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OFFER TO BUY AND XXXX OF SALE AGREEMENT
This Offer to Buy and Xxxx of Sale Agreement ("Agreement") is made and
entered into as of the Agreement Date (defined in Paragraph 1 below) by and
between Motorola, Inc. a Delaware corporation, having an office at 0000 Xxxx
Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Motorola"), and Champion
Communication Services, Inc., a Delaware (corporation) (partnership) (sole
proprietorship) - Cross Out Two, with its principal office at 0000 Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("Buyer").
Motorola and Buyer agree as follows:
BACKGROUND FACTS
A. Motorola has engaged providing community repeater ("CR") communication
service to one or more users of that type of communications service in the
Central Division area.
B. Buyer desires to make an offer to purchase the CR assets of Motorola
that are listed in Exhibit A ("Property"). This document constitutes Buyer's
offer to purchase the property and, if accepted by Motorola in accordance with
Paragraph 1 below, this document will constitute the Offer to Buy and Xxxx of
Sale Agreement between Buyer and Motorola whereby Buyer will purchase the
property from Motorola.
OFFER TO PURCHASE TERMS AND CONDITIONS
1. (a) Buyer knows that Motorola may receive other offers to purchase
the Property from other potential purchasers. Buyer acknowledges that until
Motorola enters into a legally binding contract to sell the Property, Motorola
reserves the right, in its sole discretion, to reject or disregard, now or at
anytime in the future, each or any offer to purchase the property that Motorola
receives from any prospective purchaser, including Buyer.
(b) When the Schaumburg, Illinois office of the General Manager of
Motorola's U.S. Domestic Network Services Division ("General Manager") has in
hand an original of this Agreement that has been executed by Buyer, that shall
constitute an offer by Buyer to purchase the Property from Motorola. That
document shall not become a binding contract between Buyer and Motorola until
the date, if any, the General Manager accepts this Agreement by sending to Buyer
from the General Manager's Office a fully executed copy of the Agreement that
has been signed by the General Manager ("Agreement Date"). No act or omission
by Motorola which occurs prior to the Agreement Date can be characterized by
anyone to either constitute acceptance of this Agreement by Motorola or
otherwise create a claim in anyone related in any way to the subject matter of
this Agreement.
2. (a) For and in consideration of Buyer's payment of the amount set
forth in paragraph 3 below, Motorola agrees to sell to buyer the Property
listed on Exhibit A. The Closing Date for the purchase and sale of the Property
shall be Dec. 15, 1994 ("Closing Date").
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(b) On the Closing Date, Motorola will deliver to Buyer title to the
Property free and clear of all financial liens and encumbrances, charges or
title retention, or other security arrangements.
3. As full payment for the property, buyer shall pay Motorola an amount
equal to the sum of ($270,000) Dollars ("Purchase Price"). Within seven (7)
days after the Agreement Date, Buyer shall pay Motorola a deposit of
Twenty-Five Percent (25%), ($67,500.00) Dollars in cash by certified check.
At least fifteen days prior to the Closing Date, Buyer shall pay Motorola the
remainder of the Purchase Price ($202,500) Dollars in cash by certified check.
That payment shall be a condition precedent to Motorola's obligation to sell
the Property to Buyer on the Closing Date.
4. All property is sold F.O.B. its current physical location (e.g. antenna
site) as of the Closing Date. Buyer is responsible for all costs and
arrangements associated with transferring the Property to Buyer, including, if
applicable, dismantling the Property (including labor and material), and
loading, transporting, and removing it from the F.O.B. point. Buyer assumes sole
responsibility for safety in securing the load(s), and for clearing up any
debris generated by Buyer's actions in loading or removing the property from
F.O.B. point.
5. Buyer shall comply with all federal, state, local, and OSHA regulations.
While at any Motorola site, Buyer shall comply with all Motorola's rules which
may be imposed from time to time.
6. (a) WITH THE EXCEPTION OF THE WARRANTY OF TITLE STATED IN PARAGRAPH
2B ABOVE, MOTOROLA SELLS ALL OF THE PROPERTY "AS IS - WHERE IS", AND MAKES NO
GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO CHARACTER,
QUALITY, CONDITION, WEIGHT, SIZE, OR DESCRIPTION OF ANY PROPERTY, ITS
MERCHANTABILITY, ITS FITNESS FOR ANY USE OR PURPOSE, OR OTHERWISE.
