AGREEMENT OF SALE (O&O)
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This Agreement of Sale (the "Agreement") is made this ___ day of
December, 2000, between Xxxxxxx XX Acquisition Corp., a Delaware corporation
(the "Seller") and Xxxxxxx Family Towers, Inc., a Delaware corporation (the
"Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprised of
one parcel of real property and two (2) communications tower facilities (the
"Towers"), located in Atlanta, Georgia used in the operation of radio broadcast
stations WAEC-AM and WWWE-AM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Towers and certain real and personal property belonging to Seller and associated
with the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Agreement To Sell And Purchase.
------------------------------
Seller agrees to sell, transfer, assign, convey and deliver to Buyer
and Buyer agrees to purchase and accept from Seller, the following assets upon
the terms and conditions contained herein (collectively, the "Assets"):
(a) Those certain tracts of land, and easements or appurtenances
incident to such tracts of land, that are associated with the Tower Site
(collectively, such land, easements and appurtenances, the "Land"), and the
Towers, such Towers and Land more particularly described in Exhibit A attached
hereto.
(b) [The leases for use of space on certain of the Towers located
at the Tower Site as more particularly discussed in Section 5(d) of this
Agreement.]
2. Assumption of Liabilities.
-------------------------
(a) Upon the terms and subject to the conditions contained
herein, Buyer shall assume and become responsible for any and all liabilities
and obligations arising out of, or relating to events occurring after 12:01 am
Eastern Standard Time on the Closing Date (the "Adjustment Time") with respect
to the ownership of the Land and Towers, and the operation of the business
relating to the Assets (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is
understood and agreed that all liabilities to third parties relating to the
Assets that arise out of any act, event, or transaction of Seller or the
ownership of the Assets or the operation of the business relating to the Assets
prior to the Closing Date (the "Retained Liabilities") shall remain the
responsibility of Seller. Buyer shall not be required to defend any suit or
claim arising out of any Retained
Liabilities, and Seller shall and hereby agrees to satisfy in due course all
such Retained Liabilities, and subject to Section 13 hereof Seller shall protect
and forever hold Buyer harmless from all claims with respect to such Retained
Liabilities. It is understood and agreed that all liabilities relating to the
Assets that arise out of any act, event, or transaction of Buyer following the
Closing Date (the "Assumed Liabilities") shall be the responsibility of Buyer.
Seller shall not be required to defend any suit or claim arising out of any
Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due course
all such Assumed Liabilities, and subject to Section 13 hereof Buyer shall
protect and forever hold Seller harmless from all claims with respect to such
Assumed Liabilities.
3. Purchase Price.
--------------
(a) The purchase price for the Assets shall be the amount of Four
Hundred Forty Eight Thousand Two Hundred Ten Dollars ($448,210.00), (the
"Purchase Price"). The Purchase Price shall be adjusted at the Closing by the
amount of any prorations derived by operation of Section 6 hereof, and for any
other normal income and expense items related to the operation of the Tower
Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price
shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the
Purchase Price, the Assumed Liabilities and other relevant items among the
Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Buyer and Seller will each report the federal, state, and
local and other tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
4. Delivery of Purchase Price.
--------------------------
(a) The Purchase Price shall be payable at Closing (as defined in
Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall deliver to
Seller at Closing an unsecured promissory note of Buyer in the aggregate
principal amount of Four Hundred Forty Eight Thousand Two Hundred Ten Dollars
($448,210.00), substantially in the form of Exhibit B (the "Purchase Note").
