Exhibit 10.63
AGREEMENT PENDING PURCHASE CONFIRMATION
This AGREEMENT PENDING PURCHASE CONFIRMATION ("Agreement"), dated as of
August 31, 2001 ("Execution Date"), is made and entered into by and among Aquis
Wireless Communications, Inc. ("Aquis") and Alert Communications, L.L.C.
("Alert"). Aquis and Alert are sometime referred to herein as a "Party" or the
"Parties".
RECITALS
WHEREAS, Aquis currently operates Commercial Mobile Radio Service
("CMRS") one-way paging systems ("Systems") on multiple frequencies in numerous
geographic areas throughout the United States pursuant to licenses ("Licenses")
issued to Aquis by the Federal Communications Commission ("FCC").
WHEREAS, one of these Systems is a one-way paging system ("Midwest
System") operating pursuant to licenses ("Midwest Licenses") issued by the FCC
in the Paging and Radiotelephone Service on the frequency 931.1875 MHz in the
Midwest United States.
WHEREAS, Aquis and Alert have executed an asset purchase agreement
("Purchase Agreement") pursuant to which Alert will purchase the Midwest System,
including the Midwest Licenses, the subscribers to Aquis services in the Midwest
System ("Midwest Subscribers") and substantially all assets used in the
operation of the Midwest System (collectively the "Midwest Business").
WHEREAS, the Purchase Agreement requires (or will require) that the
Parties obtain requisite prior FCC consent to assignment of the Midwest Licenses
from Aquis to Alert pursuant to applications (collectively "Assignment
Application") that must be filed with, processed and granted by the FCC (and the
requisite period thereafter shall have expired pursuant to which any party shall
be able to contest the granting the FCC approval, such that the approval is
considered final ("Final FCC Approval")) before the Parties can consummate sale
of the assets and de jure assignment of the Midwest Licenses to Alert at a
closing ("Purchase Consummation") to be conducted by the Parties pursuant to the
Purchase Agreement.
WHEREAS, it is in both parties best interests that Alert steps in and
assume day-to-day operational and management control of the Midwest System and
related responsibilities pursuant to this Agreement until Purchase Consummation.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, mutually agree as follows.
1.1 Assumption of Midwest Business At 12:01 AM on September __, 2001
("Management Date") (which shall be the Closing Date as referred to in
the Purchase Agreement) Alert will begin the management of the Midwest
System, pursuant to the terms of this Agreement, and assume full
day-to-day operational and management responsibilities for operation of
the Midwest System, excluding the maintenance of the Midwest Licenses
as described in Section 1.2.
1.1.1. Use of Midwest Business Assets. On the Management Date, Aquis
will transfer to Alert Aquis' rights to use, have access to
and control over certain assets described in the Purchase
Agreement which are the assets utilized by Aquis in the
operation of the Midwest Business (the "Assets to be Acquired"
as defined in the Purchase Agreement), excluding the FCC
Licenses.
1.1.2. On the Management Date, Alert has informed Aquis that it will
hire the Aquis employees specified on Schedule 1.1.5 hereto
("Retained Employees").
1.1.3. On the Management Date, all accounts receivable held or owned
by Aquis for Subscribers, including all rights to receive
compensation from "calling party pays" agreements, from
operation of the Midwest Business (the "Accounts Receivable"
as defined in the Purchase Agreement), will be turned over to
Alert as manager for administration and collection. The
Accounts Receivable transferred on the Management Date will be
specified on a schedule agreed to by the Parties and will be
valued with the following discount factors as follows so that
the total value thereof shall be at least $100,000, which has
been committed to by Aquis:
(a) 100% of the face amount of Accounts Receivable
outstanding for 30 days or less before the Management
Date;
(b) 70% of the face amount of Accounts Receivable
outstanding for between 31 and 60 days before the
Management Date;
(c) 40% of the face amount of Accounts Receivable
outstanding for between 61 and 90 days before the
Management Date;
(d) 0% of the face amount of Accounts Receivable
outstanding for more than 90 days before the
Management Date; and
(e) 100% of the net amount of those certain Accounts
Receivable owed by Ameritech and related to "calling
party pays" service.
