Item L6
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
June 20, 2001
Division:
County Attorney
Bulk Item: Yes 0 No 0
AGENDA ITEM WORDING:
Approval of two agreements as fOllOW-Up agreements to facilitate the closing on the transfer
of FCC licenses and consummation of agreed upon sale/purchase.
(1) First Amendment to Asset Purchase Agreement; and
(2) Escrow Agreement
ITEM BACKGROUND:
On September 20, 2000, the BOCC approved two revised asset purchase agreements for sale of
translator equipment and licenses approved at July meeting and authorization to submit applications for
FCC approval of transfers of licenses. Agreements were approved by Board 11/21/00.
PREVIOUS RELEVANT BOCC ACTION:
See above.
CONTRACT I AGREEMENT CHANGES:
See above.
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST:
COST TO COUNTY:
BUDGETED: Yes 0 No 0
APPROVED BY:
County Attorney. OMB/Purchasing 0 Risk Management 0
DIVISION DIRECTOR APPROVAL~~
AME . E ORICK
DOCUMENTATION: Included 0 To Follow 0 Not Required 0
AGENDA ITEM #
I:L!l
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement ("First Amendment"), made as of
the date last indicated at the signatures below, modifies that certain Asset Purchase Agreement
dated as of November 21,2000, ("Purchase Agreement") by and between Monroe County
("Seller") and WEYS Television Corp. ("Buyer") in the following respects, and only in the
following respects.
WHEREAS, Seller and Buyer entered into that certain Purchase Agreement, dated as of
November 21, 2000, in which Seller agreed to sell to Buyer all of the assets, including the
licenses issued by the Federal Communications Commission ("FCC" or "Commission"), used by
Seller in the operation of the following Television Translator Stations:
W39AC, Key West, Florida
W49AE, Key West, Florida
W47AC, Big Pine Key, Florida
W57AM, Big Pine Key, Florida
W38AA, Marathon, Florida
W63AL, Marathon, Florida
W65AP, Marathon, Florida
W 40AA, Matecumbe, Florida
W43AD, Matecumbe, Florida
W54BB, Rock Harbor, Florida
W56AZ, Rock Harbor, Florida
W64AN, Rock Harbor, Florida;
WHEREAS, Seller and Buyer subsequently discovered that the Purchase Agreement
contained no reference to an Escrow Deposit or an Escrow Agreement, though it was the
intention of the parties that the Buyer would deliver into escrow the sum of Eight Thousand
Dollars Two Hundred Twenty and Noll 00 ($8,220.00) and the Buyer did indeed deliver into the
trust account of the Escrow Agent the amount noted in this paragraph for the purpose of serving
as an Escrow Deposit;
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement to include
reference to an Escrow Deposit and Escrow Agreement.
NOW, THEREFORE, Seller and Buyer agree as follows:
1. Simultaneously with execution of the Escrow Agreement, attached hereto and
made a part hereof, and this First Amendment to the Purchase Agreement, the sum of Eight
Thousand Dollars Two Hundred Twenty and Noll 00 ($8,220.00) previously delivered into the
trust account of the Escrow Agent shall be delivered into escrow and deposited by the Escrow
Agent in an interest-bearing bank account, in accordance with the teI1nS ofthe Escrow
Agreement.
2. On t~f~1int.Date, the principal of the Escrow Deposit shall be applied as part
of the purchase pric'P~l"Mf to Seller.
51021108.02
3. Seller and Buyer each represents that it is legally qualified, empowered and able
to enter into this First Amendment, and that the execution, delivery and performance hereof shall
not constitute a breach or violation of any agreement, contract or other obligation of any kind to
which either party is subject or by which it is bound. Each party hereto represents and warrants
that it has taken all necessary corporate or other necessary action to make this First Amendment
legally binding on such party, and that the individual signing this First Amendment on behalf of
such party has been fully authorized and empowered to execute this First Amendment on behalf
of such party.
4. This First Amendment may be signed in one or more counterparts, each of which
shall be deemed a duplicate original, binding on the parties hereto; notwithstanding that the
parties are not signatory to the original or the same counterpart. This First Amendment shall be
effective as of the date on which the executed counterparts are exchanged by the parties.
5. Unless otherwise provided herein, this First Amendment shall be construed and
interpreted in -accordance with the terms and provisions of the Purchase Agreement.
6. Any capitalized term used but not defined herein shall have the meaning given to
such term in the Purchase Agreement. Nothing contained in this First Amendment, unless
otherwise expressly set forth herein, shall in any way modify, adjust, revise, alter, abrogate,
supersede, abridge, replace, delete or change any of the terms, conditions or obligations of the
Seller and Buyer as set forth in the Purchase Agreement.
