Past purchase by Beebers, Very interesting to hear what went down during and after this transaction. The Beebers needs to remember he has made a past that left tracks! There seems to be people in Florida that have a few issues with him as well.The Beebers might need that Gold mine as a housing unit LOL LOL LOL!
Past dealings, These people just LOVE our Beebers!
Asset Purchase Agreement
This Agreement made and entered into this XX day of XXXXXXXX, 2003, by and between, Wesco Enterprises, Inc (hereinafter referred to as (“Seller”); and John H. Beebe (hereinafter referred to as “Buyer”)
WHEREAS, Buyer and Seller have agreed that Seller shall assign and Buyer shall acquire all assets of radio stations WGTX(AM), DeFuniak Springs, Florida (the “Station”), on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and convenants contained herein, the parties intending to be legally bound, agree as follows:
1. ASSETS TO BE SOLD: On the Closing Date as defined herein, Seller shall sell to Buyer, and Buyer shall purchase from Seller, all assets of the Station. A list of the tangible assets of the Stations is attached as Exhibit A, (all items referred to in Section 1 and its subsections collectively referred to as the “Assets”).
1.1 Intangible Assets: All of Seller’s rights and interest in and to the call letters, trademarks, trade names, service marks, franchises, jingles, privileges and any other similar rights as used in the conduct of the business and operations of the Station together with the good will of the business.
1.2 Authorizations: All of Seller’s rights and interest in and to the FCC licensees, permits and other authorizations, and to the extent that other authorizations are assignable or transferable, licenses, permits and other authorizations issued to it by any governmental authority and used or useful in the conduct of business and operations of the Station (the “Authorizations”) A copy of each Authorization is attached as Exhibit B.
1.3 Contracts: All rights and obligations of the Station maturing after the closing date in and under all contracts, agreements, leases, commitments, and understandings of Seller concerning the Station (the “Contracts”), to the extent such rights and obligations are assignable or transferable, and to the extent Buyer agrees to accept assignment of such Contracts. Copies of contracts to be assigned or assumed by Buyer have been provided to Buyer prior to the execution of this Agreement and a list of the Contracts to be assumed by Buyer is attached hereto as Exhibit C.
1.4 Books and Records: All original books, files, public files, records and logs relating to the conduct of the business and operations of the Station all of the foregoing shall thereafter be available for inspection and duplication by Seller upon Seller’s request during normal business hours to permit to examine or duplicate such records until three (3) years after closing and none shall be disposed of until after such three-year period].
1.5 Real Estate: All interests in real property relating to the Station as described and evidenced by a deed or other recording instrument in Exhibit D, together with any improvements thereon (including fixtures). Exhibit D will be provided to Buyer upon execution of this Agreement;
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2. ASSUMPTION OF SELLER’S LIABILITY BY BUYER: Buyer will assume, and hold Seller harmless from all rights and obligations of Seller concerning the Station, maturing on or after the Closing Date, in and under all contracts, agreements, leases, commitments, understandings right and interests of Seller relating to the conduct of the business and operations of the Station listed in Exhibit C. Buyer agrees to honor all agreements for the sale of broadcast time on the Station, whether for cash, barter or trade, made by Seller prior to the Closing Date, provided that Buyer shall be entitled to the proceeds of all advertisement (including the benefits of any barter agreements) run on the Station on and after the Closing Date..
3. EXCLUDED ASSETS: The Assets to be sold shall not include cash-on-hand or bank deposits.
4. CONSIDERATION: The price to be paid by Buyer for the purchase of the Station’s Assets shall be $220,000.00.(two hundred and twenty thousand dollars) to be delivered to Seller as follows:
(a) $23,500.00 to be placed in escrow immediately (the “Escrow Deposit”). Allan Ramey, Esq., will be escrow agent.
(b) $196,500.00 to be delivered into escrow in immediately available funds at time of closing (the “Closing Escrow Payment”). The Escrow Deposit and Closing Escrow Payment are collectively referred to as the “Escrow Funds”),
5. ALLOCATION OF PURCHASE PRICE:. The Buyer and Seller agree that the fair market values of the Assets, along with the aggregate portion of the Purchase Price to be paid by Buyer for the Assets, is agreed to and shall be allocated as follows:
(a) $150,000.00 for license, equipment, and goodwill;
(b) $40,000.00 for real estate; and
(c) $30,000.00 non-compete agreement with Sara Comander and Wesco Enterprises Inc.