1.2. Maintenance of the Midwest Licenses. Until Purchase Consummation Aquis
will retain control of, and responsibility for, the maintenance of the
Midwest Licenses, To that end Aquis will retain access and control over
the assets utilized in such maintenance until Purchase Consummation
including, but not limited to, the following:
1.2.1. All transmission equipment utilized in the operation of the
Midwest System,
1.2.2. The paging terminals and all associated hardware and software
utilized at the Midwest System to provide service to
Subscribers.
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1.2.3. The satellite control facilities utilized in the Midwest
System, including but not limited to any earth station
facilities, satellite space, associated wireline or wireless
transmission facilities, hardware and software, whether owned
by Aquis or utilized by Aquis pursuant to existing agreements
with third parties.
1.2.4. All site leases, licenses or other agreements ("Site
Agreements") pursuant to which Aquis operates transmission
equipment at each of the transmitter sites and it being
Alert's understanding that Aquis does not currently own the
actual sites or supporting structures at any of the
transmitter sites.
1.2.5 All rights to interconnection with the public switched
telephone network ("PSTN") utilized by Aquis in the operation
of the Midwest System whether pursuant to agreement, tariff or
otherwise.
1.2.6. Those Aquis employees specified on Schedule 1.2.6 hereto
("Engineering Employees").
1.3. No Assumption Of Liability By Alert. It is expressly understood and
agreed that the Parties intend that Alert is not and will not be
considered to be a successor to Aquis by reason of any theory of law or
equity and Alert is not assuming any liabilities or obligations of
Aquis, except as specifically agreed to in writing in the Purchase
Agreement.
1.4. Title To Midwest Business Assets. Subject to Alert's right to use, have
access to and control over the Midwest Business Assets pursuant to
Section 1.1. hereof, title to the Midwest Business Assets will remain
with Aquis during the Term of this Agreement (as hereinafter defined).
Title will pass to Alert at Purchase Consummation pursuant to the
Purchase Agreement; subject, however, to the provisions of Section 4
hereof.
1.5. Good Faith Cooperation. Aquis agrees to cooperate in good faith, use
its best efforts and timely take (or omit to take) any additional
action that Alert reasonably believes is necessary to: (i) effectuate
the de facto transfer of control of the Midwest System and allow Alert
to assume day-to-day operational and management control of the Midwest
System; (ii) allow Alert to carry out any other related
responsibilities with respect to the Midwest Business specified in this
Agreement; and (iii) keep all leases for property and transmitters
timely paid in full.
2. Operation of the Midwest Business
2.1. Alert Responsibilities. On the Management Date, Alert will
assume day-to-day operational and management control of the
Midwest Business using the Midwest Business Assets. Alert will
use its reasonable best efforts consistent with sound
commercial practice to provide for the successful operation of
the Midwest Business and Alert will render or obtain all
services and perform or cause to be performed all duties
necessary or appropriate for the operation of the Midwest
Business. Alert's duties will include the following:
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2.1.1. Provide service to existing and new Subscribers pursuant to
subscriber agreements.
2.1.2. Supervise, manage and train the Retained Employees for the
operation of the Midwest Business.
2.1.3. Administer the invoicing and collection of all accounts of
Subscribers, including new subscribers to the Midwest System,
and Accounts Receivable; collect and receive all payments on
such accounts; and arrange for the billing and collection of
all other revenues, fees, charges or other compensation
("Revenue") due in connection with the Midwest Business.
2.1.4. Arrange for the payment of all expenses and fees, if any,
incurred in connection with the Midwest Business after the
Management Date during the Term of this Agreement (as
hereinafter defined) ("Expenses").
2.1.4.1. The Parties agree that Expenses will be prorated as
of the Management Date with Aquis retaining sole
responsibility for payment of Expenses prior to the
Management Date and Alert assuming responsibility for
payment of Expenses after the Management Date in
accordance with this Agreement and subject to Section
2.3 hereof.
2.1.5. Maintain the Customer List and files concerning
subscriber agreements for all Subscribers; and
2.1.6. Maintain appropriate office recordkeeping,
bookkeeping and accounting procedures.
2.1.6.1. The Parties agree that Alert will not enter
into any contracts or other agreements
during the Term of this Agreement (as
hereinafter defined) that would result in an
obligation to pay expenses and fees in
connection with the Midwest Business beyond
the Purchase Termination Date (as
hereinafter defined); provided, however,
that Alert may enter into such contracts and
agreements upon the prior written consent of
Aquis, such consent in Aquis' sole,
reasonable discretion. The Parties agree
that in no event will Alert have any
liability whatsoever to pay any Expenses
incurred after the Purchase Termination Date
(as hereinafter defined).
