Exhibit 10.64
ESCROW AGREEMENT
ESCROW AGREEMENT ("Agreement") dated as of September 7, 2001, by and
among Aquis Wireless Communications, Inc. ("Aquis") and Alert Communications,
L.L.C. ("Alert") and Xxxxxx Bank Barrington, N.A., as Escrow Trustee ("Escrow
Trustee").
Preliminary Statement
Aquis and Alert have entered into a Asset Purchase Agreement dated as
of August 31, 2001 ("Purchase Agreement"), pursuant to which, among other
things, Aquis will be selling and transferring to Alert certain assets as
described in the Purchase Agreement. Aquis and Alert are also entering into an
Agreement Pending Purchase Consummation dated August 31, 2001 (the "Management
Agreement") pursuant to which Alert will be managing certain activities
involving the assets to be acquired by Alert from Aquis, pending receipt of
final approval of the transfer of certain FCC licenses from Aquis to Alert, as
described in the Purchase Agreement and the Management Agreement. Alert is to
make a downpayment of $50,000 ("Downpayment") on the purchase price of the
assets under the Purchase Agreement as of the date thereof and is to make a
further payment of $1,050,000 - subject to any closing adjustments pursuant to
the Purchase Agreement - ("Purchase Agreement") when and if required pursuant to
the terms of the Purchase Agreement. The Downpayment and the Remaining Payment
are sometimes referred herein to as the "Payments".
The Escrow Trustee Agrees to hold the Payments received by it in escrow
upon the following terms and conditions:
Agreement
1. Alert shall deposit the Downpayment with the Escrow Trustee
simultaneous with or not later than two (2) business days after the date of
this Agreement. In the event of a Closing of the sale between Aquis and Alert
pursuant to the Purchase Agreement, Alert shall deposit the Remaining Payment
with the Escrow Trustee simultaneous with the Closing as defined in the Purchase
Agreement
2. The Escrow Trustee will invest the Payments, when received, in such
interest-bearing investments as the Escrow Trustee reasonably believes are
advisable, or in investments in which Aquis and Alert both notify the Escrow
Trustee to invest.
3. The Payment shall be delivered by the Escrow Trustee in accordance
with this Escrow Agreement only upon the receipt of a notice from both Aquis and
Alert providing an instruction to deliver the Payments, or in obedience to the
court order described below, or upon the notice of Alert alone in the event of
an event described in Section 7, below.
4. Upon written notification to the Escrow Trustee by Alert and Aquis
that there will not be a Closing under the Purchase Agreement, the Escrow
Trustee will return the Downpayment to Alert, subject to the provisions of
Section 8 below.
5. Upon written notification to the Escrow Trustee by Alert and Aquis
that, following the Closing under the Purchase Agreement, there has been final
approval by the FCC of the transfer of the FCC Licenses as required under the
Purchase Agreement, the Escrow Trustee will remit the Payments to Aquis, subject
to the provisions of Section 8 below.
6. Upon written notification to the Escrow Trustee by Alert and Aquis
that, following the Closing under the Purchase Agreement, there has not been and
will not be final approval by the FCC of the transfer of the FCC Licenses as
required under the Purchase Agreement, the Trustee will remit the Payments to
Alert, subject to the provisions of Section 8 below.
7. In the event of any bankruptcy, insolvency or similar action
involving Aquis which results in a termination of the Asset Purchase Agreement
prior to the date the Payments are distributed, then upon written notification
to the Escrow Trustee by Alert of such event that the Asset Purchase Agreement
has been terminated, submitted together with proof of the bankruptcy (or
similar) filing involving Aquis and the termination of the Asset Purchase
Agreement, the Escrow Trustee will remit all Payments in its possession to
Alert.
8. In connection with the written notifications by Aquis and Alert
under Sections 4, 5 or 6 above, if either Aquis or Alert believes it is
entitled to any setoff or indemnification under either the Purchase Agreement or
the Management Agreement, the notice shall set forth such amount and the Escrow
Trustee will retain such disputed amount, together with an additional 10%
thereof for possible expenses, and shall remit the remainder to the party in
accordance with the applicable exception. If Aquis and Alert agree upon the
setoff or indemnification, the written notification shall so state and the
Escrow Trustee will pay the party entitled thereto in accordance with the
written notification. If the parties do not agree, they will settle the disputed
amount between themselves in accordance with the Purchase Agreement and/or the
Management Agreement and will notify the Escrow Trustee at such time as the
dispute is settled, and the Escrow Trustee will distribute the remaining
Payments in accordance with the mutual instructions at that time, and the
interest earned thereon will be distributed pro-rata along with the distribution
of the Payments.
9. The obligations and duties of the Escrow Trustee are confined to
those specifically enumerated in this Escrow Agreement. The Escrow Trustee shall
not be subject to, nor be under any obligation to ascertain or construe the
terms and conditions of any other instrument, including but not limited to the
Purchase Agreement and the Management Agreement, whether or not now or
hereafter deposited with or delivered to the Escrow Trustee or referred to in
this Escrow Agreement, nor shall the Escrow Trustee he obliged to inquire as to
the form, execution, sufficiency, or validity of any such instrument nor to
inquire as to the identity, authority, or rights of the person or persons
executing or delivering the same.
