01/17/2000
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ASSET PURCHASE AGREEMENT
Masada Media, Inc.
THIS AGREEMENT, made and entered into this /1'# day of J fJ- N ' ,2000
between MONROE COUNTY, a political subdivision of the State of Florida, whose address is Public
Service Building, 5100 College Road, Key West, FL 33040 ("Seller"), and MASADA MEDIA, INC.,
("Buyer"), through Keith Shwayder, whose address is PO Box 4197, Englewood, CO 80155-4197.
RECITALS:
A. Seller holds a construction permit issued by the Federal Communications Commission
(the "Commission" or the "FCC") for authority to construct and operate the Low Power Television
Station (the "FCC Authorizations") on Channel 59, at Matecumbe, Monroe County, Florida, with the
call sign W59AJ, (the "Station"); and
B. Seller desires to sell and/or assign, and Buyer desires to purchase and/or acquire said
construction permit, as hereinafter set forth; and
FCC.
C. Said FCC Authorizations may not be assigned without the prior authorization of the
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
representations, warranties and covenants herein contained, the parties, intending to be legally
bound, subject to the prior approval of the Commission and subject to the terms and conditions set
forth herein, mutually agree as follows: ,. C)-n,
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1. Definitions. As used herein, unless otherwise defined, shall have.?Jle:meanin~r
meanings assigned to them as described on Exhibit 1, hereto. ~~~ ~ ~
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SECTION 1
DEFINITIONS
SECTION 2
ASSETS TO BE SOLD
2.1 Included Assets. Subject to FCC approval and the terms and conditions described
herein, Seller agrees to sell, assign, transfer, convey, set over, and deliver to Buyer on the Closing
Date, and Buyer shall purChase and/or accept assignment of, all the assets owned by the Seller and
used and/or useful in the conduct of the business and operations of the Station, including all local,
state, and federal permits and authorizations identified above in paragraph A, any contracts,
agreements and leases listed on Exhibit 2, and the equipment listed on Exhibit 3 (hereinafter
collectively the "Assets"), incorporated herein by reference.
2.2 Authorizations The Federal Communications Commission Authorization.
2.3 Intangibles. All right, title and interest of Seller in and to the call letters W59AJ,
together with other intangible property of Seller used or useful in the operation of or otherwise
pertaining to the Station, such as goodwill, trade names, etc. (herein collectively the "intangibles").
2.4 Transfer of Assets. All of the Assets shall be transferred to Buyer as is and where
is, free and clear of all debts, liens, security interests, mortgages, trusts, claims, or any other
liabilities or encumbrances whatsoever.
2.5 Assumption of Liabilities. Except as set forth in this agreement, Buyer expressly
does not, and shall not assume or be deemed to assume, under this Agreement, or otherwise by
reason of the transactions contemplated hereby, any liabilities, obligations or commitments of Seller
of any nature whatsoever.
SECTION 3
PURCHASE PRICE
3.1 Purchase Price. In consideration of Seller's performance of this Agreement, and the
sale, assignment, transfer, conveyance, setting over, and delivery of the Assets as defined
hereinabove to Buyer, the purchase price to be paid by Buyer for the Assets to the sold and assigned
hereunder shall be the sum of TEN THOUSAND DOLLARS ($10,000.00) or such lesser amount as
the FCC may approve (the "Purchase Price"). At Closing, Buyer shall pay to Seller the Purchase
Price, in immediately available funds.
SECTION 4
PRORATIONS
4.1 All taxes and assessments, utility bills and other ongoing costs of usual operation of
station shall be prorated to the date of Closing. Sales or use taxes, transfer taxes, any costs of
recordation, filing fees, and similar fees shall be paid by Buyer. FCC filing fees for each assignment
application shall be paid by Buyer.