5. Transfer of Towers; Title Insurance.
-----------------------------------
(a) Transfer of title to the Land shall be by deed from the
Seller to the Buyer (a "Deed"), which Deed shall be in the form of Exhibit C
attached hereto and incorporated herein. Transfer of ownership of the Towers and
assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be
pursuant to the Assignment, Xxxx of Sale and Assumption Agreement from the
Seller to Buyer in the form of Exhibit D attached hereto and incorporated herein
(the "Assignment, Xxxx of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of
all liens, encumbrances other than Permitted Encumbrances, if any; otherwise the
title to the Land shall be
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good and marketable or such as will be insured by a reputable title insurance
company at regular rates. "Permitted Encumbrances" shall mean: (i) encumbrances
for taxes, assessments, or governmental charges or levies which are not yet due
and payable, or that, subject to adequate security for payment, are being
contested; (ii) existing building restrictions, ordinances, easements of roads,
privileges, or rights of public service companies or other rights of way, other
restrictions or conditions of record, if any or other encumbrances disclosed in
this Agreement (including the Exhibits attached hereto); (iii) easements, rights
of way or other encumbrances that do not have a material adverse effect on the
Assets or the operation of the business relating to the Assets as currently
operated; (iv) encumbrances imposed by law, such as materialmen's, mechanic's,
carrier's, workmen's, or repairmen's liens or other similar encumbrances
attaching in the ordinary course of business or securing obligations that are
not overdue; (v) encumbrances securing indebtedness, which will be removed prior
to or at the Closing; and (vi) encumbrances pursuant to contracts and leases to
be assumed by Buyer pursuant to Section 2.
(c) As soon as practicable following the Closing, or at such
other time as the parties agree, Seller, at its expense, shall obtain and
deliver to Buyer a commitment for title insurance (the "Title Commitment")
issued by a nationally recognized title company in the ALTA Owner's Form Policy
of Title Insurance (each a "Title Policy" and collectively, "Title Policies")
covering each tract of Land, setting forth the current status of title thereto,
showing all recorded liens, claims, encumbrances, easements, rights-of-way,
encroachments, reservations, restrictions and any other matters of public record
affecting title to the Land pursuant to which such title company agrees to issue
to Buyer the Title Policies. The cost of the Title Policies shall be borne by
the Buyer. Seller shall execute such customary documents as the title company
reasonably requests, including, but not limited to, an affidavit of debts and
liens and customary closing statements.
6. Apportionment of Real Estate Taxes, Rent, Utilities.
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(a) Current real estate taxes, rent, utilities and all other
normal income and expense items related to the Assets shall be apportioned
between the parties to reflect the principle that all expenses and income
arising from the operation of the Assets up through the Adjustment Time shall be
for the account of Seller, and all expenses and income arising from the
operation of the business relating to the Assets acquired by Buyer after the
Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at such
other time as the parties agree, Buyer shall deliver to Seller a certificate
from Buyer which sets forth as of the Adjustment Time, all adjustments to be
made as provided in Section 6(a) above (the "Buyer's Certificate"). Buyer shall
provide Seller or its representatives access to copies of such portions of books
and records Seller may reasonably request solely for the purposes of verifying
such adjustments. The Buyer's Certificate shall be final and conclusive unless
objected to by Seller in writing within ninety (90) days after delivery. Buyer
and Seller shall attempt jointly to reach agreement as to the amount of the
adjustments to be made hereunder within thirty (30) days after receipt of such
written objection, which agreement, if achieved, shall be binding upon all
parties to this Agreement and not subject to dispute or review.
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(c) In the event of a disagreement between Buyer and Seller with
respect to the accounting to be made hereunder, the parties agree that a public
accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of
such disagreement.
(d) Any amounts due for the adjustments provided for herein shall
be paid within thirty (30) business days after final determination.
7. Expenses.
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(a) Seller shall pay the costs of preparation of the Deed,
acknowledgement of the Deed, Federal, state and local revenue stamps, and real
estate transfer taxes.
(b) All other costs and expenses incurred by the Parties in this
transaction, including, but not limited to attorneys' fees, shall be paid by the
party incurring them.