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2.2. Aquis Obligations.
As the FCC licensee of the Midwest Stations pending Purchase
Consummation, Aquis will continue the supervision and
maintenance of the Midwest Licenses, Aquis's duties will
include the following:
2.2.1. Operate and maintain the Midwest System for provision
of service to existing and new Midwest Subscribers in
compliance with the Midwest Licenses and applicable
FCC Rules (as hereinafter defined).
2.2.2 Maintain appropriate property, casualty, liability
and other insurance for the Midwest System, which
will name Alert as an additional insured during the
term of this Agreement.
2.2,3. Supervise, manage and train the Engineering
Employees.
2.2.4. Pay rental under the Site Agreements, on a timely
basis, on all leases involving the Midwest Business.
2.2.5. Pay for telephony related to the Midwest System,
2.2.6. Aquis will cooperate with Alert and use its best
efforts to assist Alert in the operation on the
Midwest Business as specified herein.
2.3. Additional Obligations.
2.3.1. In addition to its other obligations under this
Agreement:
2.3.1.1. In the event Alert is unable to pay all
Expenses from Revenue, then Alert will
provide funds to pay such Expenses,
2.3.1.2. Aquis will pay for the direct costs related to its
obligations under Section 2.2 including, but not
limited to, salaries, benefits, payroll taxes, site
rental, and telephony, lease expenses and third party
maintenance fees. Alert shall have the ability, given
that it is to reimburse Aquis for such expenses, to
approve and have reasonable veto power over expenses
to be incurred by Aquis on behalf of the Midwest
Business to the extent Aquis will request Alert to
reimburse Aquis. On the last day of each month Aquis
will remit an invoice to Alert, in reasonable detail,
for such amounts paid in the maintenance of the
Midwest System and Midwest Licenses and Alert will
promptly reimburse Aquis for the same. Alert will not
be responsible for, nor will it be invoiced for, any
overhead expenses of Aquis related to the operation
of the Midwest System or for any Fees to Aquis
related to the operation of the Midwest System.
2.3.1.3. If Aquis receives any payments, after the Management
Date, of amounts due on Accounts Receivable for which
Alert is responsible for administering collections
hereunder, Aquis will promptly remit such amounts to
Alert.
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2.4. Aquis Inspection. During the Term of this Agreement
(as hereinafter defined), Aquis may, upon reasonable
prior written request to Alert and at a reasonable
time and place, inspect Alert's operation of the
Midwest Business and/or the records maintained by
Alert in connection with the operation of the Midwest
Business.
3. Compensation. In addition to other consideration provided for
in this Agreement and the Purchase Agreement, Alert will
retain as compensation for services provided all "Midwest Cash
Flow," if any, obtained from operation of the Midwest Business
during the Term of this Agreement (as hereinafter defined).
Midwest Cash Flow is defined as Revenues plus Accounts
Receivable collected during the Term of this Agreement (as
hereinafter defined).
4. If No Purchase Consummation. In the event that the Purchase
Agreement terminates without Purchase Consummation, the
following provisions apply:
4.1. Return Of Midwest Business Assets. As of the date of
termination of the Purchase Agreement without
Purchase Consummation ("Purchase Termination Date"),
Alert will return to Aquis the rights to use, have
access to and control over all Midwest Business
Assets in existence as of the Purchase Termination
Date, normal wear and tear excepted, and Aquis will
retain title thereto.
4.2. Termination of Alert Operation of Midwest Business.
As of the Purchase Termination Date, Alert will cease
operating the Midwest Business pursuant to Section
2.1 hereof and the Retained Employees will be free to
resume their employment with Aquis.
4.3. Condition Of Assets. The Parties expressly recognize
and agree that the Midwest System may have been
modified or transferred during the ordinary course of
operation of the Midwest Business Assets
(collectively, "Asset Change") during Alert's use
thereof in accordance with this Agreement. Alert will
have no liability of any nature whatsoever for any
Asset Change unless and to the extent such Asset
Change was caused by a breach of Alert's duty of care
as set forth in Section 2.1 hereof.
