Services and perform its obligations under this Agreement in a
reasonable, cost-effective and timely manner;
(b) The OAN Parties shall perform any and all acts reasonably
necessary to maintain and preserve the Acquired Assets in the ordinary course of
business, and shall consult and cooperate with ACI regarding any such acts
outside the ordinary course of business;
(c) Subject to any applicable requirements of the Bankruptcy Code
and Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules"), upon the
reasonable request of ACI the OAN Parties shall timely exercise whatever rights
they have with regard to the Acquired Assets, including but not limited to their
rights (whether in law or equity) with respect to breach, termination, setoff,
indemnity, waiver, sub-contracting and assignment;
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(d) The OAN Parties shall provide ACI with any and all financial
information reasonably requested by ACI, including, without limitation, copies
of all pleadings filed with the Bankruptcy Court, and reports, budgets or other
financial information filed with or submitted to the Office of the United States
Trustee in their respective Title 11 cases;
(e) The OAN Parties shall consult and strategize with ACI to
implement cost and overhead reduction in connection with the Transaction
Processing Business;
(f) The OAN Parties shall use their respective best efforts to
process, bill and collect as expeditiously as possible, all pre-petition
previously uncollected end-user accounts receivable for services rendered prior
to the Petition Date; and
(g) On the Petition Date, or as soon as practicable thereafter,
the OAN Parties shall file and notice for hearing, motions seeking Bankruptcy
Court approval of (i) the assumption, and authorization and approval of the
terms and conditions of this Agreement; (ii) the bidding procedures motion, and
then, when a hearing date is set, the sale of the Acquired Assets to ACI,
including but not limited to the Customer Contracts (as identified in the Asset
Purchase Agreement), pursuant to Sections 363 and 365 of the Bankruptcy Code,
upon the terms and conditions set forth in the Asset Purchase Agreement; (iii)
post-petition financing by ACI to the OAN Parties pursuant to Section 364 of the
Bankruptcy Code upon the terms and conditions set forth herein; and (iv) post-
petition financing provided by RFC Capital Corporation ("RFC") to the OAN
Parties pursuant to Section 364 of the Bankruptcy Code.
Notwithstanding the foregoing, nothing contained herein shall
reduce, diminish or eliminate the duties and obligations of the OAN Parties as
debtors in possession, under and pursuant to the Bankruptcy Code, Rules of
Bankruptcy Procedure or Local Rules and U.S. Trustee Guidelines, as applicable
to their respective Title 11 cases.
3. Post-Petition Financing. Commencing on the Commencement Date and
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continuing until the earlier of the occurrence of an Event of Default (as
defined herein) or the termination of this Agreement, ACI shall make periodic
secured loans and advances ("DIP Loans") to or for the benefit of the OAN
Parties in the amounts, and upon the terms and conditions, which follow:
(a) DIP Loan Amount. The principal amount of the DIP Loan shall
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be a sum equal to, but not exceeding, the lesser of (I) the projected amount of
the OAN Parties' cash operating deficit as reflected in the agreed upon Budget
provided in Section 4(a) hereinbelow and attached hereto as Schedule 1, and (II)
the actual amount of such cash operating deficit. Any unused portion of the DIP
Loan availability (i.e., the difference between the Budgeted deficit and the
actual cash operating deficit) from one month may be carried over and utilized
by the OAN Parties in subsequent months; provided, however, that the maximum
principal amount of the DIP Loan shall not exceed the sum of $300,000.
(b) Interest. Interest shall accrue on the unpaid principal
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amount of all DIP Loans from the date of funding through the date of repayment,
at the rate of Citibank Prime plus 1% per annum.
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(c) Joint and Several Liability. The indebtedness represented by
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the DIP Loans, including all principal, accrued and unpaid interest, fees, costs
or other expenses accrued thereon, shall constitute a joint and several
liability of each of the OAN Parties and their respective bankruptcy estates.
