Exchange Agreement - Tel-Save.com Inc., Mark Pavol, and D&K Grantor Retained Annuity Trust
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is entered into as of this 31st
day of December, 1998, by and between Tel-Save.com, Inc., a Delaware corporation
(the "Company"), Tel-Save, Inc., a Pennsylvania corporation and a subsidiary of
the Company (the "Subsidiary"), and Mark Pavol as Trustee of that certain D&K
Grantor Retained Annuity Trust dated June 15, 1998 (the "Participant"). The
Company, the Subsidiary, and the Participant shall sometimes be referred to
individually as a "Party" and two or more of them shall sometimes be referred to
collectively as the "Parties."
RECITALS
A. The Company owns and holds four Subordinated Promissory Notes, each
dated August 25, 1998, each made by Communication Telesystems
International, d.b.a. WorldxChange Communications ("WorldxChange"),
and each originally made payable to Gerard Klauer Mattison & Co., Inc.
("GKM") (except that the Subordinated Promissory Note in the initial
principal amount of $1,200,000 was originally made payable to the
Company). These notes are in the initial principal amounts of
$20,000,000, $20,000,000, $15,000,000, and $1,200,000, respectively.
Copies of these notes are attached hereto as Exhibits A-1 through A-4,
respectively. These notes shall be referred to sometimes individually
as a "WorldxChange Note" and collectively as the "WorldxChange Notes."
B. The WorldxChange Notes are secured as provided in that certain
Security Agreement dated as of August 25, 1998, by and between
WorldxChange and GKM (the "Security Agreement"), and by those two
certain Stock Pledge Agreements, each dated as of August 25, 1998, by
and between GKM and Roger B. Abbott and Rosalind M. Abbott and Edward
S. Soren, respectively (collectively, the "Pledge Agreements"). A copy
of the Security Agreement is attached hereto as Exhibit B. Copies of
the Pledge Agreements are attached hereto as Exhibits C-1 and C-2,
respectively. The WorldxChange Notes are subordinated as provided in
that certain Intercreditor Agreement dated as of August 25, 1998,
between Foothill Capital Corporation, a California corporation, the
Company, and GKM (the "Intercreditor Agreement"). A copy of the
Intercreditor Agreement is attached hereto as Exhibit D. The
WorldxChange Notes, the Security Agreement, the Pledge Agreements, and
the Subordination Agreement may sometimes be referred to herein
collectively as the "WorldxChange Loan Documents."
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C. GKM has assigned to the Company all of its rights, title, and interest
in and to: each of the WorldxChange Notes, the Security Agreement, and
the two Pledge Agreements.
D. The Participant owns and holds those certain 4-1/2% Convertible
Subordinated Promissory Notes due 2002 in the aggregate principal
amount of $16,070,000, and those certain 5% Convertible Subordinated
Promissory Notes due 2004 in the aggregate principal amount of
$46,475,000, each made by the Company. These notes shall be referred
to sometimes individually as a "Company Note" and collectively as the
"Company Notes."
E. The Parties desire that the Company grant to the Participant an
approximately ninety-nine percent (99%) participation in the
WorldxChange Notes, that the Participant assign the Company Notes to
the Company, that the Subsidiary act as collateral and collection
agent with regard to the WorldxChange Notes, and that the Parties
enter into certain related transactions, all as set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth below, and for other consideration the receipt and adequacy of which is
hereby acknowledged, the Parties hereby agree as follows:
1. Recitals. The Parties acknowledge and agree that the Recitals to this
Agreement are true and correct.
2. The Company Notes.
2.1 The Participant represents and warrants to the Company that the
Participant is the owner and holder of the Company Notes, free
and clear of any and all liens, claims, and encumbrances, except
for restrictions imposed by applicable securities laws.
2.2 This Agreement has been duly authorized, executed, and delivered
by the Trustee and, when executed and delivered by the Company
and the Subsidiary, shall constitute the valid and binding
agreement of the Trust, enforceable against the Trust in
accordance with its terms. This Agreement does not violate any
charter document of the Trust nor any agreement by which the
Trust or any of its property is bound.
