ASSET PURCHASE AGREEMENT
By and Between
AQUIS COMMUNICATIONS, INC., as Purchaser
and
SOURCEONE WIRELESS, INC.
SOURCEONE WIRELESS, L.L.C. and
SOURCEONE WIRELESS II, L.L.C., as Sellers
DATED AS OF AUGUST 2, 1999
This ASSET PURCHASE AGREEMENT (together with Schedules and Exhibits,
"Agreement") is made as of this 2nd day of August 1999 by and between Aquis
Communications, Inc., a Delaware Corporation ("Purchaser") and SourceOne
Wireless Inc. ("SOWI"), SourceOne Wireless, L.L.C. ("LLC"), SourceOne Wireless
II, L.L.C. ("LLC II, together with SOWI and LLC, "Sellers"). SOWI, LLC, LLC II,
and Aquis may sometimes be referred to individually as "Party" and collectively
as the "Parties." SOWI, LLC, and LLC II may sometimes be referred to
collectively as "SourceOne."
RECITALS
A. SourceOne 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 LLC II by the Federal Communications Commission ("FCC") for provision
of service to subscribers.
B. The largest 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. The Midwest System comprises (a) seventy-five (75)
transmitter sites ("Midwest Transmitter Sites") through which SourceOne provides
paging service to certain Subscribers ("Midwest Subscribers") and (b) fifty-two
(52) other transmitter sites ("Other Midwest Transmitter Sites"). A list of the
Midwest Transmitter Sites and Other Midwest Transmitter Sites that make up the
Midwest System and the associated Midwest Licenses is attached as Schedule A to
the Management Agreement (defined below).
C. The remaining Systems ("Other Systems") authorized to SourceOne
pursuant to FCC Licenses issued to LLC II on other frequencies ("Other
Licenses") provide service to other Subscribers ("Other Subscribers").
D. SourceOne also provides paging service to additional subscribers
("Additional Subscribers") in various geographic areas on systems not licensed
to SourceOne, including through resale and other agreements ("Additional
Subscriber Agreements"). The term "Subscribers" as used hereinafter will be
defined to include Midwest Subscribers and Additional Subscribers.
E. LLC II is wholly owned and controlled by LLC and LLC is, in turn,
controlled by SOWI.
F. On April 29, 1999, SOWI and, on July 2, 1999, LLC (together with SOWI,
"Debtors") filed voluntary petitions for relief in the Bankruptcy Court for the
Northern District of Illinois ("Bankruptcy Court") under chapter 11 of title 11
of the United States Code ("Bankruptcy Code"). Debtors have continued in the
possession of their assets and the management of their business pursuant to
Bankruptcy Code sections 1107 and 1108.
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G. This Agreement sets forth the terms and conditions upon which, subject
to Bankruptcy Court approval, Sellers will sell, transfer, assign, and deliver
to Purchaser, and upon which Purchaser will purchase and acquire from Sellers
the Transferred Assets (defined below).
H. The Closing is conditioned upon, among other things, FCC consent to
assignment of the Midwest Licenses from LLC II to Purchaser pursuant to
applications (together "Assigned Application") that must be filed with,
processed, and granted by the FCC ("FCC Approval").
I. Pending FCC Approval, and subject to Bankruptcy Court approval of the
Management Agreement, Aquis will operate the Midwest Business (as defined in the
Management Agreement) pursuant to (a) a Special Temporary Authority ("STA") to
acquire de facto control of the Midwest System and (b) a management agreement
("Management Agreement"), substantially in the form attached as Exhibit A.
THE PARTIES AGREE THEREFORE AS FOLLOWS:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Transferred Assets.
On the terms and subject to the conditions of this Agreement, at the
Closing, Sellers agree to sell, transfer, assign, and deliver to Purchaser and
Purchaser agrees to purchase from the Sellers all of each Seller's right, title,
and interest in and to all of the rights, properties, and assets specified in
this section 1.1 ("Transferred Assets") other than the Excluded Assets:
1.1.1 Midwest System Assets. All Midwest System Assets as defined in the
Management Agreement, other than those specified in Management
Agreement sections 1.1.9 (Retained Employees), 1.1.10 (Bank
Accounts), and 1.1.13 (right to operate).
1.1.2 - 1.1.21 [Intentionally Left Blank]
1.1.22 FCC Licenses. The Midwest Licenses specified on Schedule A
attached to the Management Agreement.
1.1.23 Prepaid Expenses. All prepaid expenses of Sellers as will be
specified.
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1.1.24 Actions. All claims, causes of action, and choses in action
related to the Transferred Assets except as provided in section
1.3(i) of this Agreement.
1.1.25 Goodwill. All goodwill of Sellers related to the Midwest Business.
1.1.26 Telephone Numbers. The telephone numbers that have been assigned
to or associated with individual paging units (or are available
for such assignment to or association with individual paging
units) as part of the Midwest Business ("Telephone Number
Inventory") and office telephone and other utility services
related to the Midwest Business.
1.1.27 Other Subscriber Assets. All Other Subscriber Assets as defined in
the Management Agreement.
1.1.28 Schedules. The Transferred Assets, including prepaid expenses and
Telephone Number Inventory will be set forth in Schedules agreed
to and prepared by the Parties at least ten (10) days prior to
Closing.
Section 1.2 Transferred Assets Free and Clear.
All of the Transferred Assets will be transferred by Sellers and
acquired by Purchaser free and clear of all liens, claims, encumbrances or
adverse or third-party interests, or restrictions ("Encumbrances"). The purchase
of the Transferred Assets will be effective as of the Closing Date.
Section 1.3 Excluded Assets.
Notwithstanding anything to the contrary herein, from and after the
Closing, (i) Sellers will retain all of their existing right, title, interest in
and to all of its assets that are not identified as Transferred Assets and (ii)
the following are excluded from the sale, transfer, and assignment to Purchaser
(together, "Excluded Assets"):
(a) The corporate seals, certificates of incorporation, articles of
organization, operating agreements, minute books, stock books, tax returns, or
other records having to do with the organization of Sellers prior to the Closing
Date.