10. If the Escrow Trustee should receive or become aware of any court
order with respect to conflicting demands or claims with respect to the rights
of any of the parties hereto, or with respect to, or instruments deposited
herein or affected hereby, the Escrow Trustee shall have the right in its, sole
discretion, without liability for interest or damages, to discontinue any or all
further acts on its part until such conflict reflected in such court order is
resolved to its satisfaction and/or to commence or defend any action or
proceeding for the determination of such conflict.
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11. In the event that the Escrow Trustee does not receive, for any
reason, the notice from Aquis and Alert as required above, then the Escrow
Trustee shall not deliver or surrender the Payments, in whole or in part. The
undersigned hereby authorize and direct the Escrow Trustee to disregard any and
all notices, warnings or demands given or made by any person other then jointly
by Aquis and Alert, and agree that the Escrow Trustee shall not be liable for
any loss or damage sustained by anyone, whether a party to this Escrow
Agreement or otherwise, resulting from the refusal of the Escrow Trustee to
surrender or deliver up the said Payments, in whole or in part, without the
required order from Aquis. Further, if the Payments or any part thereof shall be
attached, garnished or levied upon under process of any court, or if the
delivery thereof by the Escrow Trustee shall be stayed or enjoined by any court
order or writ, or any other order, judgment, or decree be made or entered by any
court which affects the Payments, or any part thereof, then the Escrow Trustee
shall comply with said order, judgment, decree or writ and shall have no duly to
inquire into the validity or enforceability of such order, judgment, decree or
writ or whether same was issued by the court with or without jurisdiction. If
the Escrow Trustee obeys or complies with any such writ, order, judgment or
decree of any court, it shall not be liable to any of the parties hereto, or any
other person by reason of such compliance, notwithstanding such writ, order;
judgment or decree be subsequently reversed, modified, annulled, set aside or
vacated. The Escrow Trustee shall not be liable for any depreciation or change
in value of the Payments or any part thereof under any circumstances.
12. In order to induce Escrow Trustee to accept this escrow trust, the
undersigned, for themselves, their heirs, personal representatives, successors
and assigns agree that the Escrow Trustee shall not be liable for any acts or
omissions of any kind unless caused by its willful misconduct or gross
negligence. The said undersigned hereby indemnify Escrow Trustee for, and holds
it harmless against, any loss, liability or expense incurred, arising out of or
in connection with its administration of this escrow trust, as well as the cost
and expenses of defending against any claims or liabilities arising therefrom,
unless caused by the willful misconduct or gross negligence of escrow trustee.
In case the Escrow Trustee is made a party defendant to any suit or proceedings
regarding this escrow trust, the undersigned, for themselves, their heirs,
personal representatives, successors and assigned, jointly and severally agree
to pay to the Escrow Trustee upon written demand all costs, attorney's fees and
expenses incurred with respect thereto. The Escrow Trustee shall have a lien on
the Payment herein, and any earnings thereon, for any and all such costs, fees,
and expenses. If said costs, fees and expenses are not paid, then the Escrow
Trustee shall have the right to reimburse itself out of the Payments.
13. The Escrow Trust fees of $N/A will be billed one half to Aquis and
one half to Alert. An annual maintenance fee, as determined by the then current
rate schedule. The parties hereto agree that the escrow fee for this Escrow
Agreement is to be billed at acceptance and is due and payable within 30 days
from the billing date.
14 Communications among the parties to this Escrow Agreement shall be
delivered by messenger or forwarded by registered or certified mail or Federal
Express or other overnight courier and shall be effective when received. The
president of the applicable company shall sign all communications from Aquis or
Alert. All communications shall refer to the Escrow Account, and be addressed:
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If to Alert, to: with a copy to:
Alert Communications, LLC Xxxxx Xxxxxx & XxXxxxxx, Ltd.
000 Xxxxx Xxxxxxx Xx., Xxxxx 000 000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000 Facsimile: 000-000-0000
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
If to the Escrow Trustee, to:
Xxxxxx Bank Barrington, N.A.
000 Xxxxx Xxxxx Xxx.
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
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 he 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.
15. This Escrow Agreement may not be modified or supplemented or any of
its provisions waived, except as agreed in writing by all parties. The escrow
may not be terminated except by disbursement of all of the Payments in
accordance with the terms of this Escrow Agreement.
16. This Escrow Agreement sets forth exclusively the duties of the
Escrow Trustee with respect to any and all matters pertinent hereto, and the
Escrow Trustee shall be subject to no implied duties or obligations; this Escrow
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois. This Escrow Agreement, amendments or supplemental
instructions hereto may be executed in counterparts, each of which shall be
deemed an original and all shall such counterparts together shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the Execution Date first written above.
ACQUIS WIRELESS COMMUNICATIONS, INC.
By:_____________________________
Name:___________________________
Title:__________________________
ALERT COMMUNICATIONS, L.L.C.
By:_____________________________
Name:___________________________
Title:__________________________
XXXXXX BANK BARRINGTON, N.A.
By:_____________________________
Name:___________________________
Title:__________________________
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