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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 (corporation) - Cross Out Two, with its principal
office at Houston, Texas ("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
Western U.S. 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 December 1, 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 twenty two thousand four hundred ($22,400) Dollars
("Purchase Price"). On the Closing Date, Buyer shall pay Motorola the Purchase
Price 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.
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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 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 Buyer's 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 located.
12. (a) Motorola shall be excused for any delay in performance due to
acts of God, war, riot, insurrection, fires, floods, accidents, strikes,
differences with workers delays in transportation, shortage of fuel, 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
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DUPLICATE ORIGINALS, EACH OF WHICH SHALL TOGETHER CONSTITUTE ONE AND THE SAME
AGREEMENT.
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.
Champion Communication Services Inc. MOTOROLA, INC.
Buyer Motorola
Execution Date: 11/24/94 Execution Date: 11-29-94
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By: /s/ XXXXX X. XXXXXX By: /s/ XXX XXXXXX
------------------------------- ----------------------------------
Xxx Xxxxxx, V.P., General Manager
U.S. Domestic Network Services
Division
Title: President
----------------------------
By:
-------------------------------
Corporate Secretary / Witness
(as applicable)
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EXHIBIT A - To Offer to Buy and Xxxx of Sale Agreement
List of Community Repeaters
Buyers Initials: LOT: RB14
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Motorola's Initials: /s/ [ILLEGIBLE]
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APPROX. APPROX. A/S BASE TX/RX
COUNTY CITY CR NAME ST P/L. NO. NO. CUST. NO. UNITS RENT STATION SYSTEM FREQ.
XX XXXXXX XX XXXXXX 00 XX 00000X 2 13 D YES YES 851.5875
TOTAL NUMBER OF CR'S 1 MARKET VALUE:
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EXHIBIT A - To Offer to Buy and Xxxx of Sale Agreement
List of Community Repeaters
Buyers Initials: LOT: RB22
------------------------
Motorolas Initials: /s/ [ILLEGIBLE]
---------------------
APPROX. APPROX. A/S BASE TX/RX
COUNTY CITY CR NAME ST P/L NO. NO. CUST. NO. UNITS RENT STATION SYSTEM FREQ.
SACRAMENTO XXXXXXXXXX XXXX XXXXX 00 XX 00000X 3 38 M YES NO 851.5625
SACRAMENTO XXXXXXXXXX XXXX XXXXX 00 XX 00000X 8 51 M YES NO 461.6750
SACRAMENTO XXXXXXXXXX XXXX XXXXX 00 XX 00000X 4 41 M YES NO 854.1625
TOTAL NUMBER OF CR'S 3 MARKET VALUE:
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EXHIBIT A - To Offer to Buy and Xxxx of Sale Agreement
List of Community Repeaters
Buyers Initials:
----------------------
LOT: RB23
Motorola's Initials: /s/ [ILLEGIBLE]
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APPROX. APPROX. A/S BASE TX/RX
COUNTY CITY CR NAME ST P/L NO. NO. CUST. NO. UNITS RENT STATION SYSTEM FREQ.
SACRAMENTO XXXXXXXXXX XXXX XXXX X0 XX 00000X 6 38 M YES NO 461.0500
SACRAMENTO XXXXXXXXXX XXXX XXXX 00 XX 00000X 3 31 M YES NO 463.2500
TOTAL NUMBER OF CR'S 2 MARKET VALUE:
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EXHIBIT A - To Offer to Buy and Xxxx of Sale Agreement
List of Community Repeaters
Buyers Initials:
--------------------
LOT RB34
Motorola's Initials: /s/ [ILLEGIBLE]
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APPROX. APPROX. AS BASE TX/RX
COUNTY CITY CR NAME ST P/L NO. NO. CUST. NO. UNITS RENT STATION SYSTEM FREQ.
XXXXXX XXXXXXXXX XXXX XXXXXXX 00 XX. 0 XX 00000X 4 37 M YES NO 463.6750
XXXXXX XXXXXXXXX XXXX XXXXXXX 00 XX. 0 XX 00000X 2 20 M YES NO 489.8375
XXXXXX VACAVILLE XXXX CENTRAL 09 CA 04570C 1 5 M YES NO 463.8250
XXXXXX XXXXXXXXX XXXX XXXXXXX 00 XX. 0 XX 00000X 3 15 M YES NO 490.2125
XXXXXX VACAVILLE XXXX SOUTH 04 CA 04707C 4 27 M YES NO 462.0250
XXXXXX VACAVILLE XXXX SOUTH 15 CA 04709C 4 31 M YES NO 484.9125
XXXXXX VACAVILLE XXXX SOUTH 17 CA 04711C 6 44 M YES NO 851.7125
XXXXXX VACAVILLE XXXX SOUTH 19 CA 04713C 6 48 M YES NO 489.4125
XXXXXX VACAVILLE XXXX SOUTH 21 CA 04715C 4 29 M YES NO 852.3125
TOTAL NUMBER OF CR'S 9 MARKET VALUE:
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EXHIBIT A - To Offer to Buy and Xxxx of Sale Agreement
List of Community Repealers
Buyers Initials: LOT: RB2
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Motorola's Initials: /s/ [ILLEGIBLE]
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APPROX. APPROX. A/S BASE TX/RX
COUNTY CITY CR NAME ST P/L NO. NO. CUST. NO. UNITS RENT STATION SYSTEM FREQ.
XXXX BANNER MTN 01 CA 04543C 4 16 MOTOROLA YES NO 462.6750
TOTAL NUMBER OF CR'S 1 MARKET VALUE: MIN.
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