(d) Collateral. As collateral for repayment of the DIP Loans,
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including all principal, interest, fees, costs or expenses related thereto, and
subject to approval of the Bankruptcy Court pursuant to Sections 364(c)(2) and
364(d)(1) of the Bankruptcy Code, the OAN Parties and each of them, hereby grant
to and in favor of ACI, a valid, perfected and enforceable security interest in
and lien upon all property of the OAN Parties and property of their respective
bankruptcy estates, of any kind and nature whatsoever, whether now existing or
hereafter acquired or arising, including recovery claims arising from or under
provisions of the Bankruptcy Code, and all proceeds and products thereof. The
lien and security interest granted hereunder shall be a prior perfected security
interest, not subject to priming or surcharge, and senior in rank and priority
to all other liens and claims, except the following: (I) all valid and non-
avoidable pre-petition liens and security interests, and all Court-approved
post-petition liens and security interests granted in favor of the OAN Parties'
existing senior secured lender, RFC, to secure an aggregate indebtedness not
exceeding $9.2 million including principal and accrued interest; and (II) an
administrative claims carve-out in an amount not to exceed $500,000 less the
amount of any post-petition retainers or post-petition advance deposits paid by
or on behalf of the OAN Parties to any professional persons (and as further
defined in the DIP Financing Stipulation with RFC, the "Administrative Claims
Carve-Out").
(e) Priority. The DIP Loans and all obligations of the OAN
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Parties thereunder, shall, in addition to the collateral securing same,
constitute superpriority administrative expense claims under Section 364(c)(1)
of the Bankruptcy Code, subject and subordinate only to (I) the OAN Parties'
Court-approved repayment obligations in connection with post-petition loans and
advances funded by RFC in the aggregate amount originally approved by the
Bankruptcy Court; and (II) the Administrative Claims Carve-Out.
(f) Funding; Use of Proceeds. Upon entry of an unstayed order of
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the Bankruptcy Court approving this Agreement on an interim or final basis, ACI
shall fund and disburse $100,000 of the principal of the DIP Loan to the OAN
Parties, which shall be held in a separate debtor in possession trust account,
and shall be drawable by the OAN Parties after 3-days' notice to ACI, as needed
in accordance with the Budget. Subject to the limitations and conditions stated
herein, the balance of the DIP Loan shall be funded as required as soon as
practicable after the close of each monthly accounting period during the Term of
this Agreement; accordingly, ACI's funding obligation shall survive the Closing
under the Asset Purchase Agreement. The proceeds of all DIP Loans shall be used
solely for the purposes and in the corresponding amounts set forth in the Budget
as amended from time to time pursuant to Section 4(a) below, unless otherwise
mutually agreed by the parties. Without limiting the generality of the
foregoing, proceeds of the DIP Loans shall be used only for ordinary and
necessary operating expenses of the Transaction Processing Business, including
Budgeted new business development expenses, incurred in the ordinary course of
business after the commencement of the OAN
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Parties' chapter 11 cases, and prior to the Closing (or the Bankruptcy Court's
denial of approval) of the transaction evidenced by the Asset Purchase
Agreement.
(g) Repayment Terms. Upon entry of a final order of the
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Bankruptcy Court approving and authorizing the sale and assignment of the
Acquired Assets, including the Customer Contracts, to ACI, and the Closing of
the transaction evidenced by the Asset Purchase Agreement, all obligations of
the OAN Parties with respect to the DIP Loans shall be credited to the Purchase
Price (as defined therein), and shall be deemed repaid in full. Upon the
occurrence of an Event of Default hereunder and the termination of this
Agreement, or the occurrence of an Event of Default resulting in the termination
of the Asset Purchase Agreement, the amount of all DIP Loans, including
principal, accrued and unpaid interest, costs, expenses and other fees, shall be
immediately due and payable in full and without further Court order. The
automatic stay of Section 362(a) of the Bankruptcy Code shall be modified
accordingly.
(h) Documentation. Upon request of ACI, the OAN Parties shall
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enter into and execute such additional loan and security documentation as may be
reasonably requested by ACI and consistent with the terms hereof, including
without limitation, a loan agreement, promissory note, UCC-1 financing
statements and intercreditor agreement. The failure to obtain, execute or
deliver such additional documentation shall not affect the validity or
enforceability of the DIP Loan or the security therefor as provided herein.