8. Closing; Closing Conditions.
---------------------------
(a) Closing of the transactions contemplated by this Agreement
(the "Closing") shall occur at a place and time mutually agreeable to Seller and
Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort
to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Buyer being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Buyer to consummate the transactions contemplated under this Agreement shall
have been obtained, (iii) no order, decree or judgment of any court, agency or
other governmental authority shall have been issued based on or arising out of
the conduct, action, inaction, qualifications or status of Buyer or any of its
affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b), and (v) the delivery by Buyer of Buyer's Closing Documents (as defined in
Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Seller being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specific date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Seller to consummate the transactions contemplated under this Agreement
shall have been obtained, (iii) no order, decree or judgment of any court,
agency or other governmental authority shall have been issued based on or
arising out of the conduct, action, inaction, qualifications or status of Seller
or any of its affiliates, which would render it unlawful as of the Closing Date
to effect that
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transactions contemplated by this Agreement in accordance with its terms, and
(iv) the delivery by Seller of Seller's Closing Documents as set forth in
Section 9 hereof.
9. Closing Deliveries.
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(a) At Closing, Seller shall execute and/or deliver to Buyer the
following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Xxxx of Sale and Assumption
Agreement;
(iii) A certificate from an officer of Seller reasonably
acceptable to Buyer confirming the accuracy of the
representations and warranties in Section 10 as of
the Closing Date;
(iv) Authorizing resolutions or minutes from Seller
approving this Agreement and the transactions
contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not
a "foreign person" (as defined in Section
1445(f)(3) of the Code and the regulations issued
thereunder); and
(vi) Two (2) lease agreements, each lease agreement by
and between Buyer, as lessor, and Seller, as
lessee, and each lease agreement substantially in
the form of Exhibit E (the "Lease Agreements").
(b) At Closing, Buyer shall execute and/or deliver to Seller the
following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this
Agreement and the transactions contemplated herein;
and
(ii) A certificate from an officer of Buyer reasonably
acceptable to Seller confirming the accuracy of the
representations and warranties in Section 11 as of
the Closing Date;
(iii) The Purchase Note executed by a duly authorized
officer of Buyer;
(iv) Two (2) lease agreements, each lease agreement by
and between Buyer, as lessor, and Seller, as
lessee, and each lease agreement substantially in
the form of Exhibit E (the "Lease Agreements"); and
(v) The Assignment, Xxxx of Sale and Assumption
Agreement.
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(c) Seller's Closing Documents and Buyer's Closing Documents
shall be collectively called herein the "Closing Documents". Buyer and Seller
agree that such other documents as may be legally necessary or appropriate to
carry out the terms of this Agreement or as reasonably requested by the other
party shall be executed and delivered by the appropriate party at Closing.
10. Representations and Warranties of Seller.
----------------------------------------
As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows :
(a) Seller has good and marketable title to the Towers and the
Land (or such condition of title as will be insured by any reputable title
insurance company at their regular rates), and the Assets are free and clear of
liens, encumbrances, restrictions and security interests other than Permitted
Encumbrances.
(b) Seller has full power and authority to execute and deliver
this Agreement and Seller's Closing Documents, and to perform its obligations
hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Seller,
enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with, or
result in, a breach of the terms of any agreements or instruments to which the
Seller is a party or which would result in the creation or imposition of any
lien, charge or encumbrance on, or give to others any interest in or right to,
any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all
outstanding obligations for utilities and taxes through the Closing Date except
for such items as are covered by the proration of items of income and expense as
set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with,
any person, entity, or authority will be required in connection with the
execution and delivery of this Agreement or the transactions contemplated by
this Agreement.
(g) Assuming all consents and approvals required for Seller to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Seller's
compliance with, the terms and provisions of this Agreement will conflict with,
or result in, a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Seller, or any judgment, order,
injunction, decree, regulation, or ruling of any court or any other governmental
authority to which Seller is subject or any material agreement or contract to
which Seller is a party or to which it is subject, or constitute a material
default thereunder.
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(h) Seller is not a foreign person within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations
issued thereunder.
11. Representations and Warranties of Buyer.
---------------------------------------
As a material inducement to Seller to enter into this Agreement, Buyer
represents and warrants to Seller as follows:
(a) Buyer has full power and authority to execute and deliver
this Agreement and Buyer's Closing Documents, and to perform its respective
obligations hereunder and thereunder.