2.3 The Participant's Interest is being acquired by the Trustee for
investment for the Trust's account, not as an agent or nominee,
and not with a view to the resale or distribution thereof. The
Trustee understands that the Participant's Interest has not been
registered or qualified under any applicable securities laws and
that the
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transfer thereof is restricted by such laws. The Trustee
represents that he is experienced in evaluating and investing in
interests similar to the Participant's Interest and has such
knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of such investment,
and that the Trust has the ability to bear the economic risks of
such investment.
2.4 The Participant acknowledges that it has entered into this
Agreement in reliance upon its own independent investigation of
all relevant facts and circumstances, and not in reliance on any
information, representation, or advice provided by the Company or
the Subsidiary. The Participant further acknowledges that the
Participant shall, independently and without reliance on the
Company or the Subsidiary and based on such documents and
information as the Participant deems appropriate at the time,
continue to make its own independent credit and other decisions
in taking or not taking any action under this Agreement.
2.5 The Participant hereby absolutely and irrevocably sells, assigns,
and transfers to the Company all of the Participant's rights,
title, and interest in and to each of the Company Notes. Such
rights are evidenced only by a book entry and not by a promissory
note.
2.6 Concurrently with the execution and delivery hereof, the
Participant is delivering to the Company an appropriate letter of
authorization transferring the Company Notes to an account to be
designated by the Company.
3. The WorldxChange Notes.
3.1 The Company represents and warrants to the Participant that the
Company is the owner and holder of the WorldxChange Notes, free
and clear of any and all liens, claims, and encumbrances, except
for restrictions imposed by applicable securities laws, and that
the Company is the sole Secured Party under the Security
Agreement and under the Pledge Agreements.
3.2 This Agreement has been duly authorized, executed, and delivered
by the Company and the Subsidiary and, when executed and
delivered by the Trustee, shall constitute the valid and binding
agreement of the Company and the Subsidiary, enforceable against
the Company and the Subsidiary in accordance with its terms. This
Agreement does not violate the Certificate of Incorporation or
By-Laws of the Company or the Subsidiary, nor any agreement by
which the Company or the Subsidiary or any of their property is
bound. Neither the Company nor the Subsidiary has any actual
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knowledge of: (a) any claim or offset by WorldxChange against
either the Company or the Subsidiary; nor (b) any defense by
WorldxChange to the enforcement of the WorldxChange Notes.
3.3 Subject to the terms of this Agreement, the Company hereby grants
and sells to the Participant, and the Participant hereby
purchases from the Company (without recourse to the Company or
the Subsidiary except to the extent expressly provided in Section
5 hereof) a ninety-nine percent (99%) undivided interest in the
WorldxChange Notes subject to the provisions of this Agreement
regarding allocation of costs and payment of fees (the
"Participant's Interest" or the "Participant's Pro Rata Share").
The Company's remaining one percent (1%) interest in the
WorldxChange Notes subject to the provisions of this Agreement
regarding allocation of costs and payment of fees shall be
referred to herein as the "Company's Interest" or the "Company's
Pro Rata Share."
3.4 Participant shall be the legal owner of the Participant's
Interest, and the holder of an equitable interest in the
WorldxChange Notes. This Agreement constitutes a sale of the
Participant's Interest and shall in no fashion be construed as a
loan from the Participant to the Company.
3.5 The Subsidiary agrees to be responsible, subject to the terms of
this Agreement, for taking reasonable action for the collection
of the WorldxChange Notes and the disbursement to the Participant
of the Participant's Interest in the proceeds of any and all such
collections. The Company or the Subsidiary shall establish and
maintain a separate account for all such proceeds and shall not
commingle such proceeds with its other funds. Both the Company
and the Trustee agree to cooperate with the Subsidiary in such
collection efforts including, without limitation, giving prompt
notice to the Subsidiary of any event or circumstance that might
affect such collection, giving appropriate notices to
WorldxChange upon request by the Subsidiary, and cooperating in
action under or in connection with the WorldxChange Loan
Documents.