(b) All books and records related to the Excluded Assets and
Excluded Liabilities and that are not necessary to operate the Midwest Business.
(c) The Tax attributes of Sellers (including any Tax refund or net
operating losses).
(d) Claims, reserves, refunds, and other rights in respect of
insurance policies of Sellers.
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(e) All cash, cash equivalents, and cash in transit, as of the
Closing Date, subject to Sellers' obligations under the Management Agreement.
(f) All interests in any limited liability company.
(g) Professional retainers paid by Sellers.
(h) The rights which accrue or will accrue to Sellers under this
Agreement.
(i) All claims and causes of action of Debtors' bankruptcy estates
arising under Bankruptcy Code sections 544, 547, 548, 549, 550, and 553 and
claims and causes of action specified on Schedule 1.3(i).
(j) Other Systems and Other Licenses.
Section 1.4 Assumption of Certain Liabilities.
In addition to the consideration provided for in Section 1.6, at the
Closing, Purchaser agrees to assume and discharge or perform when due the
following obligations and liabilities of Sellers expressly set forth in this
Section 1.4 and no others ("Assumed Liabilities"):
(a) All liabilities and obligations that accrue or are required to
be performed after the Closing Date pursuant to any unexpired leases or
executory contracts ("Section 365 Contracts") that are included among the
Transferred Assets and assumed and assigned under Bankruptcy Code section 365
and in accordance with the Approval Order (defined below). Section 365 Contracts
will be identified prior to Closing and the time to assume and assign Section
365 Contracts will be extended to permit assumption and assignment to Purchaser.
(b) All liabilities and obligations that accrue and are required to
be performed after the Closing Date to the extent related to or arising out of
the ownership or operation of the Transferred Business (defined below) by
Purchaser after the Closing.
(c) All liabilities and obligations of Sellers for deferred revenue,
which are revenues billed or received by Seller for services not yet rendered as
of the Closing Date.
(d) All liabilities with respect to return of or performance
required as a result of Deposits and Other Deposits, as those terms are defined
in the Management Agreement.
(e) If Purchaser retains any of Sellers' employees (who are Retained
Employees under the Management Agreement) after the Closing and the employment
of any of those employees is subsequently terminated without cause within 45
days after the
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Closing, then Purchaser agrees to pay that employee severance compensation equal
to 90 days of that employee's salary or compensation.
Section 1.5 Excluded Liabilities.
(a) Liabilities Expressly Excluded. Except as expressly provided by
Section 1.4 of this Agreement, Purchaser has not assumed and is not liable or
responsible for any of the liabilities, commitments, or obligations of Sellers,
of any kind or nature whether presently in existence or arising in the future,
including, but not limited to, any obligation or liability arising out of any
Seller's employment or termination of any employee ("Excluded Liabilities").
(b) Responsibility of Sellers. All Excluded Liabilities are retained
by and remain obligations and liabilities of Sellers. It is expressly understood
and agreed that the Parties intend that Purchaser is not considered to be a
successor to any Seller by reason of any theory of law or equity and that
Purchaser has no liability, except as otherwise expressly provided in this
Agreement, for any liability of any Seller.
(c) Cure Amounts. Sellers will pay all cure amounts owing under any
of the Section 365 Contracts that must be paid as a condition to their
assumption or assignment to Purchaser in the amount that (a) the parties to
those contracts agree or (b) the Bankruptcy Court orders to be paid. If
Purchaser identifies that certain Sellers' contract with MCI Telecommunications
Corp. ("MCI Contract") as a Section 365 Contract to be assumed and assigned to
Purchaser, then Purchaser will pay any cure amounts related to the MCI Contract.
Section 1.6 Purchase Price.
(a) Purchase Price. The purchase price ("Purchase Price") for the
Transferred Assets is as follows:
(i) The sum of $4,000,000 ("Cash Payment") subject to
adjustments in accordance with section 1.6(d), by
certified or bank check or by wire transfer payable to
Sellers.
(ii) In addition to the Cash Payment set forth above,
Purchaser will deliver to Sellers $3,375,000 of Aquis
7.5% Cumulative Preferred Shares in the form attached as
Exhibit __ (the "Aquis Shares) subject to adjustments in
accordance with section 1.6(e).
(b) Allocation of Purchase Price. Prior to the Closing, the Parties
will agree to the allocation of the Purchase Price for tax and accounting
purposes. This allocation will also provide that $880,000 of the Aquis Shares
will be allocated to equipment located at Other Midwest Transmitter Sites.
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(c) Pre-Closing Escrow. Concurrent with the execution and delivery
of this Agreement, Purchaser will deposit the sum of $200,000 ("Escrow Fund")
with the escrow agent under the terms of the Escrow Agreement acceptable to the
Parties. At Closing, the Parties agree to direct escrow agent to pay the Escrow
Fund to Sellers. The Escrow Fund will (i) be part of the Purchase Price and (ii)
reduce the Cash Payment. If this Agreement is terminated without a Closing, then
the Escrow Fund will secure Purchaser's obligations, as manager under the
Management Agreement, to remit the Returned Receivables Amount and the Returned
Other Receivables Amount and to pay Outstanding Expenses, as those terms are
defined in the Management Agreement.
(d) Purchase Price Adjustments. The Purchase Price will be reduced,
first from the Cash Payment and then from the Aquis Shares, by the following
amounts:
(i) The amount by which $7.26 million exceeds the actual Net
Service Revenue on the Take-Over Date (as defined in the
Management Agreement) due to the termination (voluntary
or involuntary) of Subscribers and Other Subscribers
prior to the Take-Over Date, but for whom billing had
not been terminated by that date.
For this subsection 1.6(d)(i), "Net Service Revenue"
means (a) all Sellers' revenues from paging service,
rentals, maintenance, and related charges, but excluding
revenues from sale of pagers, parts, and accessories;
tax refunds, insurance claims, or other similar refunds
or recoveries; and late charges, minus (b) payments to
third party service providers and resellers, including
expenses incurred to xxxx and collect amounts owed by
users of "calling party pays" services, and payments for
any dispatch services. A form of the calculation of Net
Service Revenues is attached as Schedule 1.6.(d).