(b) This Agreement and Buyer's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Buyer enforceable
against Buyer, in accordance with their terms.
(c) Assuming all consents and approvals required for Buyer to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Buyer's
compliance with, the terms and provisions of this Agreement will conflict with
or result in a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Buyer or any judgment, order, injunction,
decree, regulation, or ruling of any court or any other governmental authority
to which Buyer is subject or any material agreement or contract to which Buyer
is a party or to which it is subject, or constitute a material default
thereunder.
12. Representations and Warranties Survive Closing.
----------------------------------------------
All of the provisions of this Agreement and of the Closing Documents
and all of the representations, warranties, considerations, and agreements
contained herein and in the Closing Documents shall survive Closing and continue
in full force and effect for a period of twelve (12) months from the Closing
Date; provided that if a claim for indemnification is made by either party under
Section 13 hereof within such twelve (12) month period, the provisions of
Section 13 shall survive until the resolution of such claim. No claim may be
brought under this Agreement unless written notice describing in reasonable
detail the nature of the claim is given on or prior to the last day of the
twelve (12) month period following the Closing Date.
13. Indemnification.
---------------
(a) For a period of one (1) year from the date of this Agreement,
Seller shall indemnify, defend, and hold Buyer, its affiliates, partners,
employees, officers, directors, agents, and representatives harmless from and
against any and all reasonable losses, costs, expenses, liabilities, penalties,
claims, and other damages including, but not limited to, reasonable attorney's
fees and other costs and expenses, including reasonable costs of investigation,
reasonably incurred and resulting from:
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(i) any breach of Seller's representations or
warranties, or the breach of any other provision
contained in this Agreement;
(ii) nonfulfillment by Seller of any of its covenants
or agreements contained herein or in any
Seller's Closing Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages
resulting from Sellers' operations or ownership
of the Tower Site prior to the Closing Date,
including any and all liabilities arising under
the Assets which relate to events occurring
prior to the Closing Date.
(b) For a period of one (1) year from the date of this
Agreement, Buyer shall indemnify, defend and hold Seller, its affiliates,
employees, officers, directors, agents and representatives harmless from and
against any and all losses, costs, expenses, liabilities, penalties, claims, and
other damages, including but not limited to, reasonable attorney's fees and
other costs and expenses, including reasonable costs of investigations,
reasonably incurred and resulting from:
(i) any breach of Buyer's representations or
warranties, or the breach of any other provision
contained in this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants
or agreements contained herein or in any Buyer's
Closing Document;
(iii) the Assumed Liabilities;
(iv) any and all losses, liabilities or damages
resulting from Buyer's operations or ownership
of the Tower Site subsequent to the Closing
Date, including any and all liabilities arising
under the Assets which related to events
occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified
Party") becomes aware of circumstances which would entitle such party to
indemnification by the other party hereunder (the "Indemnifying Party"), the
Indemnified Party shall give the Indemnifying Party prompt written notice, with
reasonable detail, of such claim. Upon receipt of such notice by the Indemnified
Party to the Indemnifying Party, the Indemnifying Party shall have the option of
defending against such pending litigation through engagement of legal counsel of
its choice, provided, however, that the Indemnifying Party's choice of legal
counsel must be acceptable to the Indemnified Party in its reasonable
discretion. In the event the Indemnifying Party elects to defend, the
Indemnifying Party shall keep the Indemnified Party fully informed on a timely
basis of the status of the pending litigation. In the event that the
Indemnifying Party elects to defend
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and is unsuccessful in such defense, it shall promptly pay to the Indemnified
Party any and all losses, costs, expenses, liabilities, penalties, claims and
other damages as described above, including but not limited to, reasonable
attorney's fees and other costs and expenses associated with the pending
litigation being so defended. In the event the Indemnifying Party elects not to
defend and the Indemnified Party defends, but is unsuccessful, then the
Indemnifying Party shall promptly pay to the Indemnified Party any and all
losses, costs, expenses, liabilities, penalties, claims and other damages, as
described above, including, but not limited to, reasonable attorney's fees and
other costs and expenses incurred, including reasonable costs of investigation.