SECTION 5
COMMISSION APPLICATION
5.1 Commission Consent. Consummation of the purchase and sale provided for herein
and the performance of the obligations of Seller and Buyer under this Agreement are subject to the
condition that the Commission shall have given its consent in writing, without any condition adverse
to Buyer, to assignment of the Commission Authorizations to Buyer.
5.2 Application for Commission Consent. Seller and Buyer agree to proceed
expeditiously and with due diligence, to use their best efforts and to cooperate with each other in
seeking the Commission's approval of the transactions contemplated hereunder. Within SEVEN (7)
business days after the execution of this Agreement, Buyer shall cause to be filed with the
Commission the Assignment Application and all information, data, statements, exhibits and other
materials necessary and proper in connection with such Assignment Application, including a copy of
this Agreement. Seller agrees to timely provide Buyer with all information, data, statement, exhibits
and other materials necessary and proper in connection with such Assignment Application. Each
party further agrees expeditiously to prepare and to provide information and/or amendments to the
Assignment Application whenever such information and/or amendments are required by the
Commission or its rules.
5.2.1 Application Expenses. Buyer and Seller each will be responSible for its own
expenses incurred in the preparation, filing and prosecution of the Assignment Application before the
Commission. Buyer will pay any application fees due to the Commission.
5.3 Public Notices. Seller shall, at his expense, give any public notice of the filing of the
Agreement as may be required by the Commission's rules.
SECTION 6
REPRESENTATIONS AND WARRANTIES OF THE SELLER
6.1 Preamble. Seller hereby makes the representations and warranties set forth I this
Section 6, which shall continue to and shall be deemed to have been made again at the Closing, and
shall survive the Closing for a period of one (1) year. The truth and accuracy of all such covenants,
representations and warranties shall continue as a condition precedent to the obligations of Buyer
hereunder.
6.1.1 Seller's Authority. Seller has the full power and authority to construct and
operate the Station in accordance with the construction permit. Seller has full power and authority
to enter into this Agreement and to authorize the execution of all Seller's Closing Documents.
6.1.2 Binding Agreement. This Agreement has been duly executed and delivered
by Seller and constitutes a valid and binding obligation of Seller enforceable against Seller in
accordance with the terms of this Agreement. Such execution, delivery and performance does not
violate any contract or other commitment to which Seller is party or any law, judgment, order,
injunction, decree, rule, regulation, or ruling of any governmental authority, and will not result in the
creation or imposition of any lien, charge, security interest, or encumbrance of any nature
whatsoever upon any of the Assets.
6.1.3 No Litigation. Seller is not currently involved in any litigation or bankruptcy
proceeding which would prohibit him from entering into this Agreement.
SECTION 7
WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
7.1 Preamble. Buyer hereby makes the representations and warranties set out in this
Section 7, which representations and warranties shall continue to and shall be deemed to have been
made again on the Closing Date, and shall survive the Closing for a period of ONE (1) year.
7.1.1 Authority. Buyer has full corporate power and authority to acquire control of
the Station pursuant to this Agreement and Buyer has full power and authority to carry out all of the
terms and conditions of this Agreement. The execution, delivery and performance of this Agreement
and this Buyer's Closing Documents will be authorized by all necessary corporate actions on the part
of the Buyer.
SECTION 8
CONDITIONS FOR CLOSING
8.1 Conditions Precedent to Obligations of Buyer. The obligations of the Buyer under
this Agreement are subject to the satisfaction of each of the following express conditions precedent
(provided that Buyer may, at its election, waive any of such conditions on the Closing Date,
notwithstanding that such condition is not fulfilled) on the Closing Date.
8.1.1 The Final Order of the Commission shall be in effect.
8.1.2 Each of the Seller's representations and warranties contained in this Agreement
or in any exhibit, certificate or document delivered pursuant to the provisions hereof, shall be true
and correct in all material respects at and as of the Closing Date with the same force and effect as if
each such representation or warranty were made at and as of such time.
8.1.3 Seller shall be the holder of the Commission Authorization and said
Authorization shall be valid and in good standing with the Commission.