6 ACCOUNTS RECEIVABLE: Seller shall keep all accounts receivable, and shall provide a list of outstanding receivables to Buyer at Closing. For advertising clients that have balances due with Seller as of the closing date, Buyer and Seller shall cooperate in collections from such clients, and payments from such clients shall first be applied to balances due and owing to Seller until Seller’s balance is paid, then to balances due and owing to Buyer.
7. CLOSING DATE, TIME AND PLACE: The closing of this Agreement shall take place at a mutually agreed upon place,10:00 a.m. on a date six business days after the date of FCC Consent. The Escrow Agent shall release $75,000 of the Escrow Funds to the Seller on the date of closing, and the balance on the day the FCC Consent becomes a Final Order. For purposes of this Agreement, Final Order shall mean an action by the FCC (i) which has not been vacated, reversed, stayed, set aside, annulled or suspended, (ii) with respect to which no timely appeal, request for stay or petition for rehearing reconsideration or review by any party or by the FCC on its own motion, is pending, and (iii) as to which the time for filing any such appeal, request, petition, or similar document or for the reconsideration or review by the FCC on its own motion 2
under the Communications Act of 1934, as amended, and the rules and regulations of the Commission, has expired.
8. SELLER’S REPRESENTATIONS AND WARRANTIES: Seller represents and warrants to Buyer as follows:
8.1 Organization and Standing: Seller Wesco Enterprises, Inc. is a corporation in good standing under the laws of the State of Florida. Seller has the requisite power and authority to own and operate the Station and carry on the business of the Station as now being conducted and as proposed to be conducted by it between the date hereof and the Closing Date.
8.2 Authorization and Binding Obligation: Seller has the requisite power and authority to enter into and perform this Agreement and the transactions contemplated hereby. The execution, delivery and performance of this Agreement by the Seller have been duly and validly authorized by all necessary corporate action on the Seller’s part. This agreement has been duly signed and delivered by Seller and constitutes its valid and binding obligation enforceable in accordance with its terms.
8.3 Absence of Conflicting Agreements or Required Consents: Except as set forth in Section 11 hereof with respect to governmental consents, consents that may be required to assign and assume contracts, Seller’s execution, delivery and performance of this Agreement:
8.3.1 Does not require the consent of any third party;
8.3.2 Will not violate any applicable law, judgment, order, injunction, decree, rule, regulation or ruling of any governmental authority;
8.3.3 Will not, either alone or with the giving of notice or the passage of time or both, conflict with, constitute grounds for termination of, or result in a breach of the terms, conditions, or provisions of, or constitute a default under any agreement, instrument, trust instrument or permit individually or in the aggregate material to the transactions contemplated hereby and to which they are not subject; and
8.3.4 Will not result in the creation of any lien, charge or encumbrance on any of the Seller’s assets.
8.4 Liens. Seller agrees that the Assets conveyed to Buyer at the closing will be conveyed to Buyer free and clear of all liens, charges and encumbrances whatsoever.
9. QUALIFICATIONS: Buyer is legally, technically and financially qualified under the Communications Act of 1934, as amended, and under the Rules and Regulations of the FCC promulgated thereunder, to become holder of the Stations’ authorizations and is financially qualified to consummate this agreement on the terms and conditions contained within.
10. COVENANTS: The Seller and Buyer each covenant, as applicable, the following:
10.1 Control of Station: Buyer shall not, prior to FCC consent, directly or indirectly control, supervise or direct the operations of the Station. It is expressly understood that the ultimate responsibility, control and supervision of all operations of Station including programs, employees and policies, is the sole responsibility of the Seller until the closing date.
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10.2 Cooperation: Seller and Buyer shall cooperate fully with each other in taking any action, including actions to obtain required consent of any governmental agency or of any third party, necessary or helpful, to accomplish the transactions contemplated by the Agreement.
10.3 Further Assistance: Seller and Buyer shall cooperate and take such actions and execute such documents at the closing or subsequently as may be reasonable requested by the other in order to carry out the provisions and purposes of the Agreement.
11. GOVERNMENTAL CONSENTS: The assignment of the Stations authorizations, including the Station’s FCC license, is subject to the prior consent and approval of the FCC (“FCC Consent”) and is expressly conditioned upon the grant of the FCC consent. No later than five (5) days after the execution of the Agreement, each of the Buyer and Seller will be ready, willing and able to file their respective portions of an FCC Form 314 application seeking FCC Consent to the assignment of the Station’s FCC license. Promptly following the execution of this Agreement, the parties will join together in filing with the appropriate government authorities any other requests for approval or waiver that are required in connection the transactions contemplated hereby, and shall jointly, diligently and expeditiously cooperate fully in the prosecution of such requests for approval or waiver and in all proceedings necessary to secure such approvals or waivers.