4. Additional Covenants. The OAN Parties and ACI further agree as
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follows:
(a) Budget. The OAN Parties and ACI have mutually agreed upon a
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budget for the projected cost of operations of the OAN Parties during the first
90 days after the Petition Date in the OAN Parties' Title 11 cases (the
"Budget"), which Budget is attached hereto as Schedule 1. The Budget may be
modified only by mutual written consent of the OAN Parties and ACI. Subject to
all other terms and conditions stated herein, ACI's obligation to fund the DIP
Loans shall be limited to the amount of the cash operating deficit reflected in
and accounted for in the Budget. Any and all operating deficits that are not
accounted for within the Budget shall be and remain the sole responsibility of
the OAN Parties and their respective bankruptcy estates.
(a.1.) Any and all pre-petition accounts receivable
collected before or after the Petition Date shall be used to fund the operations
of the OAN Parties, the Plan of Reorganization, and any and all administrative
expense obligations of the OAN Parties, except to the extent such funds are used
to cure the Assigned Contracts as provided herein, in the Asset Purchase
Agreement (or in (S)365 Motion). Any pre-petition accounts receivable collected
by the OAN Parties or on their behalf, shall not be included within the accrual-
based Budget attached hereto as Schedule 1.
(a.2.) ACI shall consult with the OAN Parties in order to
maximize the likelihood that the OAN Parties' bankruptcy estates do not incur a
monthly operating loss greater than any such loss amount reflected in the
approved Budget, exclusive of
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bankruptcy administrative expenses, which shall be borne by the OAN Parties'
bankruptcy estates.
(b) Subject to the terms and conditions of the Asset Purchase
Agreement and Bankruptcy Court approval thereof, ACI has agreed to assume the
OAN Parties' liability for post-petition defaults, if any, with respect to
existing OAN Customer and LEC contracts that are ultimately assigned to ACI
pursuant to a final order entered by the Bankruptcy Court ("ACI Customer
Guarantee"). To the extent that the OAN Parties fail to pay and discharge any
post-petition liabilities to the Customers included in the Acquired Assets, the
OAN Parties hereby grant to and in favor of ACI a lien upon and a security
interest in OAN's post-petition accounts receivable and the proceeds thereof,
as security for reimbursement and repayment by the OAN Parties of all amounts
advanced by ACI pursuant to the ACI Customer Guarantee. The additional lien and
security interest granted to ACI herein shall be junior and subordinate only to
the liens and security interests in such collateral (I) in favor of RFC on
account of non-avoidable pre-petition or Bankruptcy Court-approved post-petition
loans and advances made to the OAN Parties, (II) in favor of ACI pursuant to the
DIP Loan; and (III) for purposes of the Administrative Carve-Out.
(c) Customer Consents; Contingent Payout. Immediately after the
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Petition Date, ACI and the OAN Parties shall jointly present and seek to obtain
commitments from current OAN Customers to agree to the assumption and assignment
of the Customer Contracts to ACI. ACI and the OAN Parties will present the OAN
Customers with an Instrument of Consent and Assignment substantially in the form
attached as Exhibit G to the Asset Purchase Agreement ("Consent"), providing
for, among other things, such Customer's consent to the assumption of its
Contract by the relevant OAN Party, and the assignment of its Contract to ACI.
Each Consent may include, on a case by case basis, but shall not be limited to,
the following consideration to the Customer: (I) an immediate payment from the
OAN Parties' estates representing a partial cure payment to the Customer under
Section 365(b)(1)(A) and (B) of the Bankruptcy Code ("Cure Payment"); (II)
additional Cure Payments in the normal course of business from the OAN Parties'
Estates; and (III) a contingent, deferred payout ("Contingent Payout") from ACI
whereby any OAN Customer that consents to the assumption and assignment of its
Contract to ACI, shall be entitled to receive deferred payments equaling some
portion or all of the remaining balance of its Cure Payment (after first
applying all Cure Payments funded by the OAN Parties' estates) subject to
negotiation. The Contingent Payout shall be conditioned upon the particular
Customer continuing to deliver messages for billing by ACI after such Customer's
Contract is assigned to ACI, and shall terminate upon the Customer ceasing to be
a Customer of ACI. The Consent will be subject to Bankruptcy Court approval.