8.1.4 There shall be no outstanding mortgages, liens, security agreements, or other
charges and encumbrances on the Assets.
8.2 Conditions Precedent to Obligations of Seller. The performance of the obligations
of the Seller under this Agreement is subject to the satisfaction of each of the following express
conditions precedent (provided that Seller may, at its election, waive any of such conditions at
Closing, notwithstanding that such condition is not fulfilled on the Closing Date).
8.2.1 The Final Order of the Commission authorizing the sale of the construction
permit to Buyer shall be in effect.
8.2.2 Each of Buyer's representations and warranties contained in this Agreement or
in any certificate or document delivered pursuant to the provisions hereof, shall be true in all
material respects at and as of the Closing Date as though each such representations or warranty was
made at and as of such time.
8.2.3 Buyer shall have taken all the necessary corporate action to authorize and to
consummate this transaction.
8.2.4 Buyer shall deliver to Seller on the Closing Date the Purchase Price required to
be delivered by Buyer pursuant to Section 3.1 hereof.
SECTION 9
SELLER'S OBLIGATIONS AT CLOSING
9.1 At the Closing, Seller shall deliver to Buyer the following documents (referred to
collectively as the "Seller's Closing Documents"):
9.1.1 Instruments of Conveyance. All deeds, bill of sale, assignments and other
instruments of conveyance and transfer effecting the sale, transfer, assignment and conveyance of
the Assets.
SECTION 10
INDEMNIFICATIONS
10.1 Seller's Indemnities. Subject to the limits of Florida Statutes Sec. 768.28, Seller
shall indemnify, defend and hold harmless Buyer from and against any and all loss, cost, liability,
damage and expense (including legal and other expenses incident thereto) of every kind, nature or
description, arising out of (a) the breach of any representation or warranty of Seller set forth in this
Agreement and (b) the breach of any of his covenants or other agreements contained in or arising
out of this Agreement or the transactions contemplated hereby.
10.2 Buyer's Indemnities. Buyer shall indemnify, defend and hold harmless Seller from
and against any and all loss, cost, liability, damage and expense (including legal and other expenses
incident thereto) of every kind, nature or description, arising out of (a) the breach of any
representation or warranty of Buyer set forth in this Agreement and (b) the breach of any of his
covenants or other agreements contained in or arising out of this Agreement or the transactions
contemplated hereby.
10.3 Notice of Claim. Buyer or Seller, upon discovery of the breach of any of the
representations, warranties or covenants of the other under this Agreement, shall give each to the
other prompt written notice of the discovery of such breach, if any action, suite, or proceeding shall
be commenced against, or any claim or demand be asserted against Buyer or Seller, as the case
may be, in respect of which such party proposes to seek indemnification from the other under this
Section 10, then such party (hereinafter the "Claimant") shall notify the party from whom
indemnification is sought (hereinafter the "Indemnifying Party") to that effect in writing with
reasonable promptness.
10.4 Limitation. No party shall be entitled to indemnification hereunder with respect to
the breach of any representation, warranty or covenant contained herein unless such claim for
indemnification is asserted in writing to the party from whom indemnification is sought within ONE
(1) year after the Closing Date.
SECTION 11
TERMINATION RIGHTS
11.1 This Agreement may be terminated by either Buyer or Seller, if not then in material
default, upon written notice to the other upon the occurrence of any of the following: (i) if the
purchase of the Assets by Buyer pursuant to this Agreement shall not have been closed within one
year of the date of the Public Notice of the acceptance for filing of the Application for Assignment
with the FCC; (ii) if there shall be in effect on the Closing Date any judgment, decree or order that
would prevent or make unlawful the closing of this Agreement; (iii) if Seller files any bankruptcy
petition or seeks relief or protection under any insolvency law either directly or indirectly.