12. EXPENSES AND ADJUSTMENTS: The expenses of this transaction and the income and the expenses of the operation of the station shall be paid as follows:
12.1 Transaction Costs: The Buyer shall be solely responsible for paying the FCC filing fee. Buyer and Seller shall each bear responsibility for their own legal fees and expenses incurred in the filing and prosecution of the FCC application.
12.2 Operation of the Station: The operation of the Station and the income and expenses attributable thereto up until 11:59 p.m. on the day preceding the Closing Date shall be for the account of the Seller and thereafter for the account of the Buyer. At closing, the following shall be adjusted and apportioned between the Seller and Buyer:
12.2.1 prepayments and accrued payments under all Contracts to be assigned and assumed pursuant to Section 1.3;
12.2.2 deposits placed with telephone and utility companies, and any advance rents or deposits with service companies or suppliers; and
12.2.3 all other taxes, charges, utility bills, and expenses attributable to the operation of the Station prior to closing.
12.3 Closing Adjustments: In the event, closing adjustments are in favor of the Seller, the same shall be paid at closing by Buyer. In the event that closing adjustments are in favor of the Buyer, the same shall be paid at closing by Seller. In the event it is impractical or impossible to compute the amounts of adjustments at closing, the amount shall be computed and paid on a date no later than 30 days following the Closing Date.
13. RISK OF LOSS: The risk of any loss, damage or destruction of any of the Station’s assets to be transferred hereunder from fire or other casualty or cause shall be borne by Seller at all times prior to 11:59 p.m. on the day preceding the closing date. Upon the occurrence of any loss or damage to any material assets to be transferred hereunder, as a result of fire, casualty or
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other causes prior to closing, Seller shall notify Buyer of same in writing immediately stating with particularity of the extent of such loss or damage incurred, the cause thereof if know and the extent to which restoration, replacement and repair of the Stations’ assets lost or destroyed will be reimbursed under any insurance policy with respect thereto. In the event the loss or damage exceeds Ten Thousand Dollars ($10,000.00) and the property cannot substantially be repaired, restored or replaced with property of a comparable quality or utility within thirty (30) days, Buyer shall have the option exercisable within ten (10) days after receipt of notice from Seller that repair or replacement is not possible, to (a) terminate this Agreement and have the escrow deposit returned; or (b) elect to consummate the Agreement and accept the property in its '‘then'’condition, in which event Buyer shall have as recourse all rights under any insurance claim covering the loss. If Buyer elects to consummate the Agreement, Seller will have no further liability to Buyer except for the reimbursement to Buyer for any deductible on insurance policies.
14. ATTORNEY’S FEES If any party defaults in the performance of any of the terms or conditions of this Agreement, which default results in the filing of a lawsuit, the prevailing party in such lawsuit shall be entitled to reasonable attorney’s fees and costs as determined by the court.
15. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND CONVENANTS: The representations, warranties and covenants of Seller contained in this Agreement do not survive closing. The closing of the transaction will constitute an acceptance by the Buyer of the Seller’s complete and full performance of its obligations under this Agreement and at the Closing the Buyer will release and forever discharge the Seller of and from all manner of debts, dues, sum and sums of money, accounts, reckoning, claims and demands whatsoever, in law or in equity, for or by reason of, or on account of, the performance or nonperformance of the Seller under this Agreement. Following the closing, there will not be any recourse by the Buyer against the Seller for any breach of this Agreement or breach of any warranty, representation or covenant contained in the Agreement, any deficiency or defect in any asset, or for any other claim based upon the performance or the lack of performance of the Seller in the sale of the Station.
16. INDEMNIFICATION:
16.1 Buyers Indemnification Of Seller: Buyer hereby agrees to indemnify and hold harmless Seller for a period of three (3) years from the closing date from and against any and all losses, damages, costs, expenses, claims (including reasonable attorneys’ fees), and liabilities of Seller arising from or relating to: (1) liabilities of the Station assumed by Buyer arising after closing; and (2) under facts or circumstances occurring subsequent to 11:59 p.m. on the day preceding the closing date. In the event that any claim is asserted against Seller, which, if established, would require indemnification under the terms of this section, then Seller shall promptly give Buyer written notice of such claim, and Buyer shall, within ten (10) days after said written notice, notify Seller in writing, of Buyer’s decision whether or not to defend against the asserted claim. In the event, a claim is asserted and Buyer elects not to defend against such claim or fails to notify Seller within the time provided, the Seller may defend against the claim, and Buyer shall be bound by whatever result is obtained by Seller.
