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Item P05 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: January 17, 2001 Division: County Attorney AGENDA ITEM WORDING: Approval for Mayor to execute 3 Asset Purchase Agreements for TV stations at Rock Harbor and Matecumbe through Keith Shwayder to: Colorado Community Broadcast, Inc. and two to Masada Media, Inc. ITEM BACKGROUND: Two cOfltracts are for sale of licenses and equipment for which the bids were awarded in November. The contract for the license and equipment relevant to Station 59 has been revised to show the corporate entity to which the bidder Keith Shwayder wants the license transferred. PREVIOUS RELEVANT BOCC ACTION: The BOCC awarded the bids on W61AI and W67AP .at its November meeting, and approved a prior version of the contract for W59AJ at its October meeting. STAFF RECOMMENDATION: TOTAL COST: Cost to County: BUDGETED: Yes No APPROVED BY: County Attorney x OMB/Purchasing Risk Management DIVISION DIRECTOR APPROV~ DOCUMENTATION: Included -2L- To Follow .. u~---~ot required AGENDA ITEM # (-P6 ASSET PURCHASE AGREEMENT Masada Media, Inc. THIS AGREEMENT, made and entered into this day of , 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: SECTION 1 DEFINITIONS 1. Definitions. As used herein, unless otherwise defined, shall have the meaning or meanings assigned to them as described on Exhibit 1, hereto. 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 $atisfaction 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 (bl 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 breath 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 afterthe 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, anG 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 GovemlngProvislons. 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 remaining provisions complying with Florida law shall remain in full force and effect. The parties further agree that venue for any legal action shall be in Monroe County, Florida. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Deputy Clerk By Mayor/Cha irperson (SEAL) ATTEST: MASADA MEDIA, INC. (BUYER) By Title By Title Jdconmedia "'^T~ 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 Auth.orization 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 u. 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 Aorida, 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 Aorida. 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: Keith Shwayder MASADA MEDIA, INC. PO Box 4197 Englewood, CO 80155-4197 As to Seller: MONROE COtJNTY ADMINISTRATOR Public Service Building 5100 College Road Key West, FL 33040 with copy to: (which shall not constitute notice) N/A with copy to: (which shall not constitute notice) MONROE COUNTY AlTORNEY PO Box 1026 Key West, FL 33041-1026 ASSET PURCHASE AGREEMENT MASADA MEDIA, INC. THIS AGREEMENT, made and entered into this day of , 2001 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 61, at Rock Harbor, Monroe County, Florida, with the call sign W61AI, (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 C. Said FCC Authorizations may not be assigned without the prior authorization of the FCC. . 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: SECTION 1 DEFINITIONS 1. Definitions. As used herein, unless otherwise defined, shall have the meaning or meanings assigned to them as described on Exhibit 1, hereto. 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 W61AI, 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 THREE THOUSAND DOLLARS ($3,000.00) 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 dn 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. l 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 remaining provisions complying with Florida law shall remain in full force and effect. The parties further agree that venue for any legal action shall be in Monroe County, Florida. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) AlTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Deputy Clerk By Mayor/Chairperson (SEAL) ATTEST: MASADA MEDIA, INC. (BUYER) By Title By Title Jdconmasada BY AN,%A./oUTTON MTI' It 1 I EXHIBIT 1 Defi n itions 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 (sth) 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-lcfthe Commission pertaining to the Station submitted prior to the Closing Date. 6. FinslOrder 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 FU100D/V Serial No. TU-456 - 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 mOdific(ttionshall have been agreed to by each of the parties hereto and reduced to writing in its entirety and signed and delivered by each party. s. 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: Keith Shwayder MASADA MEDIA, INC. PO Box 4197 Englewood, CO 80155-4197 As to Seller: MONROE COUNlY ADMINISTRATOR Public Service Building 5100 College Road Key West, FL 33040 ~ with copy to: (which shall not constitute notice) N/A with copy to: (which shall not constitute notice) MONROE COUNlY ATTORNEY PO Box 1026 Key West, FL 33041-1026 ASSET PURCHASE AGREEMENT Colorado Community Broadcast, inc. THIS AGREEMENT, made and entered into this day of , 2001, 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 COLORADO COMMUNITY BROADCAST, 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 67, at Rock Harbor, Monroe County, Florida, with the call sign W67AP, (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: SECTION 1 DEFINITIONS 1. Definitions. As used herein, unless otherwise defined, shall have the meaning or meanings assigned to them as described on Exhibit 1, hereto. 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 W67 AP, 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 ONE THOUSAND DOLLARS ($1,000.00) 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 Authorizationsto 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 dn 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 Goveming Provisions. Additional provisions that shall govern the operation and interpretation of this Agreement are set forth on Exhibit 4, and are inc:orporated 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 remaining provisions complying with Florida law shall remain in full force and effect. The parties further agree that venue for any legal action shall be in Monroe County, Florida. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By By Deputy Clerk Mayor/Chairperson (SEAL) COLORADO COMMUNITY BROADCAST, INC. (BUYER) By Title By Title JdconCOlV 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 Js.s..uE!d between the date hereof and the Clqsing 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/V Serial No. TU-454 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. Brokel'S. 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. S. 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: Keith Shwayder COLORADO COMMUNITY BROADCAST, 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) N/A with copy to: (which shall not constitute notice) MONROE COUNTY ATTORNEY PO Box 1026 Key West, FL 33041-1026