SECTION 12
DEFAULT
12.1 Buyer's Default. In the event that the Buyer fails or is unable to consummate the
transactions contemplated by this Agreement on the Closing Date for any reason other than a
material breach by Seller of the terms, provisions, covenants, warranties, representations, or
conditions contained herein, Seller shall have the right to terminate this Agreement.
12.2 Seller's Default. If Seller fails to consummate the transactions contemplated by this
Agreement on the Closing Date and such failure constitutes a material breach by Seller of the terms,
provisions, covenants, warranties, representations, or conditions contained herein, and Buyer is not
in default, Buyer shall, at its election, be entitled to terminate this Agreement, or to institute an
action for compensatory damages or specific performance. The parties hereto agree that the assets
and Stations Assets under this Agreement without the necessity of posting any bond or other
security, and the Seller hereby waives the defense in any such suit that Buyer has an adequate
remedy at law and agrees not to interpose any opposition, legal or otherwise, as to the propriety of
specific performance as a remedy.
SECTION 13
MISCELLANEOUS GOVERNING PROVISIONS
13.1 Governing Provisions. Additional provisions that shall govern the operation and
interpretation of this Agreement are set forth on Exhibit 4, and are incorporated herein.
13.2 Venue/Compliance with Florida Law. The parties hereto agree that the terms of
this Agreement comply with Florida law and that to the extent any provision of the Agreement may
be found to be in non-compliance, such provision shall be severed from the Agreement and all
remaini j2rovisions complying with Florida law shall remain in full force and effect. The parties
fu -~ ,t venue for any legal action shall be in Monroe County, Florida.
I~ C /lfJOci.. WHEREOF, the parties hereto have set their hands and seals the day and year
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BOARD OF COUNTY COMMISSIONERS
CONROE COUNTY, FLORIOA.....___,
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Deputy Clerk
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ATTEST:
MASADA MEDIA, INC.
(BUYER)
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By
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EXHIBIT 1
Definitions
The capitalized terms in this Agreement, unless otherwise defined, shall have the following
meaning(s).
1. Assignment Application means the application to the Commission requesting its
written consent to the assignment of the Commission Authorization from Seller to Buyer.
2. Closing means the performance of all acts, fulfillment of all conditions, and execution
of all documents and instruments, including but not limited to the documents referred to in this
Agreement as may be necessary to effectively transfer the Assets from Seller to Buyer and to
consummate all other transactions hereby contemplated and herein agreed to, on the Closing Date.
3. Closing Date means the fifth (5th) business day after the date upon which the
approval of the Commission required for the consummation of the transactions contemplated herein
shall have become a Final Order. The Closing Date may take place at such other time as the parties
may mutually agree, including before the Commission's grant of the assignment application has
become a Final Order, with the prior written consent of both parties.
4. Commission means the Federal Communications Commission.
5. Commission Authorization means all licenses, permits and authorizations issued or
granted by the Commission for the operation of, or used in connection with the operation of the
Station, which are listed on Exhibit 1 attached hereto and made a part of, together with any addition
or modified authorizations issued between the date hereof and the Closing Date, and any
applications to the Commission pertaining to the Station submitted prior to the Closing Date.
6. Final Order means a published order or other published action by the Commission
granting its consent to the Assignment Application and to the assignment of the Commission
Authorizations by Seller to Buyer without any conditions adverse to Seller or Buyer, or both, as to
which order or other action: (a) the time for filing a request for agency reconsideration or judicial
review or for the Commission's review of staff action or other appeal, protest request for stay, or
petition for rehearing, reconsideration, or review shall have expired, and (b) no litigation is pending
that would block or bar the transactions contemplated hereby, including the assignment of
Commission Authorizations by Seller to Buyer.
7. Station means the construction permit for W##XX, Anytown, AnyState and any other
Commission Authorizations.
8. Other Terms. All terms defined in the other Sections of this Agreement shall have
the meaning ascribed to them in those Sections.
