CONSTRUCTION PERMITS PURCHASE AGREEMENT
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THIS CONSTRUCTION PERMITS PURCHASE AGREEMENT (this "Agreement") is made
as of October 13, 2005 between Xxxx X. Xxxxxx, an individual residing in the
State of Louisiana ("Seller") and Longfoot Communications Corp., a Delaware
corporation ("Buyer").
Recitals
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A. Seller is the permittee and owner of the following low power
television station construction permits ("Construction Permits") pursuant to
certain authorizations issued by the Federal Communications Commission (the
"FCC"):
K38IH {Facility ID Xx. 000000), Xxxxxxx, XX (File No.
BNPTTL-20000828AJK)
W51DP (Facility ID Xx. 000000), Xxxxxxxxx, XX (File Number:
BNPTTL-20000830AHQ)
K46IA (Facility ID No. 127477), Big Sky, MT (File Number:
BNPTTL-20000830AIG) A copy of the Construction Permits is attached hereto as
Exhibit A.
B. Pursuant to the terms and subject to the conditions set forth
in this Agreement, Seller desires to sell and Buyer desires to purchase and
secure the assignment of the Construction Permits. Agreement
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable considerations, the parties hereby
agree as follows:
1. SALE AND PURCHASE.
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Subject to the terms and conditions hereof, on the Closing date, Seller
shall sell, transfer, convey, assign and deliver to Buyer, free and clear of
liens, claims and encumbrances, and Buyer shall purchase the Construction
Permits).
2. NO LIABILITIES ASSUMED BY BUYER.
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Except as provided in this Agreement, no liabilities will be assumed by
Buyer, and Seller shall transfer and deliver the Asset free and clear of
obligations.
1 Exhibit 10.4
3. PURCHASE PRICE.
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A. The consideration to be paid to Seller for the transfer and
conveyance of the Construction Permits shall be the sum of Thirty-five Thousand
Dollars ($35,000) (the "Purchase Price"), payable by Buyer by wire transfer of
immediately available funds or cashier's check at Closing (defined below).
B. Within three (3) business days of the date of this Agreement,
Buyer shall deposit the sum of Eight Thousand Dollars ($7,000) (the "Deposit")
with Xxxxx Xxxx & Fielding LLP (the "Escrow Agent"), pursuant to an Escrow
Agreement (the "Escrow Agreement") of even date herewith among Buyer, Seller and
the Escrow Agent. At Closing, the Deposit shall be disbursed to Seller and
applied to the Purchase Price. The parties shall each instruct the Escrow Agent
to disburse the Deposit to the party entitled thereto and shall not, by any act
or omission, delay or prevent any such disbursement.
C. The Deposit shall be released to Seller in the event that this
Agreement is terminated due to a material breach by Buyer or Buyer's failure or
refusal to close on the Closing date, all conditions to Buyer's obligation to
close having been satisfied or waived. The parties agree that actual damages are
indeterminable or difficult to measure. Therefore, such payment to Seller shall
constitute liquidated damages as Seller's sole and exclusive remedy for such
breach. Such payment is not intended to be, and is not, a penalty for breach of
this Agreement. The Deposit shall be returned to Buyer if this Agreement is
terminated for any other reason.
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller hereby represents and warrants to Buyer as follows:
A. Seller has the power to execute, deliver and perform this
Agreement and the documents to be executed by it pursuant hereto.
B. This Agreement constitutes, and when executed and delivered at
Closing, any related documents will constitute valid and binding agreements of
Seller, enforceable in accordance with their respective terms. Neither the
execution and delivery of this Agreement and the documents contemplated hereby,
nor the consummation by Seller of the transactions contemplated hereby conflicts
with or constitutes a default under any material contract, commitment,
understanding, arrangement, agreement or restriction of any kind to which Seller
is a party or by which Seller is bound.
C. Seller is the sole and valid holder of the Construction
Permits. The Construction Permits upon Closing will not be subject to any lien,
claim or encumbrance of any kind.
D. There are no claims, actions, suits, proceedings or
investigations pending or, to Seller's knowledge, threatened against, or
otherwise affecting the transactions contemplated hereby
2 Exhibit 10.4
at law or in equity or before any federal, state, municipal or other
governmental authority.