(e) Other Price Adjustments. The Sellers' failure to sell, assign,
transfer, and deliver the following Transferred Assets will not be a basis to
terminate this Agreement, but will reduce the Aquis Shares portion of the
Purchase Price by the following amounts:
(i) For an unexpired lease ("Site Lease") for use of an
Other Midwest Transmitter Site, Purchaser may, in its
sole and absolute discretion, require that a Site Lease
for an Other Midwest Transmitter Site be assigned at
Closing and, in that event, Purchaser agrees to pay
one-half of the cure amount required under Bankruptcy
Code section 365 to effect the assignment and the amount
of Purchaser's portion of the cure amount will be
deducted from the Aquis Shares portion of the Purchase
Price.
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(ii) For equipment missing from an Other Midwest Transmitter
Site: $18,000 per site.
Section 1.7 Closing.
The closing of the purchase and sale provided for in this Agreement
will take place at the offices of Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP, New
York, New York, or such other place as the Parties may agree, on a date not more
than five (5) days after the date upon which all of the conditions precedent to
the Closing stated in Article IV have been satisfied in full and occurs no later
than February 28, 2000. (This closing is sometimes referred to as the "Closing,"
and the time and date of the Closing are sometimes referred to as the "Closing
Date").
Section 1.8 Deliveries By Sellers at Closing.
At the Closing, Sellers will deliver to Purchaser:
(a) Transfer Documents. Instrument(s) of conveyance or bills(s) of
sale and assumption and assignment agreements in form and substance reasonably
satisfactory to Purchaser.
(b) Closing Certificates. One or more certificates on behalf of
Sellers, dated as of the Closing Date and signed by an officer, certifying that
Sellers have performed and complied with all of the conditions set forth in
Sections 4.1 and 4.2 of this Agreement, and the receipt of all necessary
authorizations and incumbency matters.
(c) Approval Order. A certified copy of the Approval Order.
(d) LLC II. Certificates of good standing of LLC II dated within
five (5) days of the Closing Date from the jurisdiction of organization of LLC
II together with certificates bringing down to date the information contained in
each certificate dated not earlier than five days prior to the Closing Date.
(e) All such other certificates, documents, endorsements,
instruments, and opinions of counsel as Purchaser may reasonably request for the
purpose of (A) vesting in Purchaser good and valid title to the Transferred
Assets, free and clear of all Encumbrances, (B) transferring the Section 365
Contracts, and (C) enabling Purchaser to operate the Midwest Business and the
business of providing service to Other Subscribers using the Other Subscriber
Assets (together with the Midwest Business, "Transferred Business").
Section 1.9 Deliveries By Purchaser at Closing.
At the Closing, Purchaser will deliver to Sellers:
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(a) Cash Consideration. The Cash Payment less the Escrow Fund and
the Closing Adjustments, which amount will be paid at the Closing by wire
transfer as directed in writing by Sellers.
(b) Aquis Shares. Original stock certificates for the Aquis Shares,
bearing the appropriate legend.
(c) Closing Certificates. One or more certificates on behalf of
Purchaser, dated as of the Closing Date and signed by an officer, certifying
that Purchaser has performed and complied with all of the conditions set forth
in Sections 4.1 and 4.3 of this Agreement, and the receipt of all necessary
authorizations, and incumbency matters.
(d) Good Standing. Certificates of good standing of Purchaser dated
within five (5) days of the Closing Date from the jurisdiction of organization
of Purchaser.
(e) Aquis Shares Issuer. Certified certificate of incorporation of
the issuer of Aquis Shares and certificates, documents, endorsements,
instruments, and opinions of counsel as Sellers may reasonably request to
determine the valid issuance of the Aquis Shares.
Section 1.10 Regulatory Obligations.
At Closing, Sellers will confirm in a manner reasonably satisfactory
to Purchaser, that all obligations specified in Sections 6.10(i)-(iv) and (vi)
of the Management Agreement that accrue prior to the Take Over Date ("Regulatory
Obligations") have been paid or satisfied. Absent such confirmation, Purchaser
will withhold from the Cash Payment funds sufficient, in Purchaser's reasonably
exercised judgment, to satisfy the unpaid Regulatory Obligations and the Parties
will cooperate and consult with the FCC (or administrators of the programs
governing those Regulatory Obligations) to determine and pay those obligations
from the heldback monies. Promptly after determination and payment of those
Regulatory Obligations, Purchasers will remit any remaining amount of heldback
monies to Sellers. If heldback monies are insufficient to satisfy those unpaid
obligations, then Sellers will pay that deficiency. Under no circumstances will
Purchaser be obligated to pay any Regulatory Obligations.
Section 1.11 Further Assurances.
At any time and from time to time after the Closing, at the request
of any Party and without further consideration, the other Party will execute and
deliver such other instruments of sale, transfer, assignment, and confirmation
and take such action as the requesting Party may reasonably deem necessary or
desirable in order to more effectively transfer and assign the Transferred
Assets and to effectuate the terms of and transactions contemplated in this
Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Sellers.
As an inducement for Purchaser to enter into and perform its
obligations under this Agreement, Sellers make the following representations and
warranties to Purchaser. Sellers represent and warrant to Purchaser that each of
the following representations and warranties is correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing with
the same effect as if these representations and warranties had been made at and
as of the Closing Date.
(a) Organization. Each Seller is a legal organization, duly formed,
validly existing, and in good standing under the laws of the state of its
organization (except for SOWI due solely to SOWI's failure to pay franchise
taxes), and is licensed or qualified to do business and is in good standing
under the laws of each state in which it operates. Correct and complete copies
of the organizational documents, each as amended to date, of each Seller have
been delivered by each Seller to Purchaser. Such organizational documents are in
full force and effect.
(b) Power and Authority. Subject to the entry of the Approval Order,
each Seller has full and lawful power and authority to execute and deliver, and
to perform its obligations under, this Agreement and to own all of the
Transferred Assets and to carry on the activities of the Transferred Business as
presently conducted and to own, hold, and operate the properties that it owns
and holds. The execution and delivery of this Agreement and the other
agreements, certificates, and documents executed pursuant to this Agreement by
each Seller has been duly authorized, and such agreements, certificates, and
documents are valid and binding upon each Seller in accordance with their
respective terms.