3.6 Not less frequently than quarterly shortly following the 25th day
of each November, February, May, and August during the term of
this Agreement, the Subsidiary shall submit to the Participant a
written report that shall identify all payments made since the
Subsidiary's preceding report to the Participant regarding the
Worldxchange Notes, any costs incurred by the Company or the
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Subsidiary hereunder in that period, any fees owed to the Company
or the Subsidiary hereunder, the nature of any default under the
WorldxChange Notes, and any action being taken by the Company or
the Subsidiary in connection with any such default (each a
"Report"). If a Report reflects that sums are due from the
Company or the Subsidiary to the Participant, payment of such
sums shall accompany the Report. If a Report reflects that sums
are due from the Participant to the Company or the Subsidiary,
the Participant shall wire transfer to the Company or the
Subsidiary, as appropriate, the amount of such sums immediately
upon receipt of the Report.
3.7 The Subsidiary agrees to service the WorldxChange Notes, and
shall take or refrain from taking action with respect thereto as
the Subsidiary would normally do with respect to loans of a
comparable nature in which participation has not been granted.
The Subsidiary may deal with the WorldxChange Loan Documents as
an absolute owner thereof, except that the Subsidiary agrees not
to make any material amendment of the WorldxChange Loan Documents
or to take any material action regarding the WorldxChange Loan
Documents, including without limitation any of the following
amendments to any of the WorldxChange Loan Documents, without the
Participant's prior written consent: (a) reduction in the
interest rate or forgiveness of an interest on, or principal of,
any of the WorldxChange Notes; or (b) voluntary termination of
the security interest in any material portion of the collateral
granted under the Security Agreement or either of the Pledge
Agreements. If the Subsidiary requests the consent of the
Participant to any action in connection with any of the
WorldxChange Loan Documents, the Trustee shall respond in writing
either to: (a) grant such request; or (b) suggest a practical
alternative action. If the Subsidiary shall not receive such a
response from the Trustee within ten (10) business days after the
Subsidiary's request therefor, the Subsidiary shall have the
right, in its sole discretion, and without further notice to the
Participant, to take action regarding any modification, waiver,
or release of any of the terms of the WorldxChange Loan
Documents, or regarding the modification, waiver, or release of
any collateral or to regarding the substitution or exchange of
any collateral, to consent to any action or failure to act by an
entity liable on any portion of the WorldxChange Notes, and to
exercise or refrain from exercising any powers or rights under or
in respect of the WorldxChange Loan Documents or any collateral
therefor including, without limitation, the right to enforce or
refrain from enforcing the obligations of any entity liable for
the payment of the WorldxChange Notes or the performance of any
of the
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WorldxChange Loan Documents. Any person may deal with the Company
or the Subsidiary as if no participation interest in the
WorldxChange Notes had been granted.
3.8 The Company or the Subsidiary shall hold possession of and title
to all of the WorldxChange Loan Documents and related collateral
in its name. The Participant shall have the right to examine and
make copies of all original WorldxChange Loan Documents and of
the Company's or the Subsidiary's records with respect thereto at
any reasonable time during the Company's or the Subsidiary's
normal business hours, upon reasonable notice to the Company or
the Subsidiary, as appropriate.
3.9 Upon learning of the existence of any event or condition that
would constitute an Event of Default under any of the
WorldxChange Loan Documents, the Subsidiary shall take action, or
shall refrain from taking action, as it shall determine it its
good faith business judgment, subject to the terms of this
Agreement. If the Participant shall pay, in advance, all costs
associated therewith, the Company shall exercise its Limited
Purchase Option under Section 17 of the Intercreditor Agreement.