E. Seller is in compliance in all material respects with all
rules and regulations of the FCC and any other pertinent governmental
authorities with respect to the Construction Permits. Seller has no knowledge of
any non-compliance with any applicable laws, rules or regulations relating in
any material respect to the operation and conduct of the business of Seller with
respect to the Construction Permits.
5. REPRESENTATIONS AND WARRANTIES OF BUYER.
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Buyer hereby represents and warrants to Seller as follows:
A. Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware and is authorized to do
business in the state of California. Buyer has the power to execute, deliver and
perform this Agreement and the documents to be executed by it pursuant hereto.
B. The execution, delivery and performance of this Agreement and
the documents to be executed pursuant hereto has been duly authorized by Buyer,
and prior to Closing, Buyer shall deliver to Seller a true and correct copy of
such authorization duly and validly adopted by Buyer (which authorization shall
not have been modified, revoked or rescinded in any respect prior to and will be
in full force and effect at Closing).
C. This Agreement constitutes, and when executed and delivered at
Closing, any related documents will constitute valid and binding agreements of
Buyer, enforceable in accordance with their respective terms. Neither the
execution and delivery of this Agreement and the documents contemplated hereby,
nor the consummation by Buyer of the transactions contemplated hereby conflicts
with or constitutes a default under any governing documents of Buyer or any
other material contract, commitment, understanding, arrangement, agreement or
restriction of any kind to which Buyer is a party or by which Buyer is bound.
D. Buyer is qualified in accordance with the rules and
regulations of the FCC and the Communications Act of 1934, as amended, to
acquire the Construction Permits and, between the date of this Agreement and
Closing, will take no action that would cause it not to be qualified to acquire
the Construction Permits.
E. There are no claims, actions, suits, proceedings or
investigations pending or, to Buyer's knowledge, threatened against, or
otherwise affecting the transactions contemplated hereby at law or in equity or
before any federal, state, municipal or other governmental authority.
F. Buyer has involved no broker in this transaction. Seller shall
not be subject to a finder's fee or other such payment in respect to this
purchase as a result of any acts of Buyer.
3 Exhibit 10.4
G. This transaction is not contingent on Buyer's ability to
secure appropriate financing.
6. FCC APPLICATION.
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Seller and Buyer each shall use its best efforts to obtain all
necessary consents and approvals from any governmental agency, third party or
other entity to the consummation of the transaction contemplated hereby and to
the assignment of the Construction Permits to Buyer. Within five (5) business
days of the date of this Agreement, the parties shall file with the FCC an
application for consent to the assignment of the Construction Permits from
Seller to Buyer. Each party shall bear its own costs and expenses (including the
fees and disbursements of its counsel) in connection with the preparation of the
portion of such application to be prepared by it and in connection with the
processing of the application. All filing fees (if any) paid to the FCC shall be
borne equally by Buyer and Seller. Seller and Buyer shall diligently prosecute
such FCC assignment application, promptly provide the other with a copy of any
pleading, order or other document served on it relating to such application and
furnish all information required by the FCC with respect to such application.
7. CLOSING CONDITIONS.
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All obligations of Buyer and Seller hereunder are subject to the
accuracy of the representations and warranties of the other party as of the
Closing date and to fulfillment by the other party of each of the following
conditions at or prior to Closing. If a condition requires performance by a
party, the other party may waive compliance with such condition in writing at or
prior to Closing, except that the condition of FCC approval may not be waived.
Each party shall use its best efforts to fulfill each of the conditions
applicable to it.
Following are the conditions precedent to Closing:
A. Seller SHALL deliver to Buyer an Assignment of the
Construction Permits and any other instruments of conveyance, transfer and
assignment as shall be reasonably necessary to vest in Buyer good and marketable
title in and to the Construction Permits free and clear of all liens, claims and
encumbrances, except as set forth in this Agreement or otherwise accepted in
writing by Buyer.
B. The FCC shall have granted (by initial order) its consent to
assignment of the Construction Permits from Seller to Buyer.
C. Buyer shall pay the Purchase Price in the manner described
herein.