(c) No Conflicts or Violations. Upon entry of the Approval Order and
the grant of the FCC Approval, neither the execution and delivery of this
Agreement by each Seller, nor the performance by each Seller in consummating the
transactions contemplated by this Agreement will, with or without the giving of
notice or passage of time (or both), conflict with, violate any provisions of,
result in the breach of, constitute a default under, or create or impose any
Encumbrance or condition on any Transferred Asset under: (i) any organizational
documents of any Seller, including, as applicable, certificates of
incorporation, articles of organization, by laws, or operating agreements; (ii)
any federal, state, or local state law, ordinance, regulation, or rule or any
order, writ, injunction, judgment, license, franchise, permit, or decree of any
governmental authority or arbitration tribunal by which any Seller or any
Transferred Assets are or may be bound; or (iii) any contract, indenture,
instruments, agreement, mortgage, lease, right or other obligation or
restriction to which any Seller is a party or by which any Seller or the
Transferred Assets are or may be bound.
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(d) Governmental Approvals. Except for the FCC Approval and the
Approval Order, no consent, approval, authorization of, or declaration or filing
with any governmental authority or other third party is required in connection
with the (a) execution or delivery of this Agreement by any Seller, (b) sale of
the Transferred Assets and operation of the Transferred Business as currently
operated by Sellers and the continued operation of the Transferred Business by
Purchaser as currently operated, or (c) the consummation by Sellers of the
transactions contemplated by this Agreement.
(e) Title to Transferred Assets. Sellers have good and marketable
title to all Transferred Assets. At the Closing, Purchaser will acquire good and
marketable title to the Transferred Assets, free and clear of any Encumbrances.
The Transferred Assets other than the Other Midwest Transmitter
Sites (a) constitute all of the properties, assets, and rights that have been
used in the conduct of the Transferred Business and which are necessary to the
operation of the Transferred Business; (b) generate all of Sellers' Net Service
Revenue (as defined in Section 1.6(d)(i) of this Agreement); and (c) are in
compliance with FCC regulations. There are no assets of Sellers not included in
the Transferred Assets other than the Other Midwest Transmitter Sites which are
material to the operation of the Transferred Business and the absence of which
would have a material adverse effect on the Transferred Business. The
Transferred Assets are now and will be at the Closing Date located at each
Seller's places of business where they were previously used in the operation of
the Transferred Business and will not be removed from those locations unless
Sellers receive Purchaser's prior written consent to such action, which consent
is subject to Purchaser's sole and absolute discretion.
(f) Management Agreement Representations and Warranties. Each seller
restates and incorporates into this Agreement each representation and warranty
set forth in section 6 of the Management Agreements as if set forth in full in
this Section 2.1.
(g) Limited Purpose Seller. LLC II represents that (a) it was formed
for the limited purpose of holding the Licenses, including the Midwest Licenses,
(b) it has not conducted or operated any business, (c) its organizations
documents limit its activities to holding the Licenses, (d) it has at all time
complied with its organizational documents which limit its activities to holding
the Licenses, (e) it has no creditors and does not know of any claims or
liabilities asserted against it. Promptly after the execution of this Agreement,
LLC II will deliver to Purchaser certified copies of its organizational
documents and financial statements acceptable to Purchaser in support of the
representations of this Section 2.1(g).
(h) Investment Intent; Restricted Securities. Immediately upon each
Seller's acquiring its percentage of the Aquis Shares, each Seller will transfer
such shares to its creditors pursuant to Bankruptcy Court order. Each Seller
agrees and each creditor will be advised (and the Bankruptcy Court order will
provide) that each acquiror of Aquis Shares is acquiring them solely for its own
account and not with the view to, or for resale in connection with, any
distribution thereof, other than as may be permitted under applicable
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law without registration under the Securities Act. Sellers understand (a) that
the Aquis Shares have not been and are not being registered under the Securities
Act by reason of specified exemptions therefrom, which depend upon, among other
things, the bona fide nature of its investment intent as expressed herein and as
explicitly acknowledged hereby, and (b) that the Aquis Shares are "Restricted
Securities" under the federal securities laws inasmuch as they are being
acquired from Purchaser in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be resold
without registration under the Securities Act only in certain limited sets of
circumstances. Seller agrees that the Aquis Shares may not be sold, transferred,
offered for sale, pledged, hypothecated, or otherwise disposed of without
registration under the Securities Act except as may be permitted under
applicable law. The Aquis Shares will bear appropriate legends restricting
transfer. Purchaser understands and agrees that delivery of the Aquis Shares to
Sellers creditors pursuant to Bankruptcy Court order will not constitute a
transfer in violation of this Section 2.1(h).
Section 2.2 Representations and Warranties of Purchaser.
As an inducement for Sellers to enter into this Agreement and
perform their obligations hereunder, Purchaser makes the following
representations and warranties to Seller. Purchaser represents and warrants to
Sellers that each of the following representations and warranties is correct and
complete as of the date hereof and will be correct and complete as of the
Closing, with the same effect as if said representations and warranties had been
made as of the Closing Date.
(a) Organization and Good Standing. Purchaser is a corporation duly
formed, validly existing, and in good standing under of the laws of the State of
Delaware and is licensed to do business and is in good standing under the laws
of each state in which it operates. Correct and complete copies of the
Purchaser's organizational documents, each as amended to date, have been
delivered to Sellers. Such organizational documents are in full force and
effect.
(b) Power and Authority. Purchaser has full and lawful corporate
power and authority to enter into this Agreement and purchase the Transferred
Assets.
(c) Forestallments. Purchaser is not a party to or subject to any
contract or agreement or any judgment, order, writ, injunction, or decree of any
court or governmental body which will prevent its performance of its obligations
under this Agreement.
(d) Authorization. The execution and delivery of this Agreement and
the other agreements, certificates, and documents contemplated by or referred to
in this Agreement have been duly authorized by Purchaser's directors as required
under the laws of the State of Delaware, and no other corporate action is
required for the approval of this Agreement or such other agreements,
certificates, and documents executed and delivered by
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Purchaser, all of which are valid and binding upon Purchaser in accordance with
their respective terms.