In the event that Indemnifying Party elects not to defend and the Indemnified
Party defends successfully, then the Indemnifying Party shall promptly pay to
the Indemnified Party any and all costs and expenses incurred, including, but
not limited to, reasonable attorney's fees and other costs and expenses
incurred, including reasonable costs of investigation. The Indemnifying Party
shall reimburse the Indemnified Party upon demand for any payment made by the
Indemnified Party at any time after Closing, based on the final judgement of any
court of competent jurisdiction or pursuant to a bona fide compromise or
settlement of claims, demands or actions in respect to any damages to which the
foregoing indemnification relates.
(d) Limitations on Seller Indemnification. Notwithstanding
-------------------------------------
anything in this Agreement to the contrary, Seller's obligation to indemnify
Buyer shall be subject to all of the following limitations:
(i) The amount of any losses, costs, expenses, liabilities,
penalties, claims, and other damages ("Losses")
incurred by Buyer shall be reduced by (A) the amount
Buyer recovers (after deducting all attorneys' fees,
expenses, and other out-of-pocket costs of recovery)
from any insurer or other party liable for such Losses,
and Buyer shall use commercially reasonable efforts to
effect any such recovery and (B) any tax benefit
realized by Buyer or its owners as a result of any such
Loss.
(ii) Buyer shall be entitled to indemnification only for
Losses as to which Buyer has given Seller written
notice describing in reasonable detail the nature and
basis for such indemnification ("Notice of Claim") on
or prior to the first anniversary of the Closing Date.
(iii) Seller shall not be required to make any
indemnification under clause of Section 13(a) until the
aggregate amount of Losses resulting from or arising
out of the matters referred to in Section 13(a)(i)
exceeds Ten Thousand Dollars ($10,000.00); provided
that if the aggregate amount of such Losses exceeds
such amount, Seller shall be required to indemnify
Buyer for all Losses indemnifiable under Section
13(a)(i) without regard to such Ten Thousand Dollar
($10,000.00) limitation.
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(iv) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to fifty Thousand Dollars
($ 50,000.00) and Seller shall have no other liability
or responsibility for indemnification hereunder.
(e) Buyer's Exclusive Remedy. Subsequent to the Closing,
------------------------
indemnification under this Section 13 shall be the exclusive remedy of Buyer
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
(f) Limitation on Buyer's Indemnification. Notwithstanding
-------------------------------------
anything in this Agreement to the contrary, Buyer's obligation to indemnify
Seller shall be subject to all of the following limitations:
(i) The amount of any Losses incurred by Seller shall be
reduced by (A) the amount Seller recovers (after
deducting all attorneys' fees, expenses and other out-
of-pocket costs of recovery) from any insurer or other
party liable for such Losses, and Seller shall use
commercially reasonable efforts to effect any such
recovery and (B) any tax benefit realized by Buyer or
its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for
Losses as to which Seller has given Buyer a Notice of
Claim on or prior to the first anniversary of the
Closing Date.
(iii) Buyer shall not be required to make any indemnification
under clause (i) of Section 13(b) until the aggregate
amount of Losses resulting from or arising out of the
matters referred to in Section 13(b)(i) exceeds Ten
Thousand Dollars ($10,000.00); provided that if the
aggregate amount of such Losses exceeds such amount,
Buyer shall be required to indemnify Seller for all
Losses indemnifiable under Section 13(b)(i) without
regard to such Ten Thousand Dollar ($10,000.00)
limitation.
(iv) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Fifty Thousand Dollars
($50,000.00) and Buyer shall have no other liability or
responsibility for Indemnification hereunder.
(g) Seller's Exclusive Remedy. Subsequent to the Closing,
-------------------------
indemnification under this Section 13 shall be the exclusive remedy of Seller
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
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14. Termination; Liquidated Damages.