3.10 If, as a result of any Event of Default under any of the
WorldxChange Loan Documents, related collateral is acquired by
foreclosure sale or otherwise, title shall be taken in the
Subsidiary's name or in the name of an entity affiliated with the
Subsidiary or in the name of another nominee designated by the
Subsidiary, all in the sole discretion of the Subsidiary.
3.11 In the event of the failure to pay taxes, assessments, insurance
premiums, claims against any of the collateral, or any other
amount required to be paid by any entity obligation under any of
the WorldxChange Loan Documents, the Subsidiary may (but shall
not be obligated to) advance amounts necessary to pay the same,
and the Participant shall reimburse the Subsidiary for the
Participant's Pro Rata Share of the amount thereof immediately
upon demand therefor. The Participant shall also pay to the
Subsidiary, upon request by the Subsidiary, the Participant's Pro
Rata Share of all costs and expenses (including without
limitation court costs and attorneys'fees and expenses)
reasonably incurred by the Company or the Subsidiary in
connection with the enforcement of any of the WorldxChange Loan
Documents or the protection or preservation of any related
collateral or the protection of the Company's rights, including
without limitation any of the foregoing incurred in any
litigation with any entity obligated under any of the
WorldxChange Loan Documents or any shareholder, officer,
director, affiliate, receiver, or trustee thereof, or any other
creditor of such obligor,
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and including without limitation any of the foregoing incurred in
connection with any claim of invalidity, preferential transfer,
fraudulent conveyance, negligence, or lender liability. The
Participant shall also reimburse the Company or the Subsidiary,
immediately upon demand therefor, for the Participant's Pro Rata
Share of any amounts paid by the Company or the Subsidiary in
settlement or compromise of any claim or action referred to
generally or specifically in this Section.
3.12 Any and all costs reasonably incurred by the Company or the
Subsidiary hereunder or in connection with any of the
WorldxChange Loan Documents, including without limitation any
costs incurred under the immediately preceding Section hereof and
the costs of any collection actions, shall be borne by the
Company and by the Participant in accordance with their
respective Pro Rata Shares. The Subsidiary may reimburse such
costs from the Participant's Interest and, if the Participant's
Interest is not sufficient at any time to pay such costs, the
Participant agrees to reimburse the Company for the amount of
such unreimbursed costs promptly upon demand therefor. Proceeds
of the collection of any and all amounts under the WorldxChange
Loan Documents shall be applied in the following order: first, to
the fee referred to in Section 4 hereof; second, to costs
incurred hereunder or under the WorldxChange Loan Documents; and
third, to the Participant's Interest and the Company's Interest.
3.13 The Trustee acknowledges and agrees that: (a) any and all
collections on the WorldxChange Notes are subject to the
Subordination Agreement; (b) it will hold the Company and the
Subsidiary harmless for any collection action or omission
undertaken by the Company or the Subsidiary with regard to the
WorldxChange Notes at the request or with the consent of the
Trustee; (c) it will assert no claim or liability against the
Company or the Subsidiary for any collection action or omission
undertaken by the Company or the Subsidiary in good faith; and
(d) the Participation Interest is only an interest to participate
in receipts by the Company or the Subsidiary under the
WorldxChange Notes, to pay for costs incurred by the Company or
the Subsidiary hereunder, and to pay fees earned by the
Subsidiary hereunder, and the Trustee shall have no right to take
any direct action, and will not take any direct action, with
regard to any of the WorldxChange Loan Documents.
