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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 ($8,000) Dollars ("Purchase Price"). Within seven (7)
days after the Agreement Date, Buyer shall pay Motorola a deposit of
Twenty-Five Percent (25%), ($2,000.00) 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 ($6,000) 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: Oct. 13, 1994
---------------------- ---------------------
By: /s/ XXXXX X. XXXXXX By: /s/ XXX XXXXXX
----------------------------------- ----------------------------------
Xxxxx X. Xxxxxx Xxx Xxxxxx, V.P., General Manager
U. S. Domestic Network Services
Division
Title: President
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
BUYERS INITIALS: /s/ DAT
MOTOROLA'S INITIALS:
Remaining UHF C/R's
APPROXIMATE A/S
ST SITE C/R NO. P/L NO. USERS UNITS FREQUENCY LATITUDE LONGITUDE LEASE TX/RX
---- ----- ---- ----- ----- ---------- -------- --------- ----- -----
MO Mt. Xxxxxx 1 1 02444C 6 40 463.575 37-06-47 93-46-55 Direct Yes
IL Standard Oil 1 202 00542C 2 12 461.575 41-53-30 87-37-15 Motorola No
MN Waltham 1 2077 08042C 2 6 464.700 43-49-16 92-52-37 Motorola No
IL Sears 1 112 00432C 1 36 464.700 41-52-44 87-38-10 Motorola No
4 TOTAL 11 94
Market Value $12,000