7. This First Amendment, like the Purchase Agreement, is the product of
negotiation and preparation by, between and among Seller and Buyer and their respective
attorneys. Accordingly, the parties hereto acknowledge and agree that this First Amendment
shall not be deemed prepared or drafted by one party or another, or the attorneys for one party or
another, and shall be construed accordingly.
8. The Purchase Agreement remains in full effect and binds the parties thereto in
accordance with each of its terms, except as modified by the additional terms provided herein.
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2
510211 08.02
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in their respective names on the dates indicated under each signature.
Seller:
Buyer:
Board of County Commissioners of
Monroe County, Florida
WEYS Television Corp.
By:
By:
Name:
Title:
Name: David Drucker
Title:
Date:
Date:
3
51021108.02
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, effective as of the _ day of May, 2001, by and
among MONROE COUNTY, a political subdivision of the State of Florida, at Public Service
Building, 5100 College Road, Key West, Florida 33040 ("Seller''), and WEYS TELEVISION
CORP., at Post Office Box 348, Sedalia, Colorado ("Buyer'') and BORSARI & PAXSON, a general
partnership at 2021 L Street, NW, Suite 402, Washington, D.C. 20036 ("Escrow Agent'').
WITNESSETH:
WHEREAS, Seller and Buyer have entered into an Asset Purchase Agreement ("Purchase
Agreement''), dated the 21s1 day of November, 2000, with respect to the sale and purchase of the
assets, including the licenses issued by the by the Federal Communications Commission ("FCC"
or "Commission ''), used by Seller in the operation of the following Television Translator Sta-
tions:
W39AC, Key West, Florida
W49AE, Key West, Florida
W47AC, Big Pine Key, Florida
W57AM, Big Pine Key, Florida
W38AA, Marathon, Florida
W63AL, Marathon, Florida
W65AP, Marathon, Florida
W 40AA, Matecumbe, Florida
W43AD, Matecumbe, Florida
W54BB, Rock Harbor, Florida
W56AZ, Rock Harbor, Florida
W64AN, Rock Harbor, Florida;
WHEREAS, pursuant to the First Amendment to the Purchase Agreement, dated
May _, 2001, Buyer is required to deposit certain sums in escrow to secure its obligations
under the Purchase Agreement; and,
WHEREAS, the Escrow Agent has agreed to act as the agent and custodian for the Escrow
Fund (as hereinafter defined) for the benefit of Seller and Buyer.
Now THEREFORE, the parties hereto, intending to be legally bound hereby, and in con-
sideration of the mutual covenants herein contained, agree as follows:
I. Appointment of Escrow Agent. Seller and Buyer each hereby appoint the Escrow
Agent to act as agent and custodian for the Escrow Fund for their respective benefit pursuant to
the terms of this Escrow Agreement, and the Escrow Agent hereby accepts such appointment.
2. Deposit of Escrow Deposit. By its signature below, the Escrow Agent acknowledges
receipt of an escrow deposit from Buyer in the amount of EIGHT THOUSAND TWO HUNDRED
TWENTY AND No/IOO DOLLARS ($8,220.00). Escrow Agent agrees to hold and to disburse the
Escrow Deposit only in accordance with this Agreement.
2. I. Investment of Escrow Deposit. The Escrow Deposit shall be invested by Escrow
Agent in interest bearing bank accounts or certificates of deposit of federally insured finan-
cial institutions or in treasury bills or other investments as may be directed by the instructions
of Buyer. All interest earned and unpaid on the Escrow Deposit shall be paid to Buyer at
Closing upon consummation of the Purchase Agreement.
MONROE COUNTY, FLORIDA, ESCROW AGREEMENT
PAGE I
4. Disbursement of Deposit. The Escrow Agent shall distribute and dispose the Escrow
Deposit as follows:
4.1. Upon Closing on the Sale of the Stations. In the event the purchase and sale
closes in the manner contemplated in the Purchase Agreement, the Escrow Deposit shall be
paid over to the Seller at closing in accord with said Purchase Agreement. In such event, all
interest earned and accumulated thereon and proceeds therefrom shall be paid over to Buyer
at closing.
4.2. Breach by Buyer. In the event the purchase and sale does not close as contem-
plated in the Purchase Agreement due to material breach by or default of the Buyer under the
terms of the Purchase Agreement, then the entire Escrow Deposit shall be paid over to the
Seller in accordance with the provisions of Section 5, and its subparts, hereof. In the event of
a breach of the Purchase Agreement by Buyer, all earned and unpaid interest shall be in-
cluded in and paid to Seller with the Escrow Deposit.