3.14 The sole responsibility of the Subsidiary shall be to administer
the WorldxChange Loan Documents with the same care that the
Subsidiary exercises on its own behalf, as though this Agreement
had not been executed. Neither the Company nor the Subsidiary
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shall be liable to the Participant or to any other person for any
error of judgment or for any action or failure to act, except
that each of the Company and the Subsidiary shall be severally
liable for its own bad faith or willful misconduct. Without
limiting the generality of the foregoing: (a) the Subsidiary may
consult with legal counsel (including without limitation counsel
for WorldxChange), independent public accountants, and other
experts selected by the Subsidiary and neither the Company nor
the Subsidiary shall not be liable for any action taken or
omitted in good faith by the Company or the Subsidiary in
accordance with the advice of such counsel, accountants, or
experts; (b) except as expressly set forth herein, neither the
Company nor the Subsidiary makes any warranty or representation,
express or implied, with respect toWorldxChange, its financial
condition, any collateral, or any similar matter, and neither the
Company nor the Subsidiary shall be responsible for any
statement, warranty, or representation made in, or in connection
with, the WorldxChange Loan Documents or for the financial
condition or business affairs of any entity obligated under any
of the WorldxChange Loan Documents, or for performance of any of
the WorldxChange Loan Documents, or for the existence or value of
any collateral; (c) neither the Company nor the Subsidiary shall
be responsible for the performance or observance of any term,
covenant, or condition in any of the WorldxChange Loan Documents
on the part of any entity other than the Company, and shall not
have any duty to inspect any collateral, property, or books and
records associated with any of the WorldxChange Loan Documents;
(d) neither the Company nor the Subsidiary makes any warranty or
representation as to, and shall not be responsible for, the due
execution, legality, validity, enforceability, genuineness,
sufficiency, or collectability of any of the WorldxChange Loan
Documents or any related collateral; and (e) neither the Company
nor the Subsidiary shall incur any liability under or in respect
of any of the WorldxChange Loan Documents or any collateral by
acting on any notice, consent, certificate, or other document,
instrument, or writing, believed by the Company or the Subsidiary
to be genuine or signed or sent by the proper person.
3.15 If either the Company, the Subsidiary, or the Participant
receives any payment or prepayment on the WorldxChange Notes in
excess of the portion of such payment to which the Company or the
Participant is entitled under this Agreement, whether such
amounts are paid or received or applied voluntarily,
involuntarily, or by operation of law, by application of offset
or otherwise, the Party receiving such excess payment shall make
such payment to the other Parties as shall result in the Company,
the Subsidiary, and the Participant receiving the amount that
each is entitled to receive
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under this Agreement; provided, however, that if thereafter any
such excess payment or any part thereof is returned by the Party
receiving it, the appropriate portion of such payment by the
receiving Party to the other Party shall be rescinded, so that
the Company, the Subsidiary, and the Participant each shall have
received the amount that each of them is entitled to receive
under this Agreement.
3.16 In the event that the Company or the Subsidiary is required, for
any reason, to repay to any person all or any portion of any
payment received by the Company or the Subsidiary and with
respect to which the Company or the Subsidiary made a payment to
the Participant, then the Participant shall immediately remit to
the Subsidary the Participant's Pro Rata Share of the payment
required to be repaid by the Company or the Subsidiary.
3.17 The Participant shall promptly disclose to the Company any
material information received or obtained by it that reflects
upon the financial condition of any entity obligated under any of
the WorldxChange Loan Documents (other than the Company), or that
reflects upon the ability of any such obligor to perform its
obligations under any of the WorldxChange Loan Documents.
3.18 Except for the obligations evidenced by the WorldxChange Loan
Documents, none the Company, the Subsidiary, or the Participant
has made any loans to, or has any financial interest in,
WorldxChange or any principal or affiliate thereof. Any such
loans made or interest acquired hereafter by the Company, the
Subsidiary, or the Participant shall be reported promptly in
writing to the other Parties.
4. Limited Guaranty Fee.
4.1 For a fee in connection with the Subsidiary's obligations under
this Agreement, the Participant agrees to pay to the Subsidiary
thirty-two percent (32%) of each interest payment made on account
of the WorldxChange Notes.
4.2 The Subsidiary may collect such fee by deducting the amount of
such fee from the Participant's Interest. The Participant agrees
to pay any unpaid fee to the Subsidiary promptly upon demand
therefor.