(e) No Conflicts or Violations. Subject to the conditions of this
Agreement, neither the execution nor delivery of this Agreement, nor the
performance of Purchaser in consummating the transactions contemplated by this
Agreement will conflict with or result in a violation or breach of, or default
under, any terms or provisions of (i) the corporate charter or bylaws of
Purchaser; (ii) any terms or provisions of any agreement or instrument to which
Purchaser is a party or by which it is bound; or (iii) any federal. state or
local law, ordinance, regulation, or rule or any order, writ, injunction,
judgment, license, franchise, permit, or decree of any governmental authority or
arbitration tribunal by which Purchaser is or may be bound.
(f) Approvals. Except for the FCC Approval, no consent, approval, or
authorization of or declaration or filing with any governmental authority is
required in connection with the execution or delivery of this Agreement by
Purchaser or the consummation by Purchaser of the transactions contemplated by
this Agreement.
(g) FCC Qualification. Purchaser is legally qualified to hold the
Midwest Licenses.
ARTICLE III
COVENANTS
Section 3.1 Covenants of Sellers.
Except as otherwise consented to by Purchaser, throughout the period
commencing on the date hereof and ending on the Closing Date, Sellers covenant
that they will do the following:
(a) Access. Sellers will give to Purchaser and Purchaser's counsel,
Accountants, or other representatives full access (during normal business hours)
to all properties, documents, contracts, books, records, and other data of the
Transferred Business and the Transferred Assets; provided, however, that all
information received by Purchaser and its representatives will be held in
confidence by each of them, and, provided further, that if the transaction
contemplated hereby is not consummated, all data of every kind and nature and
all copies of documents taken by any of those persons will, upon request, be
returned to Sellers and not otherwise utilized by Purchaser, and provided
further that information publicly available or previously known by Purchaser or
later acquired from third parties having no obligation of confidentiality to
Seller need not be held in confidence.
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(b) Compliance with Laws. Sellers will comply with and perform all
material obligations and duties imposed upon it by all federal and state laws
and all rules, regulations, and orders imposed by federal or state governmental
authorities,
(c) Notice of Certain Events. By written notice to Purchaser,
Sellers will notify Purchaser of the commencement of any litigation against any
Seller or the Transferred Business or of the existence of adverse business
conditions threatening the continued, normal business operations of the
Transferred Business.
(d) Leases; Licenses. Sellers will continue to meet all obligations
under all Assigned Contracts, the Midwest Licenses, and other leases and
contracts, consistent with the terms of the Management Agreement.
(e) Satisfaction of Conditions. Sellers will use their best efforts
to assure, as soon as is reasonably practicable, the satisfaction of the
conditions to the effectiveness of the transactions contemplated in this
Agreement.
(f) Good Standing. Each Seller (except for SOWI as to payment of
franchise fees) will maintain in good standing its corporate existence under the
laws of the state in which it is incorporated or organized and not adopt or
propose any change to its organizational documents except a change that would
not have any adverse effect on the transactions contemplated in this Agreement.
(g) Tax Returns, Filings, and Payments. Each Seller will prepare and
timely file all Tax returns for periods ending on or prior to the Closing Date
and will pay all Taxes for periods ending on or prior to the Closing Date. All
personal property transfers, documentary, sales, use, registration, value added,
and other similar taxes (including interest, penalties and additions to any such
tax) incurred in connection with the transactions contemplated hereby ("Transfer
Taxes") will be borne by Sellers, and Sellers will indemnify Purchaser for any
such Tax incurred by Purchaser as a result of Sellers' failure to pay any such
Tax.
(h) Compliance with WARN. Prior to the Closing Date, no Seller will
effectuate a "plant closing" or "mass layoff," as those terms are defined in
WARN, affecting any of Sellers' employees and requiring a notice to employees
pursuant to WARN, without notification to Purchaser in advance.
(i) Approval Order. Upon execution of this Agreement, Debtors will
promptly request entry of the Procedure Order and the Approval Order.
Section 3.2 Covenants of Purchaser.
Except as otherwise consented to by Sellers, Purchaser covenants
that, throughout the period commencing on the date hereof and ending on the
Closing Date, it
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will:
(a) Good Standing. Maintain its existence as a corporation validly
existing and in good standing under the laws of the State of Delaware;
(b) Satisfaction of Conditions. Use its best efforts to assure, as
soon as is reasonably practicable, the satisfaction of the conditions to the
effectiveness of the transactions contemplated in this Agreement;
(c) FINOVA Consent. Upon execution of this Agreement, promptly seek
the FINOVA Consent.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Obligations of Sellers and Purchaser.
The respective obligations of each Party to effect the transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions:
(a) No statute, rule, regulation, executive order, decree, ruling,
or preliminary or permanent injunction exists or has been enacted, entered,
promulgated, or enforced by any federal or state court or governmental authority
that prohibits, restrains, enjoins, or restricts the consummation of the
transactions contemplated by this Agreement that has not been withdrawn or
terminated;
(b) No Action exists or has commenced by or before any federal,
state, or local or any foreign government, governmental, regulatory, or
administrative authority, agency, or commission or any court, tribunal or
judicial or arbitral body against Purchaser or Seller, seeking to restrain or
materially and adversely alter the transactions contemplated by this Agreement
that, in the reasonable good faith determination of any Party, is likely to
render it impossible or unlawful to consummate such transactions; provided,
however, that the provisions of this Section 4.1 shall not apply to any Party
that has directly or indirectly solicited or encouraged any such Action.
(c) The Approval Order, FCC Approval, and the FINOVA Consent are
obtained.
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Section 4.2 Conditions Precedent to Purchaser's Obligation to Close.
All obligations of Purchaser to close under this Agreement are
subject to the fulfillment of each of the following conditions, prior to or at
the Closing:
(a) The representations and warranties made by Sellers contained
herein are true and correct at and as of the time of the Closing, with the same
effect as though such representations and warranties were made at and as of such
time, except for the representations and warranties set forth in Sections 6.1,
6.2, and 6.3 of the Management Agreement concerning Other Midwest Transmitter
Sites.