4.3. Breach by Seller. In the event the purchase and sale does not close as contem-
plated in the Purchase Agreement due to material breach by or default of the Seller under the
terms of the Purchase Agreement, then the entire Escrow Deposit shall be returned to Buyer
in accordance with the provisions of Section 5, and its subparts, hereof. The interest earned
and accumulated thereon from said Escrow Deposit shall be returned to Buyer.
4.4. Termination Upon Mutual Consent. In all other events, if the Purchase Agree-
ment is terminated or if the transaction or closing contemplated thereby are not consum-
mated, the Escrow Deposit shall be returned to the Buyer together with all interest earned and
accumulated thereon and the proceeds therefrom.
S. Procedures for Release of EscroJV Deposit.
5.1. Joint Written Instructions. Escrow Agent shall release the Escrow Deposit only
upon receipt of (i) joint written instructions executed by Seller and Buyer or (ii) an order of a
court.
6. Concerning the Escrow Agent.
6.1. Compensation. The Escrow Agent shall charge no fees for its services hereunder.
6.2. Duties in General.
6.2.1. Express Duties. The Escrow Agent undertakes to perform only such duties
as are expressly set forth herein (and required by applicable law), which the parties agree
are ministerial in nature. If in doubt as to its duties and responsibilities hereunder, the Es-
crow Agent may consult with counsel of its choice and shall be protected in any action
taken or omitted in good faith in connection with the advice or opinion of such counsel.
6.2.2. Actions in Event of Litigation. If the Escrow Agent should become in-
volved in litigation or arbitration with respect to this Escrow Agreement for any reason,
Escrow Agent is hereby authorized to deposit the Escrow Deposit with the Clerk of such
court in which such litigation is pending, or to interplead all interested parties in any
court of competent jurisdiction and to deposit with the Clerk of such court the Escrow
Deposit. Upon the happening of either of the above, the Escrow Agent shall stand fully
relieved and discharged of any further duties hereunder.
MONROE COUNTY, FLORIDA, ESCROW AGREEMENT
PAGE 2
6.2.3. Reliance. The Escrow Agent may conclusively rely, and shall be protected
in acting or refraining from acting, on any written notice, instrument or signature be-
lieved by it to be genuine and to have been signed or presented by the proper party or par-
ties duly authorized to do so. The Escrow Agent shall have no responsibility for the
contents of any writing contemplated herein and may rely without any liability upon the
contents thereof.
6.3. No Additional Duties. The Escrow Agent shall have no duties except those that
are expressly set forth herein, and he shall not be bound by any notice of a claim or demand
hereunder, or any waiver, modification, amendment, termination or rescission of this Escrow
Agreement, unless received by it in writing.
6.4. Resignation. The Escrow Agent may resign and be discharged from hislher/its
duties hereunder at any time by giving written notice of such resignation to Buyer and Seller
and specifying the date when such resignation shall take effect. Upon such notice, a succes-
sor escrow agent shall be appointed with the unanimous consent of the parties hereto, and the
service of such successor escrow agent shall be effective as of the date of resignation speci-
fied in such notice, which date shall not be less than thirty (30) days after giving of such no-
tice. If Seller and Buyer are unable to agree upon a successor escrow agent Within thirty (30)
days after such notice, the resigning Escrow Agent shall be authorized to appoint its succes-
sor and shall continue to serve until its successor accepts the appointment by written notice to
the parties hereto. By mutual agreement of Buyer and Seller, the Buyer and Seller shall have
the right at any time, upon not less than seven (7) Business Days written notice, to terminate
the appointment of the Escrow Agent, or the successor Escrow Agent, as Escrow Agent
hereunder. Notwithstanding anything to the contrary in the foregoing, the Escrow Agent or
the successor Escrow Agent shall continue to act as Escrow Agent until a successor is ap-
pointed and qualified to act as Escrow Agent.
6.5. Indemnification of the Escrow Agent. In consideration of its acceptance of the
appointment as Escrow Agent, Buyer and Seller jointly and severally agree (i) to indemnify
and hold the Escrow Agent hannless as to any loss, liability or expense incurred without
gross negligence, bad faith or willful misconduct by the Escrow Agent to any person by rea-
son of its having accepted the same or in carrying out any of the terms hereof, and (ii) to re-
imburse the Escrow Agent on request for all its reasonable attorneys' fees and other
reasonable costs and expenses incurred by it in connection with carrying out its duties here-
under. This indemnification shall survive termination of this Escrow Agreement.