5. Limited Guaranty.
5.1 Subject to the limitations and conditions set forth below, the
Subsidiary makes the guaranty set forth in Section 5.2 hereof:
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5.1.1 The Participant hereby agrees that the Subsidiary may
make reasonable efforts to collect all amounts owing on
the WorldxChange Notes, including without limitation
that the Subsidiary may seek a judgment from a court of
competent jurisdiction that money is then due and owing
by WorldxChange under the WorldxChange Notes and
identifying the amount of such money (the "Judgment").
The costs of such collection efforts shall be
reimbursed to the Company or the Subsidiary as provided
herein.
5.1.2 There must not be in existence any material default by
the Participant under this Agreement.
5.1.3 The limited guaranty set forth in this Section 5 does
not cover amounts owed or paid by the Participant to
the Subsidiary pursuant to Section 4 hereof.
5.2 Provided that the limitations and conditions of Section 5.1
hereof have been met, the Subsidiary guarantees the payment to
the Participant of the Participant's Interest in the amount set
forth in the principal and interest due and owing under the
WorldxChange Notes, less any and all amounts paid, owing, or to
be owing under this Agreement, including without limitation
Section 4 hereof, and less any such amounts that are not then
payable as a result of any action or inaction by the Trustee.
6. Miscellaneous.
6.1 Costs and Expenses. Except as herein provided, each Party hereto
shall pay its or his own costs and expenses in connection with
this Agreement and the transactions contemplated hereby,
including without limitation the costs and expenses of its or his
attorneys, accountants, advisors, finders, brokers, and other
agents and representatives.
6.2 Notices. All notices which are required or permitted to be given
pursuant to the terms of this Agreement shall be in writing and
shall be sufficient in all respects if given in writing and
delivered personally or by telegraph or by registered or
certified mail, postage prepaid, as follows:
If to the Company:
Tel-Save.com, Inc.
6805 Route 202
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New Hope, PA 18938
Attention: General Counsel
With a copy to:
Arnold & Porter
777 S. Figueroa Street, Suite 4400
Los Angeles, California 90017-2513
Attention: Theodore G. Johnsen, Esq.
If to the Subsidiary:
Tel-Save, Inc.
6805 Route 202
New Hope, PA 18938
Attention: Aloysius T. Lawn, Esq.
With a copy to:
Arnold & Porter
777 S. Figueroa Street, Suite 4400
Los Angeles, California 90017-2513
Attention: Theodore G. Johnsen, Esq.
If to the Trustee:
Mark Pavol
One Cavalier Court
Ringoes, New Jersey
With a copy to:
Joseph Galda, Esq.
Buchanan Ingersoll, P.C.
11 Penn Center
14th Floor
1835 Market Street
Philadelphia, PA 19103
Notice shall be deemed to have been given upon receipt thereof as
to communications that are personally delivered or telegraphed
and five (5) days after deposit of the same in any United States
mail post office box in the state to which the notice is
addressed, or seven (7) days after deposit of same in any such
post office box other than in the state to which the notice is
addressed, postage prepaid, addressed as set forth above. Notice
shall not be deemed given under the preceding sentence unless and
until notice shall be given to all addressees above other than
the sender. The addresses
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and addressees for the purpose of this Section may be changed by
giving written notice of such change in the manner provided
herein for giving notice. Unless and until such written notice is
given, the addresses and addressees as stated by prior written
notice, or as provided herein if no written notice of change has
been given, shall be deemed to continue in effect for all
purposes hereunder.
6.3 Survival of Representations and Warranties. Notwithstanding any
investigation made by any party hereto, all representations and
warranties made herein shall survive the execution and delivery
of this Agreement.
6.4 Applicable Law. This Agreement and all documents executed and
delivered in connection herewith and the rights and obligations
of the parties hereto and thereto shall be governed by and
construed in accordance with the laws of the State of New York
other than and without giving effect to the laws of the State of
New York relating to choice of law.