(b) Sellers, on or before the Closing, have performed and complied
with all terms, covenants, and conditions required by this Agreement to be
performed or complied with at or before the Closing.
(c) Sellers deliver to Purchaser a certificate, dated the Closing
Date and signed by an appropriate officer of Seller, certifying as to the
fulfillment of the conditions set forth in Subsections (a) and (b) of this
Section 4.2.
(d) The FINOVA Consent, the FCC Approval, and the Approval Order are
obtained.
(e) On or before October 15, 1999, Sellers will deliver to Purchaser
audited financial statements of Sellers with auditors' consents as of the fiscal
years ending December 31, 1996, 1997, and 1998 and for the period from January
1, 1999 through June 30, 1999. For the audited financial statements of Sellers
for the fiscal year ending December 31, 1998 and for the period from January 1,
1999 through June 30, 1999, Purchaser agrees to pay the following portion of the
reasonable costs and expenses of this audit at the Closing: (a) one-half of the
first $30,000 and (b) all reasonable audit costs and expenses over $30,000
(together, "Purchaser's Audit Payment"). If the Closing does not occur due to
Purchaser's default, then Purchaser will pay the Purchaser's Audit Payment.
(f) There has not been commenced, threatened, or received any
proceeding, or notice thereof, that results or could result in the citation of
any Seller or the Transferred Business for violation of zoning ordinances in
connection with the use of the Seller's locations or requiring the cessation of
such use.
(g) Sellers deliver such other documents, opinions, and certificates
as are reasonably requested by counsel for Purchaser.
Section 4.3 Conditions Precedent to the Sellers' Obligation to Close.
All obligations of Sellers to close under this Agreement are subject
to the fulfillment of each of the following conditions prior to or at the
Closing:
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(a) The representations and warranties made by Purchaser contained
herein are true and correct at and as of the time of the Closing, with the same
effect as though such representations and warranties were made at and as of such
time.
(b) Purchaser, on or before the Closing, has performed and complied
with all terms, covenants, and conditions required by this Agreement to be
performed or complied with at or before the Closing.
(c) Purchaser delivers to Sellers a certificate, dated the Closing
Date and signed by an appropriate officer of Purchaser, certifying as to the
fulfillment of the conditions set forth in Subsections (a) and (b) of this
Section 4.3.
(d) The FCC Approval and the Approval Order are obtained.
(e) Sellers' receipt of the Purchase Price in accordance with
Section 1.6.
ARTICLE V
TERMINATION
Section 5.1 Grounds for Termination.
Notwithstanding anything in this Agreement to the contrary, this
Agreement may be terminated in any of the following ways at any time before the
Closing Date only as follows:
(a) By mutual written consent of Sellers and Purchaser.
(b) By the Purchaser if any Seller has (i) misstated any material
representation or been in breach of any material warranty contained herein and
such misrepresentation or warranty breach has not been cured within 5 days after
notice from the Purchaser or (ii) been in breach of any material covenant,
undertaking or restriction contained herein and such breach has not been cured
within 5 days after notice from the Purchaser.
(c) By the Sellers if Purchaser has (i) misstated any material
representation or been in breach of any material warranty contained herein and
such misrepresentation or warranty breach has not been cured within 5 days after
notice from the Sellers or (ii) been in breach of any material covenant,
undertaking or restriction contained herein and such breach has not been cured
within 5 days after notice from the Sellers.
(d) By a Party, if a condition to Closing applicable to it hereunder
has not been satisfied by the Closing Date (or such earlier date as specified
herein) or waived in writing by that Party.
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(e) By Sellers or Purchaser if the Approval Order has not been
obtained by September 30, 1999.
(f) By Purchaser if FINOVA Consent has not been obtained by August
6, 1999.
(g) By Sellers or Purchaser if the FCC Approval has not been
obtained by February 15, 2000, unless otherwise agreed to in a writing signed by
the Parties.
(h) By Sellers or Purchaser if the Closing has not occurred by
February 28, 2000, but a Party cannot terminate this Agreement under this
Section 5.1(h) if that Party's material breach prevented the Closing.
(i) By Purchaser if (i) a trustee or examiner under chapter 7 or
chapter 11 of the Bankruptcy Code is appointed for either of the Debtors or (ii)
LLC II becomes subject to a case under the Bankruptcy Code.
(j) By Purchaser if the Bankruptcy Court does not enter a Procedure
Order which approves the amount of the Breakup Fee in accordance with Section
6.1.
(k) Automatically, if (a) the STA is terminated prior to Closing;
(b) FCC Approval is denied; (c) the Management Agreement is terminated prior to
Closing; or (d) Sellers accept a Superior Bid (as defined below).
(l) Notwithstanding the provisions of this Section 5.1, Purchaser
may not terminate this Agreement based on a non-willful breach of the
representations and warranties set forth in Sections 6.1, 6.2, and 6.3 of the
Management Agreement concerning any Other Midwest Transmitter Site.
Section 5.2 Consequences of Termination.
If the Agreement is terminated pursuant to Section 5.1, all further
obligations of the Parties will terminate and the Escrow Fund, with interest,
will be returned to Purchaser and no Party will have any liability to any other
Party or its respective directors, officers, employees, or agents, except for
any obligation of Sellers to pay the Break-up Fee (as described in Section 6.1
below).
Section 5.3 Brokers.
Except for Xxxxxxxx, with whom Sellers have entered into a separate
compensation agreement, and which compensation will be paid by Sellers, Sellers
and Purchaser represent and warrant each to the other that they have not dealt
with any broker, sales person, or finder in connection with this transaction.
Sellers and Purchaser each agree
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to indemnify, defend, and hold harmless from and against any loss, cost,
liability, or expense suffered or incurred by the other party as a result of a
claim or claims for brokerage commissions, finder's fees or other similar fees
from any party or firm that is based on the act or omission of the party in
breach of the above warranty.
ARTICLE VI
CONSENTS
Section 6.1 Procedure Order.