4.4. Returned Receivables Amount. Within thirty (30)
Business Days after the Purchase Termination Date
Alert will remit any then outstanding accounts
receivable of the Midwest Business,
5. Representations and Warranties of Aquis. To induce Alert to
enter into this Agreement, Aquis hereby represents and
warrants to Alert that:
5.1. Licenses. Aquis is the bona fide licensee of the
Midwest Licenses and Midwest System. The Midwest
Licenses for the Midwest Transmitter Sites are to the
best of Aquis' actual knowledge valid, in good
standing, in full force and effect and constitute:
(i) all licenses, permits, and authorizations
required by the Communications Act of 1934, as
amended (the "Act") and all rules and regulations
promulgated by the FCC thereunder ("FCC Rules"), for
the construction and operation of the Midwest System;
and (ii) all of the licenses, permits and
authorizations issued by the FCC to Aquis for or in
connection with the Midwest System. Except for the
Midwest Licenses, there are no permits, licenses or
other authorizations currently held by Aquis, or
required by law to be held by Aquis, with respect to
ownership of the Assets to be Acquired or operation
of the Midwest Business, except where failure to hold
such a permit, license or other authorization would
not reasonably be expected to materially affect
ownership of the Assets to be Acquired or conduct of
the Midwest Business.
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5.2. Midwest System Operation. The Midwest System
comprised of the Midwest Transmitter Sites to the
best of Aquis' actual knowledge has operated and
currently is operating in compliance with all
applicable laws, rules and regulations, including the
Act and FCC Rules. The Midwest Systems currently
provides one-way paging service in compliance with
the Act and the FCC Rules and the Midwest Transmitter
Sites are being operated by Aquis in compliance with
the Act and the FCC Rules.
5.2. No Adverse Condition. Aquis has no knowledge of any
condition imposed by the FCC on the Midwest System or
Midwest Licenses which is neither: (i) set forth on
the face of the Midwest Licenses as provided by Aquis
to Alert or as available to the public on FCC
databases; nor (ii) applicable to the CMRS industry
generally.
5.3. No Pending Action. There is no pending or, to Aquis'
knowledge, threatened action by the FCC or any other
federal, state or local governmental authority or
third party: (i) to suspend, revoke, terminate or
challenge the Midwest System, any Midwest License or
the Midwest Business; or (ii) that could preclude
Aquis from entering into or consummating the
transactions specified in this Agreement and the
Purchase Agreement.
5.4. Exclusive Use. The Midwest Licenses grant Aquis the
exclusive use of the frequency 931.1875 MHz within
the service area defined in FCC Rules. Aquis is not a
party to any intercarrier, frequency or facilities
sharing agreement of any kind that might in any way
affect Alert's rights to operate (under this
Agreement) or acquire (under the Purchase Agreement)
the Midwest System and/or the Assets to be Acquired.
5.5. Orders And Decrees. None of Aquis, the Midwest
System, the Midwest Licenses, nor the Midwest
Business are subject to any judicial or
administrative order, or any ordinance or zoning
restriction, which would materially and adversely
affect or impose any condition on Aquis, the Midwest
System, the Midwest Licenses or the Midwest Business.
5.6. Litigation. There is no judicial or administrative
action, suit or proceeding, pending or, to Aquis'
knowledge, threatened against or relating to Aquis,
the Midwest System, the Midwest Licenses or the
Midwest Business before the FCC or any federal, state
or local court, arbitration tribunal or governmental
authority which could, individually or in the
aggregate: (i) result in the voluntary or involuntary
transfer of any of the Midwest System or the Midwest
Licenses; or (ii) adversely affect any or all of
Aquis, the Midwest System, the Midwest Licenses or
the Midwest Business or the transactions contemplated
in this Agreement or the Purchase Agreement. Aquis
knows of no facts establishing a reasonable basis for
any such action, suit, proceeding or any governmental
investigation relating to the same.
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5.7. Compliance With Laws. Aquis is in compliance, in all
material respects, with all applicable laws,
regulations and administrative orders of: (i) the
United States, including, without limitation, the
FCC: (ii) any state; and (iii) any municipality,
county, or other subdivision of any of the foregoing,
to which Aquis, the Midwest System, the Midwest
Licenses or the Midwest may be subject.