Each Customer that executes such Consent will not be required to waive any
unsecured claims it may have against the OAN Parties or their bankruptcy estates
(except to the extent of the Contingent Pay-Out); however the Customer shall be
required to (x) waive any right to offset any pre-assignment defaults or any
other pre-assignment claims against amounts due and owing to ACI under the
Assigned Customer Contract, and (y) agree that ACI shall have the right to
deduct from and setoff against any amounts due the Customer after the date of
assignment, in an amount equal to any adjustments, deductions, setoffs or true-
ups made by the LECs post-assignment with respect to such Customer or payments
previously remitted on account of such Customer, whether such
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adjustments, deductions setoffs or true-ups result from transactions before or
after the Petition Date or before or after the date of assignment.
(d) Consent to Assignment of LEC Contracts. Immediately after
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the Petition Date, ACI and the OAN Parties shall jointly present and seek to
obtain commitments from the OAN Parties' current LEC providers to consent to the
assumption and assignment of the LEC Contracts to ACI. ACI and the OAN Parties
will present each LEC designated by ACI with mutually agreed upon form of
consent ("LEC Consent") to the assumption and assignment of its Contract to ACI.
Each LEC Consent shall include provisions for, (x) unless the particular LEC
agrees to less favorable treatment, payment by the OAN Parties' Estates of all
past-due amounts owing to the LEC (estimated as approximately $1.5 million in
the aggregate); and (y) assumption and payment in the ordinary course of
business by ACI of all other pre-assignment amounts due the LEC (estimated at
approximately $3.5 million in the aggregate). The Purchase Price payable under
the Asset Purchase Agreement shall include a cash payment from ACI to the OAN
Parties equal to the difference between the aggregate amount of the LEC deposits
as of the Closing Date and the amount of LEC indebtedness assumed by ACI as of
the Closing Date. The LEC Consent will be subject to Bankruptcy Court approval
concurrently with approval of the sale of the Acquired Assets.
(e) Non-Consenting Customers. Subject to Court approval of the
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sale of the Acquired Assets to ACI, the OAN Parties and ACI agree that with
respect to any existing OAN Customers who fail to deliver a Consent within 40
days after the Petition Date, the OAN Parties will subcontract their rights and
obligations for the remaining term of the relevant Customer Contract to ACI,
effective upon the Closing of the Asset Purchase Agreement, such that ACI, on a
per record fee basis, will assume operational and back-office functions in order
to ensure that the OAN Parties can continue to process and provide services to
each non-consenting Customer after the Closing of the Asset Purchase Agreement
and assumption of the Assigned Customer Contracts. A form of such Sub-Contract
will be negotiated and agreed upon by the parties hereto.
5. Independent Contractor Status. ACI is an independent contractor
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in the performance of the Services under this Agreement and shall determine the
method, details and means of performing the Services. ACI is not an agent of OAN
and has no authority whatsoever to bind OAN by contract or agreement of any
kind.
6. Compensation. Subject to Court approval of the sale and
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assignment of the Acquired Assets to ACI, and subject further to the provisions
of Section 7 below, ACI agrees to waive any right to receive as compensation for
the Services, all post-petition profits, if any, realized by the OAN Parties
with respect to the Acquired Assets prior to the Closing of the transaction
reflected in the Asset Purchase Agreement. For any and all new Customer
contracts obtained by OAN for ACI during the Term of this Agreement, ACI shall
pay OAN a royalty on gross revenues, exclusive of LEC fees, as follows: (i) 15%
for the first twelve (12) months of the Customer contract; (ii) 10% for the
second twelve (12) months of the Customer contract, if any; and (iii) 5% for the
third twelve (12) months of the Customer contract, if any.