No later than ten (10) days after execution of this Agreement,
Debtors will file a motion with the Bankruptcy Court requesting entry of an
order in form and substance reasonably acceptable to Purchaser ("Procedure
Order"), which, among other things; (a) sets forth the procedures for notice and
approval of this Agreement; (b) sets forth bid procedures and provides overbid
protections by requiring that any initial competing bid for the Transferred
Assets must exceed the Purchase Price by $375,000; (c) approves the Management
Agreement; and (d) if Sellers accept another bid for the Transferred Assets
("Superior Bid") authorizes and directs the payment of a break-up fee of
$375,000 ("Breakup Fee") to Purchaser immediately upon receipt of a downpayment
or other monetary consideration from the entity providing the Superior Bid.
Section 6.2 Approval Order.
Concurrently with the filing of the motion requesting the Procedure
Order, Debtors will file a motion with the Bankruptcy Court requesting entry of
an order (in form and substance acceptable to Purchaser) which among other
things, (i) approves the Agreement; (ii) authorizes the sale of the Transferred
Assets free and clear of Encumbrances; and (iii) approves assumption and
assignment of the Section 365 Contracts.
Section 6.3 Consent of Lender.
Sellers and Purchaser acknowledge and agree that Purchaser's ability
to consummate the purchase of the Transferred Assets and complete the
transactions contemplated hereunder are subject to and contingent upon the
written consent of FINOVA Capital Corporation for Purchaser to enter into this
Agreement ("FINOVA Consent"), the senior lender under a credit facility with
Purchaser, which FINOVA Consent is in the sole, absolute discretion of FINOVA
Capital Corporation. This consent is not a financing contingency.
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Section 6.4 FCC Approval.
Purchaser and Sellers will, promptly after the date hereof, prepare
and file with the FCC the applications ("Assignment Applications") necessary to
obtain by "Final Order" FCC consent to the de jure assignment of the Midwest
Licenses to Purchaser. "Final Order" means an order or written action by the FCC
granting the Assignment Applications, which order or action (i) is no longer
subject to administrative or judicial reconsideration, review or appeal; and
(ii) which, if challenged, has been reaffirmed or upheld or the challenge has
been withdrawn and the applicable period for seeking further administrative or
judicial reconsideration, review or appeal has expired without the filing of any
action, petition, request for further review or further challenge. Purchaser and
Sellers will each prepare their respective portions of the Assignment
Applications and FCC fees associated therewith will be paid equally by Purchaser
and Sellers. Purchaser and Sellers will cooperate and use their reasonable
efforts to prosecute and obtain grant of the Assignment Applications by Final
Order, including, but not limited to, provision of any additional information
requested by the FCC. FCC Approval for purposes of this Agreement will only
occur upon FCC grant of the Assignment Applications by Final Order.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification.
(a) Sellers will indemnify Purchaser and agree to hold Purchaser
harmless from and against any and all damages, losses, costs, and expenses
(including reasonable counsel fees and expenses in connection with the contest
of any claim) paid or incurred by Purchaser and arising out of (i) any and all
inaccurate representations or breaches of covenant or warranty made by any
Seller under this Agreement or in any Exhibit, Schedule, certificate, list, or
other instrument delivered pursuant to this Agreement or (ii) arising out of any
and all claims made against Purchaser for any liability that Purchaser did not
assume pursuant to Section 1.5 hereof.
(b) Purchaser will indemnify Sellers and agrees to hold Sellers
harmless from and against any and all damages, losses, costs, and expenses
(including reasonable counsel fees and expenses in connection with the contest
of any claim) paid or incurred by Sellers and arising out of any and all
inaccurate representations or breaches of covenant or warranty made by Purchaser
under this Agreement or in any Exhibit, Schedule, certificate, list, or other
instrument delivered pursuant hereto.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action asserting a claim based upon any cause enumerated in
this Section 7.1, the indemnified party will, if it claims the benefits of
indemnification pursuant to this Section 7.1 with respect to such action, notify
the indemnifying party of the
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commencement thereof. Upon receipt of such notice, the indemnifying party has
the option of either assuming the defense of such action (and the cost thereof)
with counsel reasonably satisfactory to both the indemnified and the
indemnifying parties or participating in the defense of such action at the sole
expense of the indemnifying party. In the event of the indemnifying party's
assumption of the defense of such action, counsel selected by the indemnified
party may at the election of the indemnified party participate in any such
defense, at the sole expense of the indemnified party. No settlement or
compromise to be paid by the indemnifying party will be entered into without the
written consent of the indemnifying party, which consent will not be
unreasonably withheld.
(d) The indemnity provided in this Section 7.1 is limited in time
such that no party may assert a claim in respect of such indemnity at any time
after twelve (12) months after the Closing Date.
(e) Notwithstanding anything in this Section 7.1 to the contrary, no
Party may assert a claim for indemnity pursuant to Section 7.1 unless the
aggregate of all such claims by such indemnified party against such indemnifying
party exceeds $100,000, in which event the indemnifying party's obligation will
apply to all indemnified losses in excess of such amount.
(f) Notwithstanding the provisions of this Section 7.1, Purchaser
will have no claim for indemnification against any Seller based on a non-willful
breach of the representations and warranties set forth in Sections 6.1, 6.2, and
6.3 of the Management Agreement concerning any Other Midwest Transmitter Site.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Expenses.
Purchaser and Seller will each pay their respective counsel,
accountants, and other expenses incurred in connection with the negotiation and
consummation of the transactions contemplated in this Agreement.
Section 8.2 Nondisclosure of Confidential Information.
The Parties each agree that if for any reason whatsoever the
transactions contemplated by this Agreement are not consummated, all information
disclosed to the other party pursuant to this Agreement or in furtherance of it
will remain confidential, unless otherwise in the public domain, and each Party
will not use or furnish or divulge the same to any other person.
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Section 8.3 Survival of Representations and Warranties.
(a) All representations, covenants and warranties made by Sellers
and Purchaser in this Agreement or in any Exhibit, Schedule, certificate, list,
or other instrument delivered pursuant hereto will survive the Closing for a
period of twelve (12) months.