(b) BUYER AGREES THAT FULL OPPORTUNITY WAS GIVEN TO MAKE INSPECTION
OF THE PROPERTY AT BUYER'S SOLE EXPENSE. FAILURE TO INSPECT WILL NOT CONSTITUTE
GROUNDS FOR ANY CLAIMS AGAINST MOTOROLA OR ITS ASSIGNS. BUYER ACKNOWLEDGES THAT
A USER SUMMARY MAY CONTAIN ERRORS AND OMISSIONS.
(c) MOTOROLA MAKES NO REPRESENTATION OR WARRANTY ABOUT THE PAST
PROFITABILITY OR LOSSES OR REVENUE OR EXPENSES IN THE BUSINESS OPERATION WHICH
USED THE PROPERTY, AND MOTOROLA ALSO MAKES NO REPRESENTATION OR WARRANTY ABOUT
THE POSSIBLE CONTRIBUTION (OR LACK OF IT) ANY OR ALL OF THE PROPERTY
(INCLUDING, WITHOUT LIMITATION, EACH USER SUMMARY OR ANY INFORMATION MOTOROLA
PROVIDES WHICH RELATES IN ANY WAY TO A USER SUMMARY) MIGHT MAKE TO BUYER'S
REVENUE, EXPENSES, PROFITABILITY OR LOSSES SHOULD BUYER USE THE PROPERTY IN A
SIMILAR BUSINESS ENTERPRISE OR OTHERWISE.
7. Buyer agrees that Motorola will not be required to make available any
documentation, reports, drawings, or instruction manuals of the Property.
8. The purchase price set forth in Paragraph 3 herein is exclusive of, and
buyer shall be responsible for, all taxes, levies, assessments, and the like
arising out of, or in any way connected with, this Agreement or the sale,
dismantling, loading, transportation, removal, possession, or use of the
Property.
9. Subject to Paragraph 10, risk of loss, damage or destruction of the
Property or any part thereof from any cause shall be upon Motorola until the
Closing Date. In the event the Property or any material part thereof is lost,
damaged or destroyed when the risk of loss is upon Motorola, Buyer shall have
the
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right to terminate this Agreement by written notice to Motorola and upon such
termination, there shall be no further liability on the part of either party
under this Agreement. However, if only a portion (i.e. less than fifty percent
(50%) of the total value of the property) of the property is lost, damaged or
destroyed as aforesaid, Buyer will be obligated to consummate the purchase of
the remaining property and the value of the Property that is lost, damaged or
destroyed shall be deducted from the purchase price. Notwithstanding the
foregoing, if the Property is damaged or destroyed as a direct result of the
negligence of Buyer, Buyer shall, at Motorola's option, repair or replace the
damaged or destroyed Property.
10. If the property shall, at Motorola's discretion, be loaded and held for
payment, risk of loss shall pass to Buyer upon such loading or the Closing Date,
whichever occurs earlier, and other costs that may accrue in respect to such
loading will be for Buyer's account.
11. (a) Buyer acknowledges that Motorola Does not warrant that any of
the current users of any CR reflected in any User Summary or otherwise will
continue to use, now or in the future, any CR Property being purchased by
Buyer. Likewise, Motorola makes no representation that any CR communication
service user agreement between Motorola and any CR user will assigned to Buyer
or continued in force for any time period whatsoever.
(b) Buyer also acknowledges that Motorola has not made any
representation of any kind regarding potential costs of CR operation or use or
future availability of antenna sites that may relate in anyway to Buyer's use
of any CR. In that regard, Buyer understands that this agreement does not now
and will not at anytime in the future, create in Buyer any right, title or
interest in or any claim whatsoever to any antenna site where any item Property
to be sold may be relocated.
12. (a) Motorola shall be excused for any delay in performance due to
acts of God, war, riot, insurrection, fires, flood, accidents, strikes,
differences with workers delays in transportation, shortage of furl, labor or
material or other circumstances or cause beyond the control of Motorola in
reasonable conduct of the business.