6.5 Applicable Jurisdiction. The Parties hereby agree that any
action, at law or in equity, arising under this Agreement or any
of the other documents executed and delivered in connection
herewith, shall be filed in and only in the state courts of the
State of New York or a United States District Court in the State
of New York. The Parties hereby consent and submit to the in
personam jurisdiction of such courts for purposes of litigating
any such action.
6.6 Assignments. This Agreement, the Exhibits hereto, and the other
documents executed and delivered in connection herewith shall be
binding upon and inure to the benefit of the Parties hereto and
their respective personal and legal representatives, heirs,
successors, and assigns; provided, however, that no Party hereto
may assign or transfer its or his rights in and to this Agreement
or any other document executed and delivered in connection
herewith, without the prior written consent of the other Parties
hereto.
6.7 Entire Agreement. This Agreement and the Exhibits hereto and the
related documents being entered into in connection herewith
embody the complete agreement and understanding among the Parties
with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements, or representations
by or among the Parties, written or oral, which may have related
to the subject matter hereof in any way.
6.8 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective
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and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable
law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the
remainder of this Agreement.
6.9 Counterparts. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of
more than one Party, but all such counterparts taken together
will constitute one and the same Agreement.
6.10 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of
this Agreement.
6.11 Terminology. As used in this Agreement, the masculine, feminine,
or neuter gender, and the singular or plural number, shall be
deemed to include the others whenever the context so indicates or
requires.
6.12 Legal Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement or ----------
interpretation of this Agreement, or because of an alleged
dispute, default, misrepresentation, or breach in connection with
any of the provisions of this Agreement, the successful or
prevailing Party shall be entitled to recover reasonable
attorneys' fees, expenses, and other costs incurred in that
action or proceeding in addition to any other relief to which it
or he may be entitled. The right to such attorneys' fees,
expenses, and costs shall be deemed to have accrued upon the
commencement of such action and shall be enforceable whether or
not such action is prosecuted to judgment.
6.13 Broker's or Finder's Fees. Each of the Parties represents to each
of the others that it or he does not have any liability to any
broker or any representative, nor owe any fee or compensation to
any agent, finder, or broker, in connection with the subject
matter of this Agreement, and each of them hereby agrees to
indemnify and hold harmless the other Party against any
liability, damage, cost, or expense (including reasonable
attorneys' fees) incurred by reason of the breach of the
foregoing representation.
6.14 Advice of Counsel. Each Party has carefully reviewed this
Agreement, is familiar with the terms and conditions herein, and
was advised by legal counsel with respect thereto. Each Party
agrees that the terms and conditions set forth herein are fair
and not unconscionable.
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6.15 Relationship of the Parties. Nothing in this Agreement shall
create a partnership, joint venture, employment relationship, or
any other relationship between the Parties other than the
relationship of independent contractors.
6.16 Further Cooperation. Each Party covenants and agrees to prepare,
execute, acknowledge, file, record, publish, and deliver to the
other Party such other instruments, documents, and statements
including, without limitation, instruments and documents of
assignment, transfer, and conveyance, and take such other action
as may be reasonably necessary or convenient in the discretion of
the requesting Party to carry out more effectively the purposes
of this Agreement.
6.17 Modifications. This Agreement may not be altered, amended,
changed, waived, terminated, or modified in any manner unless the
same shall be in writing and signed by or on behalf of the Party
to be bound.
6.18 Offsets. No Party shall offset against any amount that such Party
is obligated to pay under this Agreement any amount owed or
alleged by such Party to be owed to it for any reason other than
this Agreement; a Party may offset against an amount it is
obligated to pay under this Agreement any amount owed or alleged
by such Party to be owed to it under this Agreement.
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6.19 Exhibits. Exhibits A-1 through A-3, Exhibit B., Exhibits C-1
through C-2, and Exhibit D are hereby incorporated herein by this
reference.
Tel-Save.com, Inc.
By
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Name
Title
The Subsidiary
By
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Name
Title
The Trustee
-----------------------------
Mark Pavol, as Trustee of the
D&K Grantor Retained Annuity
Trust dated June 15, 1998
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