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7. Expense Reimbursement. For purposes of this Agreement,
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"Reimbursable Costs" shall include all of a parties' out-of-pocket costs and
expenses, including legal fees incurred in connection with negotiations for the
purchase and sale of the Acquired Assets, the negotiation and preparation of the
Asset Purchase Agreement and this Agreement, and, in the case of ACI, the costs
and expenses of ACI's personnel in rendering the Services and implementing the
DIP Loan, but excluding the amount of any DIP Loans. If ACI is not the
successful purchaser of the Acquired Assets at a sale under Section 363(b) and
(f) of the Bankruptcy Code, ACI shall be entitled to recover, as a first
priority administrative expense claim under Sections 507(a)(1) and 503(b)(1)(A)
of the Bankruptcy Code, the sum of $400,000 as reimbursement for its
Reimbursable Costs; provided, however, that such claim shall not be payable from
the Administrative Claims Carve-Out. If ACI is the successful purchaser of the
Acquired Assets, ACI and the OAN Parties will each bear their own Reimbursable
Costs.
8. Term. The term of this Agreement (the "Term") shall commence on
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the date hereof subject to entry of the Bankruptcy Court's interim or final
approval orders, and shall continue until the earlier of (i) the occurrence of
an Event of Default as defined in Section 10 below; (ii) the closing of the
transactions contemplated by the Asset Purchase Agreement (the "Closing"), or
(iii) the ninetieth (90th) day after the Petition Date, unless extended by ACI
on a month-to-month basis, which extension may be terminated by ACI upon 15-
days' notice to the OAN Parties. Upon the termination of this Agreement,
neither party shall be further obligated under this Agreement except for the OAN
Parties' Expense Reimbursement obligation in accordance with Section 7 above, if
approved by the Bankruptcy Court, and, if such termination is not the result of
an Event of Default, ACI's DIP Loan funding commitment under Section 3 above.
9. Bankruptcy Court Approval. This Agreement is conditioned upon,
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and shall become effective only upon, entry of an interim or final order of the
Bankruptcy Court approving the assumption of this Agreement by each of the OAN
Parties as debtors in possession, and approving and authorizing each of the
terms and conditions hereof.
10. Events of Default.
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Each of the following events, acts, omissions or conditions (each
an "Event of Default") shall constitute a material default of the terms of this
Agreement. Upon the occurrence of an Event of Default, this Agreement will
automatically terminate unless the OAN Parties and ACI mutually agree in writing
to continue the Agreement, or the non-defaulting party elects not to terminate
this Agreement:
(a) Failure by the OAN Parties to satisfy their obligations as
set forth in sections 2 and 4 of this Agreement;
(b) Failure by ACI to satisfy its obligations as set forth in
sections 1, 3 and 4 of this Agreement;
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(c) The sale of the Acquired Assets to ACI does not Close within
90 days of the Petition Date and ACI terminates this Agreement by written notice
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to the OAN Parties as set forth in section 8 above;
(d) The Bankruptcy Court declines to approve the sale, transfer
and assignment of the Acquired Assets in accordance with the terms and
conditions of the Asset Purchase Agreement, and ACI terminates the Asset
Purchase Agreement;
(e) The OAN Parties' bankruptcy cases are either (I) dismissed;
(II) converted to a Chapter 7; or (III) a Chapter 11 Trustee is appointed
therein;
(f) An event of default has occurred and has not been waived by
ACI under the Asset Purchase Agreement;
(g) Failure of the OAN Parties to have obtained, by the date of
the hearing on the motion to approve the sale of the Acquired Assets, Consents
executed by existing Customers which aggregate 10.8 million call records or
$540,000 in processing fees per month; and
(h) Failure of the OAN Parties to have obtained entry of an
interim or final order of the Bankruptcy Court authorizing and approving the DIP
Financing Stipulation with RFC (pursuant to which RFC will extend post-petition
secured financing to the OAN Parties) within ten (10) days after the Petition
Date.
11. Notices. All notices, requests, demands and other communications
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made under this Agreement shall be in writing and shall be deemed given upon (a)
confirmation of receipt of a facsimile transmission, (b) confirmed delivery by a
standard overnight carrier or when delivered by hand, or (c) the expiration of
three (3) business days after the day when mailed by registered or certified
mail (postage pre-paid, return receipt requested), addressed to the respective
parties at the following addresses (or such other address for a party as shall
be specified by like notice):
If to the OAN Parties, to:
OAN Services, Inc.