5.8. Taxes And Required Filings. With respect to the
Midwest System, the Midwest Licenses and the Midwest
Business, Aquis has filed all federal, state, local,
foreign and other tax returns and reports of every
nature required to be filed and has paid or will pay
all taxes and other assessments due including, but
not limited to, any pursuant to FCC-mandated
requirements.
5.9. Third Party And Governmental Consents. No approval,
consent, waiver, order or authorization of, or
registration, qualification, declaration, or filing
with, or notice to, any federal, state or local
governmental authority or other third part is
required on the part of Aquis in connection with the
execution or performance of this Agreement.
5.10. Representation and Warranties in the Purchase
Agreement. Aquis restates herein the representations
and warranties made to Alert in the Purchase
Agreement as if set forth in full herein, except to
the extent already set forth herein in Sections 5 or
7 of this Agreement. Each of the representations and
warranties of Aquis herein, and those representations
and warranties made by Aquis in the Purchase
Agreement, are made in this Agreement as of the
Execution Date and again as of the Management Date.
6. Representations Of Alert. As of the Execution Date, Alert
knows of no material statement or omission of Aquis that gives
rise to any: (i) material breach of its representations,
warranties, or covenants under this Agreement or in connection
with the purchase transaction; or (ii) basis on which the FCC
would not issue its consent to assignment of the Midwest
Licenses to Alert.
7. Representations And Warrants Of The Parties. Each Party
represents to each other Party as appropriate that: (i) it is
a legal organization, duly organized and validly existing
under the laws of the state of its organization; (ii) it has
all necessary power, authority and capacity to enter into and
perform the terms of this Agreement: (iii) this Agreement has
been authorized by all necessary action; (iv) this Agreement
has been duly executed by it and constitutes a valid and
binding agreement enforceable in accordance with its terms;
and (v) the execution, delivery and performance of this
Agreement does not conflict with the Party's organizational
documents or any indenture, mortgage, deed of trust, agreement
or other instrument by which the Party is bound, and does not
violate any law or regulation, or order or decree of any court
applicable to the Party.
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8. FCC Compliance. The Parties agree to comply with all
applicable FCC Rules governing the Midwest Licenses and
operation of the Midwest System and specifically agree as
follows:
8.1. Alert may not represent itself as the de jure
licensee of the Midwest System.
8.2. No Party will represent itself as the legal
representative of any other Party before the FCC, but
each Party will cooperate with the other Parties with
respect to matters concerning implementation of this
Agreement, the Midwest Licenses and the Midwest
System.
8.3. In addition to all other obligations imposed on Aquis
pursuant to this Agreement, Aquis will take all
actions necessary to keep the Midwest Licenses valid
and in full force and effect and Aquis will use its
best efforts to submit to the FCC or any other
governmental authority all reports, applications,
renewals, filings or other documents necessary to
keep the Midwest Licenses valid and in full force
and effect during the Term of this Agreement.
8.4. Aquis and Alert are familiar with a de jure
licensee's responsibilities under the Act and FCC
Rules. Nothing in this Agreement is intended to
diminish or restrict Aquis' remaining obligations as
de jure licensee of the Midwest System. All Parties
desire that this Agreement be carried out in
compliance with FCC Rules. In the event that the FCC
determines that any provision of this Agreement
violates any FCC Rule, regulation or policy, the
parties will make good faith efforts immediately to
correct the problem to bring this Agreement into
compliance consistent with the intent of the Parties.
9. Aquis Covenants. In view of the fact that Alert anticipates
committing substantial resources to meeting its obligations
pursuant to this Agreement and must rely on the maintenance of
the Midwest Licenses and Midwest System to carry out its
responsibilities hereunder, Aquis covenants and agrees that
it:
9.1. Aquis will not permit any liens or encumbrances to
attach to the Midwest Licenses, the Midwest System or
the Midwest Business and, if any such liens and
encumbrances arise, Aquis will immediately cure and
remove all such liens and encumbrances to the extent
possible;
9.2. Will not take any action that would jeopardize any of
the Midwest Licenses, the Midwest System, any leases
of the Midwest Business, the Midwest Business itself
or the rights of Alert under this Agreement or the
Purchase Agreement;
9.3. Will immediately notify Alert of any pending or
threatened action by the FCC or any other
governmental agency, court or third party to suspend,
revoke, terminate or challenge the Midwest Licenses,
the Midwest System or the Midwest Business or to
investigate the operation thereof; and
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9.4. Will not interfere with Alert's exercise or
performance of its rights and obligations pursuant to
this Agreement.