EXHIBIT 2
Contracts, Agreements, Leases
All contracts and leases were terminated.
EXHIBIT 3
Equipment Inventory
Emcee TV Translator, FCC Type TU100D/U
Serial No. TU-458.
EXHIBIT 4
Miscellaneous Governing Provisions
1. Notice. Any notice required hereunder shall be in writing and any payment, notice or other
communications shall be deemed given when delivered personally, or mailed by certified mail, postage prepaid,
with return receipt requested, or by Federal Express Service, to address specified on Exhibit 6.
1.1 Alternate Addressees Notice, as provided by this Section, may be given to any other
person or party, as any party hereto may in the future designate in writing, upon due notice to the other
party(ies).
1.2 Date of Notice, Action. The receipt for deposit with the US Mail or courier service
specified herein shall establish the date of such notification or communication. If any notification,
communication or action is required or permitted to be given or taken within a certain period of time and the
last date for doing so falls on a Saturday, Sunday, a federal legal holiday or legal holiday by law in the State of
Florida, the last day for such notification, communication or action shall be extended to the first date thereafter
which is not a Saturday, Sunday or such legal holiday.
2. Headings. The headings of the Sections of this Agreement were for convenience of references
only, and do not form a part thereof, and do not in any way modify, interpret or affect the terms of this
Agreement.
3. Brokers. Buyer and Seller warrant that no broker is involved regarding this transaction, and
each agrees to hold the other harmless as against any claim of any broker arising out of or as a consequence of
the respective actions of Buyer and Seller.
4. Entire Agreement. This Agreement sets forth the entire agreement of the parties and is
intended to supersede all prior negotiations, understandings, and agreements and cannot be altered, amended,
changed or modified in any respect unless such alteration, amendment, change or modification shall have been
agreed to by each of the parties hereto and reduced to writing in its entirety and signed and delivered by each
party.
5. No Waiver. No provision, condition, or covenant of this Agreement shall be waived by either
party hereto except by a written instrument delivered to the other party and signed by the party consenting to
and to be charged with such waiver. Any provision, condition or covenant which may be waived only with the
mutual consent of both parties to this Agreement shall be evidenced by a written instrument signed by both
parties.
6. No Assignment. Neither Buyer nor Seller may assign its rights, duties or obligations
hereunder without the prior written consent of the other party. Nothing in this Agreement, expressed or
implied, is intended to or shall confer on any person other than the parties hereto and their respective
successors and assigns, any right, remedies, obligations or liabilities under or by reason of this Agreement.
7. Counterparts. This Agreement may be executed in counterparts, all of which together shall
comprise one and the same instrument.
8. Good Faith. All parties hereto shall act in good faith performing and discharging their
respective duties and obligations hereunder. Further, each of the Parties, upon the reasonable request of the
other, will take such other action and execute and deliver such further instruments of assignments, conveyance
and transfer as may be reasonably necessary to assure, complete and evidence the full and effective transfer
and conveyance of the Assets pursuant to this Agreement.
9. Time. Time shall be of the essence in this Agreement.
10. Governing Law. The parties agree that this Agreement will be interpreted, construed, and
enforced under and according to the laws of the State of Florida.
11. Schedules and Exhibits. All schedules, exhibits and riders attached to this Agreement shall
be deemed part of this Agreement and incorporated herein, where applicable, as if set forth in full herein.
EXHIBIT 5
Notice
Notice under this Agreement shall be given to the following:
As to Buyer:
Adelis.fihwayder
MASADA MEDIA, INC.
PO Box 4197
Englewood, CO 80155-4197
As to Seller:
MONROE COUNTY ADMINISTRATOR
Public Service Building
5100 College Road
Key West, FL 33040
with copy to:
(which shall not constitute notice)
NjA
with copy to:
(which shall not constitute notice)
MONROE COUNTY ATTORNEY
PO Box 1026
Key West, FL 33041-1026