6.6. Exculpation. Except for the Escrow Agent's own willful misconduct, bad faith or
gross negligence (i) the Escrow Agent shall have no liability of any kind whatsoever for
hislher/its performance of any duties imposed upon the Escrow Agent under this Escrow
Agreement or for any of hislher/its acts or omissions hereunder; (ii) the Escrow Agent shall
not be responsible for any of the acts or omissions of the parties hereto; (iii) the Escrow
Agent shall not be liable to anyone for damages, losses or expenses arising out of this Escrow
Agreement; and (iv) the Escrow Agent may rely and/or act upon any written instrument,
document or request believed by the Escrow Agent in good faith to be genuine and to be exe-
cuted and delivered by the proper person, and may assume in good faith the authenticity, va-
lidity and effectiveness thereof and shall not be obligated to make any investigation or
determination as to the truth and accuracy of any information contained therein.
MONROE COUNTY. FLORIDA, ESCROW AGREEMENT
PAGE 3
6.6.1. Agent's Expenses. In the event that the Escrow Agent shall find it neces-
sary to consult with counsel of its own choosing in connection with this Escrow Agree-
ment, the Escrow Agent shall not incur any liability for any action taken in accordance
with such advice. Buyer and Seller shall, on a 50%/50% basis, reimburse the Escrow
Agent for all out of pocket expenses incurred in administering this Escrow Agreement,
including without limitation legal fees, wire charges, postage, long distance calls and ex-
press mail, which escrow-related expenses shall be in accordance with his/her/its custom-
ary and reasonable fee schedule. Seller and Buyer agree that Escrow Agent may
withdraw the expenses from the Escrow Deposit on a quarterly basis from time to time;
provided, however, that Escrow Agent notify Seller and Buyer on no less than a quarterly
basis of the amount of such escrow expenses imposed during the prior period.
6.6.2. Agent Not Subject to Other Agreements. Escrow Agent is not a party to,
and is not bound by, any agreement which may be evidenced by, or arise out of, the fore-
going instructions, other than as expressly set forth herein. In the event that any of the
terms and provisions of any other agreement (excluding any amendment to this Escrow
Agreement) between any of the parties hereto, conflict or are inconsistent with any of the
provisions of this Escrow Agreement, the terms and provisions of this Escrow Agreement
shall govern and control in all respects.
6.7. Miscellaneous. The Escrow Agent may execute any of his/her/its powers or re-
sponsibilities hereunder and exercise any rights hereunder either directly or by or through
his/her/its agents or attorneys. The Escrow Agent shall not be responsible for and shall not be
under a duty to examine or pass upon the validity, binding effect, execution or sufficiency of
the Escrow Agreement or of any agreement amendatory or supplemental hereto.
7. Miscellaneous Provisions.
7.1. Interpretation. This Escrow Agreement shall be construed and governed in ac-
cordance with the laws of the District of Columbia.
7.2. Benefit. This Escrow Agreement shall be binding upon and shall inure to the
benefit of the parties, their successors and permitted assigns.
7.3. Counterparts. This Escrow Agreement may be executed in one or more counter-
parts, each of which shall be deemed to be an original, but all of which together shall consti-
tute one and the same instrument. This Agreement shall be effective as of the date on which
the executed counterparts are exchanged by the parties.
7.4. Notices. Any notice required hereunder shall be in writing and any payment, no-
tice or other communications shall be delivered personally, or mailed by certified mail, post-
age prepaid, with return receipt requested, or delivered to FedEx (Federal Express) or any
other nationally recognized overnight delivery service, in each case addressed to the persons,
parties or entities identified (i) in the Purchase Agreement, or (ii) below in this Agreement.
7.4.1. 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).
7.4.2. Date of Notice, Action. The date of personal delivery or the delivery date
(or date of attempted delivery and refusal by the addressee) specified on any receipt from
MONROE COUNTY, FLORIDA, ESCROW AGREEMENT
PAGE 4
the U.S. Mail or courier service specified herein shall establish the date of such notifica-
tion or communication. If any notification, communication or action is required or per-
mitted 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 District
of Columbia, the last day for such notification, communication or action shall be ex-
tended to the first date thereafter which is not a Saturday, Sunday or such legal holiday.
To Seller: Monroe County Administrator To Buyer: WEYS Television Corp.
Public Service Building Attention: Robert Goldstein
5100 College Road P.O. Box 348
Key West, FL 33040 Sedalia, CO 80135
With a Suzanne Hutton, Esq. With a David M. Drucker
required Office of the County Attorney required WEYS Television Corp.
copy to: County of Monroe copy to: P.O. Box 255
P.O. Box 1026
Key West, FL 33041 Evergreen, CO 80437
and to: Howard J. Braun, Esq.