10. Indemnification.
10.1. Indemnification By Aquis. Aquis will defend,
indemnify and hold Alert, any subsidiary or affiliate
thereof, and its respective successors, officers,
directors and controlling persons (the "Indemnified
Alert Group") harmless from and against any and all
losses, liabilities, damages, costs or expenses
(including reasonable attorney's fees, penalties and
interest) payable to or for the benefit of, or
asserted by, any party resulting from, arising out
of, or incurred as a result of: (i) the breach of
any representation made by Aquis herein or in
accordance herewith; (ii) the breach of any warranty
or covenant made by Aquis herein or in accordance
herewith; (iii) any claim, whether made before or
after the Management Date, or any litigation,
proceeding or governmental investigation, whether
commenced before or after the Management Date,
arising out of the business of operating the Systems
prior to the Management Date, or otherwise arising
out of any act or occurrence prior to, or any state
of facts existing as of the Management Date
(regardless of whether or not disclosed or known to
Alert as of the Management Date) arising from any act
or omission of Aquis; or (iv) Aquis failure to pay,
perform or discharge any of its obligations,
liabilities, agreements or commitments under this
Agreement or under the Purchase Agreement.
10.2. Indemnification By Alert. Alert will defend,
indemnity and hold Aquis, and its respective
successors, officers, directors and controlling
persons (the "Indemnified Aquis Group") harmless from
and against all losses, liabilities, damages, costs
or expenses (including reasonable attorney's fees,
penalties and interest) payable to or for the benefit
of, or asserted by, any party resulting from, arising
out of, or incurred as a result of: (i) the breach of
any representation made by Alert herein or in
accordance herewith; (ii) the breach of any warranty
or covenant made by Alert herein or in accordance
herewith; (iii) any claim or any litigation,
proceeding or governmental investigation arising out
of Alert's operation of the Midwest Business after
the Management Date; or (iv) Alert's failure to pay,
perform or discharge any of its obligations,
liabilities, agreements or commitments under this
Agreement.
10.3. Surviva1 Of Covenants and Warranties. This Section 10
of this Agreement will survive the termination of
this Agreement, and will be fully enforceable at law
or in equity against such other Party and its
successors and assigns for claims first made during
the term of this Agreement or within a period of one
(1) year after the termination of this Agreement. Any
investigation at any time made by or on behalf of (or
any disclosure to) any Party will not diminish in any
respect whatsoever its right to rely on the
representations and warranties of any other Party.
10.4. Notice Of Claims
10.4.1. Each Party will give prompt written notice
to any other Party of any claim against the
Party giving notice which might give rise to
a claim by it against the other Party based
upon the indemnity provisions contained
herein, stating the nature and basis of the
claim and the actual or estimated amount
thereof;
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10.4.2. Failure to give notice under Section 10.4.1
hereof will not affect the obligation of the
indemnifying Party to provide
indemnification in accordance with the
provisions of this Section 10 unless, and
only to the extent that, such indemnifying
Party is actually prejudiced thereby.
10.4.3. In the event that any action, suit or
proceeding is brought against any member of
the Indemnified Aquis Group or the
Indemnified Alert Group with respect to
which any Party may have liability under the
indemnification provisions contained herein,
the indemnifying Party will have the right,
at its sole cost and expense, to defend such
action in the name of or on behalf of the
indemnified Party.
10.4.4. In connection with such action, suit or
proceeding which might give rise to a claim
by one Party against another Party based on
the indemnity provisions in this Section 10,
the Parties will render to each other such
assistance as may reasonably be required in
order to ensure the proper and adequate
defense of any such action, suit or
proceeding.
10.4.5. An indemnified Party will have the right to
retain its own counsel, with the fees and
expenses to be paid by the indemnifying
Party, if representation of such indemnified
Party by the counsel retained by the
indemnifying Party would be inappropriate
because of actual or potential differing
interests between such indemnified Party and
any other Party represented by such counsel.