D. The representations and warranties of Seller and Buyer
contained herein shall be true and correct in all material respects on the date
of Closing.
4 Exhibit 10.4
E. Both parties shall have performed in all material respects all
of their respective obligations and agreements and complied with all the
covenants and conditions contained in this Agreement to be performed or complied
with on or before the date of Closing.
8. CLOSING.
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The consummation of the sale and purchase of the Construction Permits
pursuant to this Agreement (the "Closing") shall take place within ten (10) days
after the date the FCC has granted its consent to assignment of the Construction
Permits from Seller to Buyer and such grant has become Final (defined below),
or, at Buyer's option, within ten (10) business days after the date the FCC has
granted such consent by initial order. If such FCC consents have not been
obtained within six (6) months of the date of this Agreement, then either party
shall have the right to unilaterally terminate this Agreement by giving written
notice of such termination to the other party. Notwithstanding the foregoing, a
party may not terminate this Agreement under this Section if such party is
responsible for the failure of the FCC to approve the assignment application
within said six (6) month period. As used herein, "Final" means that action
shall have been taken by the FCC (including action duly taken by the FCC's
staff, pursuant to delegated authority) which shall not have been reversed,
stayed, enjoined, set aside, annulled or suspended; with respect to which no
timely request for stay, petition for rehearing, appeal or certiorari or sua
sponte action of the FCC with comparable effect shall be pending; and as to
which the time for filing any such request, petition, appeal, certiorari or for
the taking of any such sua sponte action by the FCC shall have expired or
otherwise terminated.
9. ENTIRE AGREEMENT.
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This Agreement, including any exhibits hereto, constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified, amended or terminated except by written agreement signed by all the
parties hereto.
10. GOVERNING LAW.
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This Agreement shall be governed, construed, and enforced in accordance
with the laws of the State of California without giving effect to the choice of
law provisions thereof.
11. NOTICES.
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Any notice pursuant to this Agreement shall be in writing and shall be
deemed delivered on the date of personal delivery or confirmed facsimile
transmission or confirmed delivery by a nationally recognized overnight courier
service, or on the third day after prepaid mailing by certified U.S. mail,
return receipt requested, and shall be addressed as follows (or to such other
address as any party may request by written notice):
5 Exhibit 10.4
To Seller: Xxxx X. Xxxxxx
000 Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxx, XX 00000
Facsimile No.: 318.992.7676
Copy to: Xxxxx Xxxx & Xxxxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxx/Xxxxxxx X. Xxxxxxxxx
Facsimile No.: 202.719.7049
To Buyer: Longfoot Communications Corp.
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile No.: 323.822.0019
Copy to: Xxx X. Xxxxxx
The Law Office of Xxx X. Xxxxxx
0000 Xxxxx 00" Xxxx
Xxxxxxxxx, XX 00000
Facsimile No.: 703.243.8692
12. ASSIGNMENT.
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This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of Seller and Buyer. Notwithstanding the foregoing, the
rights under this Agreement may not be assigned by, either party without the
prior written consent of the other party. No assignment shall relieve a party of
its obligations under this Agreement.
13. COUNTERPARTS.
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This Agreement may be signed in any number of counterparts with the
same effect as if the signature on each such counterpart were upon the same
instrument.
14. TIME IS OF THE ESSENCE.
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Time is of the essence for this Agreement.
15. NON-DISCLOSURE.
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If for any reason the sale of Asset pursuant to this Agreement does not
close, Buyer will not disclose to third parties any confidential information
received from Seller in the course of investigating, negotiating and performing
the transactions contemplated by this Agreement.
6 Exhibit 10.4
SIGNATURE PAGE TO CONSTRUCTION PERMITS PURCHASE AGREEMENT
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT: AS
OF THE DAY AND YEAR FIRST WRITTEN ABOVE.
SELLER: Xxxx X. Xxxxxx, an individual
BUYER: LONGFOOT COMMUNICATIONS CORP.
/s/ XXXXXX X.XXXXX
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XXXXXX X.XXXXX
Title: PRESIDENT
7 Exhibit 10.4
EXHIBIT A
Attach copy of Construction Permits
8 Exhibit 10.4