Rosenman & Colin LLP
805 15th Street, NW, 9th Floor
Washington, D.C. 20005
To Escrow
Agent:
George R. Borsari, Esq.
Borsari & Paxson
2021 L Street, NW, Suite 402
Washington, DC. 20036
7.5. Headings. The headings of the sections (paragraphs) of this Escrow Agreement
are for the convenience of reference only, and do not form a part hereof, and in no way mod-
ify, interpret or construe the meanings of the parties. The section (paragraph) headings shall
be given no effect in the construction or interpretation of this Escrow Agreement.
7.6. Scope of Agreement. This Agreement, when read with the Purchase Agreement,
as modified or amended (collectively the "Transaction Documents "), constitutes the entire
understanding between the parties and, except for the other agreements noted therein or made
exhibits to the Transaction Documents, there are no other agreements, representations, war-
ranties, or understandings, oral or written, between or among the parties with respect to the
subject matter hereof. No alteration, modification or change of this Escrow Agreement shall
be valid unless by like written instrument.
7.7. Number and Gender. Whenever required by the context, the singular number
shall include the plural and the masculine or neuter gender shall include all genders.
7.8. Waiver. Failure of any party to complain of any act or omission on the part of
any other party in breach of this Escrow Agreement, no matter how long the same may con-
tinue, shall not be deemed to be a waiver by said party of any of hislher/its rights hereunder.
No waiver by any party at any time, express or implied, of any breach of any provisions of
this Escrow Agreement shall be deemed a waiver of any other provisions of this Escrow
Agreement or a consent to any subsequent breach of the same or other provisions.
7.9. Assignment. Buyer and Seller may assign their respective rights under this Es-
crow Agreement to the same extent they are permitted to assign their rights and obligations
under the Purchase Agreement.
MONROE COUNTY, FLORIDA, ESCROW AGREEMENT
PAGE 5
7.1 O. Invalidity. The invalidity or unenforceability of any term or provision of this
Escrow Agreement, or the application of such term or provision to any person or circum-
stances, shall not impair or affect the remainder of this Escrow Agreement and its application
to other persons and circumstances, and the remaining terms and provisions hereof shall not
be invalidated but shall remain in full force and effect.
7.11. Capitalized Terms. Capitalized terms used in this Escrow Agreement, unless
otherwise defined herein, shall have the meaning(s) ascribed to them in the Purchase Agree-
ment.
7.12. Construction of Agreement. This Agreement is the product of negotiation and
preparation by, between and among Buyer, Seller and Escrow Agent, and their respective at-
torneys. Accordingly, the parties hereto acknowledge and agree that this Escrow Agreement
shall not be deemed prepared or drafted by one party or another, or the attorneys for one
party or another, and shall be construed accordingly.
7.13. Explication. Unless the context of this Agreement clearly requires otherwise,
references to the plural include the singular and to the singular include the plural, references
to any gender include any other gender, the part includes the whole, the term "including" is
not limiting, and the term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby," "hereunder,"
and similar terms in this Agreement refer to this Agreement as a whole and not to any par-
ticular provision of this Agreement. Article, section, subsection, clause, exhibit and schedule
references are to this Agreement, unless otherwise specified. Any reference in or to this
Agreement or any of the Transaction Documents includes any and all permitted alterations,
amendments, changes, extensions, modifications, renewals, or supplements thereto or
thereof, as applicable.
8. Intentionally Omitted
9. Termination. This Escrow Agreement shall automatically terminate upon the distribu-
tion of the Escrow Deposit in accordance with the terms hereof, and the Escrow Agent shall be
discharged of any further liability.
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MONROE COUNTY, FLORIDA, ESCROW AGREEMENT
PAGE 6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Escrow
Agreement as of the date first above written.
SELLER:
MONROE COUNTY, FLORIDA
By:
Name:
.....-.~.._...__.__...__..___.._.M._._..._._.___.__.__..___.__._.__.....__._._...._.._.....__...___._.__...._.._.....
Title:
-..-.--..-.----.......---..---..............-..........-.....-.----.............---.--...--.-..-...------...----..--..-..............---.....
BUYER:
WEYS TELEVISION CORP.
By \). 1M. · C'L _
Name: David M. Drucker
Title: President
ESCROW AGENT:
BORSARI & PAXSON
By:
Name:
Title:
George R. Borsari
Partner
MONROE COUNTY, FLORlDA, ESCROW AGREEMENT
PAGE 7