10.4.6. No Party will make any settlement of any
claim which might give rise to liability of
another Party under the indemnification
provisions contained herein without the
written consent of such other Party, which
consent such other Party covenants will not
be unreasonably withheld.
10.5 Right of Set-Off. The Parties shall have a right of
set-off under this Agreement and under the Escrow
Agreement referred to in the Purchase Agreement for
any breach of representation, warranty or covenant of
the other Party in this Agreement or in the Purchase
Agreement.
11. Term And Termination
11.1. Term. The "Term" of this Agreement will commence on
the Management Date and end on the Termination Date
as defined in Section 11.2 hereof.
11.2. Termination. This Agreement will automatically
terminate ("Termination Date") upon which any of the
following events occurs:
11.2.1. Purchase Consummation, in the event that
Purchase Consummation occurs pursuant to the
Purchase Agreement;
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11.2.2. Termination of the Purchase Agreement on the
Purchase Termination Date in the event that
Purchase Consummation does not occur
pursuant to the Purchase Agreement;
11.2.3. The loss, revocation or expiration without
renewal of Midwest Licenses;
11.2.4. Otherwise, as mutually agreed by the Parties
in writing.
12. Notices. All notices or other communications which may be
given or made pursuant hereto will be in writing and delivered
by hand delivery, courier or facsimile transmission to the
following:
If to Alert, to: with a copy to:
Alert Communications, L.L.C. Xxxxx Xxxxxx & McCabill, Ltd.
000 Xxxxx Xxxxxxx Xx., Xxxxx 000 000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Kboshbin Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000 Facsimile: 312-946-9818
If to Aquis, to: With a copy to:
Aquis Wireless Communications, Inc. Xxxxxxx Xxxx LLP
0000X Xxxxx 00, Xxxxx 000 Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, President Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Each Party may designate by notice in writing a new address
for it and/or its attorney to which any notice or
communication may thereafter be given. Each notice or
communications will be deemed sufficiently given and received
for all purposes at such time as it is delivered to the
addressee or at such time as delivery is refused by the
addressee upon presentation.
13, Amendment. This Agreement may not be amended, modified or
changed except in writing signed by all Parties hereto.
14. Successors And Assigns. Alert may assign its rights and
delegate its duties under this Agreement with the consent of
Aquis, which consent may not be unreasonably withheld or
delayed; provided, however, that Alert may assign this
Agreement to an affiliate or subsidiary of Alert without
Aquis' prior consent and solely upon notice to Aquis that the
Alert affiliate or subsidiary agrees to be bound by the terms
of this Agreement and thereupon Alert will have no further
obligations hereunder. Aquis may not assign its rights or
delegate its duties under this Agreement without the prior
consent of Alert, which consent may be denied in Alert's sole
and unfettered discretion. This Agreement will be binding upon
and inure to the benefit of the Parties hereto, and their
respective heirs, representatives, successors and permitted
assigns.
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15. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Illinois
without giving effect to its principles of conflict of laws.
16. Severability. In the event that any provision of this
Agreement is held to be invalid, void, or illegal by the FCC,
any governmental authority or court of competent jurisdiction,
the remaining provisions of this Agreement will remain in full
force and effect and this Agreement will be construed
reasonably to preserve the original intent of the Parties
hereto insofar as practical.
17. Interpretation. This Agreement is to be construed fairly and
simply and not strictly for or against any of the Parties
hereto. The section headings contained herein are for
convenience of reference only, are not part of this
Agreement, and will not affect the meaning or interpretation
of any provision hereof.
18. Entire Agreement. This Agreement and the Purchase Agreement
constitute the entire agreement between the Parties with
respect to the transactions contemplated hereby, and supersede
all prior oral or written agreements, commitments or
understandings with respect to the matters provided for
herein, except as may otherwise be specified in this Agreement
and/or the Purchase Agreement.
19. Business Days. "Business Days" for the purposes of this
Agreement will be considered days on which federally-chartered
banks in Illinois are open to the public for transaction of
business.
20. Counterparts. This Agreement may be executed in as many
counterparts as may be required, and all counterparts will
collectively constitute a single agreement
IN WITNESS WHEREOF, the Parties have duly executed and
delivered this Agreement as of the Execution Date first written above.
AQUIS WIRELESS COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: President and CEO
-----------------------------
ALERT COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: CEO
-----------------------------
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