16.2 Sellers Indemnification Of Buyer: Seller hereby agrees to indemnify and hold harmless Buyer for a period of three (3) years from the closing date from and against any and all losses, damages, costs, expenses, claims (including reasonable attorneys’ fees), and liabilities of Buyer arising from or relating to: (1) liabilities of the Station arising prior to closing; and (2) under
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facts or circumstances occurring prior to 11:59 p.m. on the day preceding the closing date. In the event that any claim is asserted against Buyer, which, if established, would require indemnification under the terms of this section, then Buyer shall promptly give Seller written notice of such claim, and Seller shall, within ten (10) days after said written notice, notify Buyer in writing, of Seller’s decision whether or not to defend against the asserted claim. In the event, a claim is asserted and Seller elects not to defend against such claim or fails to notify Buyer within the time provided, the Buyer may defend against the claim, and Seller shall be bound by whatever result is obtained by Buyer.
17. DEFAULT BY BUYER; LIQUIDATED DAMAGES: Buyer and Seller agree that if this Agreement is terminated due to Buyer’s breach or default, Seller shall be entitled to retain the Escrow Funds as liquidated damages. Seller acknowledges that its sole and exclusive relief against Buyer for failure to consummate this Agreement shall be its acceptance of the Escrow Funds as liquidated damages. The parties agree that the amount of the Escrow Funds represents Buyer and Seller’s reasonable estimate of actual damages for Buyer’s failure to consummate and does not constitute a penalty.
18. COMMISSION OR FINDER’S FEE: Seller agrees to be solely responsible for brokers’ fees to BuySellRadio Online.
19. SUCCESSOR AND ASSIGNS: This agreement shall be binding upon, and inure to the benefit of, the respective permitted successors and assigns of the parties.
20. CONSTRUCTION; This Agreement shall be construed and enforced in accordance with the substantive laws of the State of Florida without reference to the principles of conflicts of law in effect in such state.
21. NOTICES: Any notice, consent, waiver or other communications hereunder shall be sent by certified or registered mail, return receipt requested, postage prepaid, or USPS Express Air Service, overnight air courier service or same day delivery service, to the address specified below (or at such other address which party shall specify to the other party in accordance herewith):
(a) If to Seller:
Wesco Enterprises, Inc.
PO Box 90
DeFuniak Springs, FL 32435
With a copy that shall not constitute notice to:
(b) If to Buyer:
John H. Beebe
166 Acacia Street
Santa Rosa Beach, Florida 32459
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With a copy that shall not constitute notice to:
Scott C. Cinnamon
Law Offices of Scott C. Cinnamon, PLLC
1090 Vermont Ave., N.W.
Suite 800, # 144
Washington, D.C. 20005
Notice shall be deemed to have been given three (3) business days after mailing if sent by registered or certified mail, or on the next business day if sent by UPS Express Mail, overnight air courier or same day delivery service.
22. MULTIPLE COUNTERPARTS: This agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In addition, this Agreement may contain more than one counterpart of the signature page and this Agreement may be signed by the affixing of the signature of each party to one of such counterpart signature pages; all of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.
23. ENTIRE AGREEMENT: This agreement represents the entire understanding of the parties hereto, supersedes all other and prior memoranda and agreements between the parties here to and my not be modified or amended, except by a written instrument signed by each of the parties hereto designating specifically the terms and provisions so modified and amended.
24. CAPTIONS: The sections, captions and headings in this Agreement are for convenience and reference purposes only and should not affect in any way the meaning or interpretation of this Agreement.
25. EXHIBITS AND SCHEDULES: The Exhibits and Schedules are hereby incorporated by reference into and made part of this Agreement.
26. SECTION 73.1150 STATEMENT: Following the closing anticipated herein, Seller has retained no rights of reversion of the Station’s Licenses, no right to the reassignment of the Station’s Licenses in the future, and has not reserved the right to use the facilities of the Stations in the future for any reason whatsoever
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and year first above written.
Wesco Enterprises, Inc. ,(Seller)
__________________________________________________________________________
By: Sara Commander, President
John H. Beebe (Buyer)