(b) IN NO EVENT SHALL MOTOROLA BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
13. There are no understandings between the parties hereto as to the subject
matter of this Agreement other than as set forth herein. All previous
communications about the subject matter of this Agreement, either oral or
written, are hereby abrogated and withdrawn, and this Agreement constitutes the
entire agreement between the parties. No terms, conditions, understandings, or
agreements purporting to modify or vary the terms of this document shall be
binding unless hereafter made in writing and signed by both parties hereto.
Buyer may not assign this Agreement or any of its interest or rights under this
Agreement without Motorola's prior written consent. Buyer acknowledges that this
Agreement does not effect in any way, any other contract for Motorola products
or services between Buyer and Motorola, if any, and it does not create any
express or implied obligations on Motorola to establish any other contractual
relationships with Buyer.
14. THIS AGREEMENT IS DEEMED BY THE PARTIES TO HAVE BEEN ENTERED INTO IN
ILLINOIS; AND THIS AGREEMENT INTERPRETATION, CONSTRUCTION AND THE RIGHTS, DUTIES
AND REMEDIES FOR ITS ENFORCEMENT OR BREACH ARE TO BE DECIDED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS. THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS, AND
ASSIGNS, AND MAY BE EXECUTED IN TWO OR MORE DUPLICATE ORIGINALS, EACH OF WHICH
SHALL TOGETHER CONSTITUTE ONE AND THE SAME AGREEMENT.
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15. The invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provisions hereof.
16. The following exhibits are attached hereto and incorporated into this
Agreement by this reference:
A. Detailed List of CR Assets; User Summary(s)
Each of the parties to this Agreement have executed this Agreement on
the execution dates shown below. The parties agree that the effective date of
this Agreement shall be the Agreement Date.
(BUYER'S COMPANY NAME) MOTOROLA, INC.
CHAMPION COMMUNICATION SERVICES, INC.
Buyer Motorola
Execution Date: October 5, 1994 Execution Date: 10-13-94
By: /s/ XXXXX X. XXXXXX By: /s/ XXX XXXXXX
------------------------------- ---------------------------------
Xxxxx X. Xxxxxx Xxx Xxxxxx, V.P., General Manager
U.S. Domestic Network Services
Title: President Division
By: /s/ XXXX XXXXXX
-------------------------------
Corporate Secretary / Witness
(as applicable)
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EXHIBIT A -- OFFER TO BUY AND XXXX OF SALE AGREEMENT
LIST OF COMMUNITY REPEATER ASSETS
BUYER INITIALS: DAT
MOTOROLA'S INITIALS:
----------------
| 800 MHZ C/R |
---------------- Approximate A/S
St. Site C/R # P/L # Users Units Frequency Latitude Longitude LEASE TX/RX
-------- ----- ----- ----- ----- --------- -------- --------- ------- -----
IL Batavia 1 295 0648C 2 14 851.0625 41-50-22 88-17-43 Motorola No
IL Batavia 1 772 1118C 2 6 854.7375 41-50-22 88-17-43 Motorola No
IL Batavia 1 801 1146C 5 45 853.8125 41-50-22 88-17-43 Motorola No
Il Elgin 1 775 1121C 3 17 852.2375 42-02-43 88-15-35 Motorola Yes
IL Lake Zurich 1 1026 0416C 1 9 854.2125 42-14-10 88-03-53 Motorola No
IL Lake Zurich 1 458 0810C 4 28 851.7625 42-14-10 88-03-53 Motorola No