(b) Notwithstanding any right of Purchaser to fully investigate the
affairs of Sellers relating to the Transferred Business and notwithstanding any
knowledge of facts determined or determinable by Purchaser pursuant to such
investigation or right of investigation, Purchaser has the right to rely fully
upon the representations, warranties, covenants, and agreements of Sellers
contained in this Agreement or in any document delivered or to be delivered
pursuant to this Agreement by any Seller or any of the Sellers' representatives
(including, but not limited to, Xxxxxxxx or any accountant or attorney
representing Seller), in connection with the transactions contemplated by this
Agreement. Each warranty, representation, agreement, and covenant contained
herein is independent of all warranties, representations, agreements, and
covenants contained herein or in any Exhibit, Schedule, certificate, list or
other instrument or documents (whether or not covering identical or related
subject matter) and must be independently and separately complied with and
satisfied.
Section 8.4 Employees.
Purchaser has the unlimited right, but not the obligation, to seek
and secure the employment of any employee of any Seller, and Sellers shall
reasonably assist Purchaser in such efforts, but Sellers will not be required to
incur any expense thereby and, further, Sellers do not warrant or guarantee the
availability to Purchaser of any of the current employees of any Seller.
Section 8.5 Risk of Loss.
From the date hereof through the Closing Date, if any Transferred
Asset is destroyed or damaged by fire or any other cause, other than use, wear,
or loss in the ordinary course of business, Sellers will give written notice to
Purchaser as soon as practicable (but in no event later than 5 days) after
discovery by any Seller of such damage, destruction, or loss. Purchaser will
have the option of (a) having such Transferred Asset delivered to it at the
Closing in its destroyed or damaged condition in which event the Purchase Price
will be reduced by the amount allocated to such Transferred Asset (to the extent
of such damage or destruction), as mutually agreed by the parties, (b) excluding
such Transferred Asset from this Agreement, in which event the Purchase Price
shall be reduced by the amount allocated to such Transferred Asset, as mutually
agreed by the parties, or (c) replacing or repairing such Transferred Asset (any
replacement will be deemed a Transferred Asset) at Sellers' expense.
Section 8.6 Notices.
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All notices and other communications under this Agreement will be in
writing and be deemed given and effective (a) when delivered personally to the
recipient (b) when sent to recipient by electronic facsimile if during
recipient's normal business hours, otherwise on the next Business Day (with
receipt electronically confirmed and with a hard copy sent within one business
day by any other means described in this paragraph), or (c) on the first
Business Day following the day sent to the recipient for next Business Day
(morning delivery) by a nationally recognized overnight courier. Notices will be
sent to the Parties at the following addresses or facsimile telephone numbers
(or to such other address as a Party may have specified by notice given to the
other Parties pursuant to this provision).
(a) If to Purchaser:
Aquis Communications Group, Inc.
0000X Xxxxx 00
Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, President
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: 212-262-5152
(b) If to Sellers:
SourceOne Wireless, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Xxxxxxx & Xxxxxx
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. XxXxxxxxx
Facsimile: 000-000-0000
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and a copy (which will not constitute notice) to:
X'Xxxxxx & Xxxxxx, LLP 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx
Facsimile: 000-000-0000
Section 8.7 Miscellaneous.
(a) Severability. If any term or provision of this Agreement is to
any extent, invalid or unenforceable, then this Agreement will not be affected
thereby, and each term and provision of the Agreement will be valid and enforced
to the fullest extent permitted by law.
(b) Assignment. Neither Purchaser nor any Seller may assign this
Agreement or any rights hereunder prior to the Closing without the prior written
consent of the other party, but Purchaser may assign its rights hereunder to one
or more of its affiliates. After the Closing, the terms, provisions, covenants
and conditions of this Agreement will bind and benefit the Parties to and their
respective heirs, successors, personal representatives, and assigns, including,
as to Sellers, any trustee who is appointed in the Debtors' chapter 11 cases or
in any subsequent chapter 7 cases under the Bankruptcy Code.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, will be an original
instrument, and such counterparts, together, will constitute a single agreement.
(d) No Waiver. No waiver of any breach or default under this
Agreement will be considered valid unless in writing and signed by the Party
giving such waiver, and no such waiver shall be deemed a waiver of any
contemporaneous or subsequent breach or default of the same or similar nature.
Any Party may, at or before the Closing, waive any conditions to its obligations
hereunder which are not fulfilled.
(e) Entire Agreement; Amendments. This Agreement and the Management
Agreement, together with Exhibits and Schedules referred to or attached to this
Agreement and the Management Agreement, contain the entire agreement among the
Parties and supersede any other agreement, whether written or oral, among the
Parties relating to the transactions contemplated in this Agreement with respect
to the subject matter contained herein. This Agreement cannot be amended except
by a written instrument executed by the Parties that specifically states that it
is intended to amend this Agreement. No representations, promises, warranties,
covenants, understandings or undertakings exist except as expressly set forth in
this Agreement.
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(f) Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
reference to the choice of law doctrine of such state. For so long as Debtors
are subject to the jurisdiction of the Bankruptcy Court, the Parties elect as
the sole judicial forum for adjudication of any dispute between Sellers and
Purchaser arising under or related to this Agreement, and consent to
jurisdiction of, the Bankruptcy Court. After Debtors are no longer subject to
Bankruptcy Court jurisdiction, the Parties elect as the sole judicial forum for
adjudication of any matters arising under or related to this agreement, and
consent to the jurisdiction of, the Courts of the County of New York, State of
New York and the Southern District of New York.
(g) Titles and Headings. Titles and headings are inserted for
convenience and do not form part of the Agreement.
Signed: AQUIS COMMUNICATIONS, INC.
August , 1999
By: /s/ XXXX X. XXXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxxx, President
Title: President
Signed: SOURCEONE WIRELESS, INC.
August , 1999
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: XXXXX X. XXXXXX
Title: DIP MANAGER
Signed: SOURCEONE WIRELESS L.L.C.
August , 1999
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: XXXXX X. XXXXXX
Title: DIP MANAGER
Signed: SOURCEONE WIRELESS II, L.L.C.
August , 1999
By: /s/ XXXXXX X. XXXXX
----------------------------------
Name: XXXXXX X. XXXXX
Title: CFO
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