9255 Corbin Avenue
Northridge, CA 91324
Attention: President and General Counsel
Facsimile: 818-709-1825
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With a copy to:
Richard L. Wynne, Esq.
Sharon M. Kopman, Esq.
WYNNE SPIEGEL ITKIN, A Law Corporation
1901 Avenue of the Stars
Suite 1600
Los Angeles, CA 90067
If to ACI, to:
ACI Telecommunications, Inc.
190 S. LaSalle Street, Suite 1710
Chicago, IL 60603
Attn: Patrick J. Haynes, III
Fax (312) 419-0172
With copies to:
Richard T. Peters, Esq.
Michael Gould, Esq.
Sidley Austin Brown & Wood
555 West Fifth Street, Suite 4000
Los Angeles, California 90013
Fax: (213) 896-6600
Bruce A. Cheatham, Esq.
Winstead, Sechrist & Minick
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
Fax (214) 745-5390
12. Entire Agreement. This Agreement and any agreements between or
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among the parties hereto of even date herewith constitute the entire agreement
among the parties hereto relating to the subject matter hereof, and all prior
agreements, correspondence, discussions and understandings of the parties
(whether oral or written) are merged herein and superseded hereby, it being the
intention of the parties hereto that this Agreement and the instruments and
agreements contemplated hereby shall serve as the complete and exclusive
statement of the terms of their agreement together. No amendment, waiver or
modification hereto or hereunder shall be valid unless in writing signed by an
authorized signatory of the party or parties to be affected thereby.
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13. Assignment. This Agreement and the rights and obligations
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hereunder shall not be assignable or transferable (i) by ACI without the prior
written consent of the OAN Parties, except to an affiliate of ACI or to a
financial institution in connection with a financing related to this Agreement;
or (ii) by the OAN Parties without the prior written consent of ACI. As to
either of such exceptions which requires the approval of the other party,
approval shall not be unreasonably withheld.
14. Binding Effect. This Agreement shall be binding upon the parties
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hereto and their respective successors and permitted assigns.
15. Section Headings. The headings in this Agreement are for
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purposes of convenience and ease of reference only and shall not be construed to
limit or otherwise affect the meaning of any part of this Agreement.
16. Severability. The parties agree that if any provision of this
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Agreement shall under any circumstances be deemed invalid or inoperative, this
Agreement shall be construed with the invalid or inoperative provision deleted,
so long as the original intent of the parties remain intact, and the rights and
obligations of the parties shall be construed and enforced accordingly.
17. Applicable Law, Venue and Retention of Jurisdiction. This
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Agreement shall be governed and construed in accordance with the laws of the
State of California without regard to the rules of conflict of laws of the State
of California or any other jurisdiction. All actions brought, arising out of,
or related to this Agreement shall be brought in the Bankruptcy Court, and the
Bankruptcy Court shall retain jurisdiction to determine any and all such
actions.
18. Counterparts. This Agreement may be executed in one or more
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original or facsimile counterparts, all of which shall be considered but one and
the same agreement, and shall become effective when one or more such
counterparts have been executed by each of the parties and delivered to the
other parties.
19. Use of Terms. In this Agreement, (i) the words "hereof,"
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"herein," "hereto," "hereunder" and words of similar import mean and refer to
this Agreement as a whole and not merely to the specific section or clause in
which the respective word appears, (ii) words importing gender include the other
genders as appropriate and (iii) any terms defined in this Agreement may, unless
the context otherwise requires, be used in the singular or the plural depending
on the reference.
20. Facsimile Copy. This Agreement may be executed in facsimile copy
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with the same binding effect as an original.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first above written.
ACI Telecommunications, Inc.
By: /s/ Michael J. Labedz
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Name Michael J. Labedz
Title President
nTelecom Holdings, Inc.,
a Delaware Corporation
By: /s/ Harvey M. Berg
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Name Harvey M. Berg
Title President
OAN Services, Inc.,
a Texas Corporation
By: /s/ Harvey M. Berg
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Name Harvey M. Berg
Title President
OAN Services of Florida, Inc.,
a Texas Corporation
By: /s/ Harvey M. Berg
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Name Harvey M. Berg
Title President
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