IL Lake Zurich 1 523 0872C 2 12 852.8875 42-14-10 88-03-53 Motorola No
IL Lake Zurich 1 631 0979C 1 15 853.6875 42-14-10 88-03-53 Motorola No
IL Lockport 1 649 0998C 3 59 853.5375 41-37-27 88-00-17 Motorola Yes
IL McHenry 1 650 1000C 5 40 852.3125 42-21-20 88-19-00 Motorola Yes
IL Orland Park 1 476 0828C 1 3 851.6625 41-35-17 87-51-51 Motorola Yes
IL Sears 1 1025 0415C 5 46 852.0125 41-52-44 87-38-10 Motorola No
IL Sears 1 255 0606C 1 9 851.1125 41-52-44 87-38-10 Motorola No
IL Sears 1 256 0607C 3 24 851.0875 41-52-44 87-38-10 Motorola No
IL Sears 1 293 0646C 1 20 851.2375 41-52-44 87-38-10 Motorola No
IL Sears 1 294 0647C 2 32 851.2125 41-52-44 87-38-10 Motorola No
IL Sears 1 365 0721C 1 61 854.3125 41-52-44 87-38-10 Motorola No
IL Sears 1 366 0722C 4 23 851.2875 41-52-44 87-38-10 Motorola No
IL Sears 1 368 0724C 3 12 851.5375 41-52-44 87-38-10 Motorola No
IL Sears 1 387 0743C 1 56 852.0375 41-52-44 87-38-10 Motorola No
IL Sears 1 389 0745C 2 71 851.3625 41-52-44 87-38-10 Motorola No
IL Sears 1 390 0746C 5 57 852.1375 41-52-44 87-38-10 Motorola No
IL Sears 1 391 0747C 3 48 851.7125 41-52-44 87-38-10 Motorola No
IL Sears 1 392 0748C 3 34 851.8125 41-52-44 87-38-10 Motorola No
IL Sears 1 443 0796C 3 15 852.2125 41-52-44 87-38-10 Motorola No
IL Sears 1 527 0875C 4 22 852.0875 41-52-44 87-38-10 Motorola No
IL Sears 1 541 0889C 1 37 853.0125 41-52-44 87-38-10 Motorola No
IL Sears 1 574 0923C 5 36 852.6875 41-52-44 87-38-10 Motorola No
IL Sears 1 580 0927C 3 31 852.8375 41-52-44 87-38-10 Motorola No
IL Sears 1 581 0928C 3 36 852.7125 41-52-44 87-38-10 Motorola No
IL Sears 1 590 0938C 1 19 853.0875 41-52-44 87-38-10 Motorola No
IL Sears 1 591 0939C 3 22 853.1375 41-52-44 87-38-10 Motorola No
IL Sears 1 606 0956C 2 24 853.3625 41-52-44 87-38-10 Motorola No
IL Sears 1 611 0960C 1 30 852.1625 41-52-44 87-38-10 Motorola No
IL Sears 1 681 1028C 4 56 853.5625 41-52-44 87-38-10 Motorola No
IL Sears 1 682 1029C 2 35 853.5125 41-52-44 87-38-10 Motorola No
IL Sears 1 683 1030C 2 75 853.6625 41-52-44 87-38-10 Motorola No
IL Sears 1 684 1031C 3 21 853.8625 41-52-44 87-38-10 Motorola No
IL Sears 1 686 1032C 1 6 853.6125 41-52-44 87-38-10 Motorola No
IL Sears 1 687 1033C 2 23 854.2625 41-52-44 87-38-10 Motorola No
IL Sears 1 766 1112C 1 2 854.7125 41-52-44 87-38-10 Motorola No
IL Sears 1 778 1122C 1 22 854.5875 41-52-44 87-38-10 Motorola No
WI Pleasant Prairie 1 473 0825C 4 25 851.6625 42-30-36 87-53-11 Motorola Yes
IN Rossville 1 820 1166C 2 17 855.4375 40-23-20 86-36-46 Motorola Yes
MN Minneapolis 1 385 0741C 2 10 851.1625 44-58-30 93-16-30 Motorola No
MN Minneapolis 1 804 1149C 1 78 851.4125 41-58-36 93-16-11 Motorola No
MN Minneapolis 1 871 1220C 2 8 851.5375 41-58-36 93-16-11 Motorola No
MN Minneapolis 1 961 1312C 1 3 851.8375 41-58-36 93-16-11 Motorola No
MO Xxxxxxx 1 339 0694C 1 9 851.0125 38-38-51 90-20-13 Motorola No
MO Xxxxxxx 1 674 1021C 2 27 851.0875 90-20-13 90-20-13 Motorola No
MO Kansas City 1 14 2270C 5 29 851.0375 39-05-58 94-34-57 Motorola No
OH Amherst 1 587 8024C 2 8 863.1375 41-41-03 81-02-34 Direct Yes
OH Dayton 1 633 5056C 3 27 851.0375 39-43-51 84-15-47 Motorola No
OH Newark 1 1101 8072C 3 27 852.4125 40-04-50 82-21-51 Motorola No
TOTAL 54 133 1521