-------------------------------
(a) Right of Termination. This Agreement may be terminated prior
--------------------
to Closing:
(i) By written notice from a party that is not then in
material breach of this Agreement if:
(A) The other party has continued in material breach
of this Agreement for twenty (20) days after
written notice of such breach from the
terminating party;
(B) Closing does not occur by May 31, 2000 or such
other date as is mutually agreed to by Buyer and
Seller.
(b) Obligations Upon Termination.
----------------------------
(i) Upon termination of this Agreement, each party shall
thereafter remain liable for breach of this Agreement
prior to such termination and remain liable to pay and
perform any obligation under Section 13.
(ii) If Closing shall not have occurred, Seller's sole remedy
at law or in equity for any breach or default by Buyer
described in Section 14(a)(i)(A) shall be the
termination by Seller of this Agreement by giving of
written notice to Buyer pursuant to Section 14(a)(i)(A).
(c) Termination Notice. Each notice given by a party pursuant to
------------------
Section 14(a) to terminate this Agreement shall specify the subsection of
Section 14(a) pursuant to which such notice is given. If at the time a party
gives a termination notice, such party is entitled to give such notice pursuant
to more than one subsection of Section 14(a), the subsection pursuant to which
such notice is given and termination is effected shall be deemed to be the
subsection specified in such notice provided that the party giving such notice
is at such time entitled to terminate this Agreement pursuant to the specified
subsection.
15. Default; Disputes.
-----------------
If Seller fails to perform under this Agreement, the Buyer may
exercise any right he has against the Seller, including bringing an action for
specific performance. The remedies provided by this Section are in addition to
any right or remedies provided elsewhere in this Agreement or at law or in
equity. In the event a dispute arises between the Parties over the
interpretation of this Agreement, or the performance, alleged non-performance or
breach by either Party hereunder, the Parties hereby agree to seek resolution of
such dispute in good faith through an alternative dispute resolution process
mutually agreeable to the Parties prior to the institution of any legal
proceedings related thereto.
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16. Liabilities.
-----------
Buyer shall not, in connection with the purchase and sale of
Assets contemplating herein, assume any liabilities or obligations of the Seller
except as specifically set forth herein.
17. Third Party Brokerage.
---------------------
Seller and Buyer hereby represent and warrant to each other that
neither Seller or Buyer has dealt with any broker or finder in connection with
the transaction which is the subject of this Agreement. Each party hereby agrees
to indemnify, save harmless and defend the other from and against all claims,
losses, liabilities and expenses, including reasonable attorney's fees, arising
out of any claim made by any broker, finder or other intermediary who claims to
have dealt with such party in connection with the transaction which is the
subject of this Agreement. The provisions of the paragraph shall survive Closing
hereunder.
18. Entire Agreement.
-----------------
This Agreement (which includes the exhibits and schedules
attached hereto) constitutes the entire agreement between the Parties and there
are no other understandings, representations or warranties, oral or written,
relating to the subject matter hereof.
19. Amendment.
---------
This Agreement may not be changed, modified or amended, in whole
or in part, except in writing, signed by all parties.
20. Notice.
------
Notices given pursuant to this Agreement shall be in writing and
shall be given by actual delivery or by mailing the same to the party entitled
thereto at the addresses set forth below or at any such other address as any
Party may designate in writing to any other Party pursuant to the provisions of
this Section. Notice given by mail shall be sent by United States mail,
certified or registered, return receipt requested or by nationally recognized
courier serviced providing receipt of delivery. Notices shall be deemed to be
received on the date of actual receipt, in the case of personal delivery, or on
the date of mailing, in the case of mailing. Notices shall be served or mailed
to the following addresses, subject to change as provided above:
If to the Seller: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
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If to the Buyer: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
21. Construction.
------------
Whenever used in this Agreement the singular shall include the plural,
the plural the singular, and the use of any gender shall be applicable to all
genders.
22. Assignment and Recording.
------------------------
Seller hereby covenants not to assign or record this Agreement except
with the prior written consent of the Buyer. Buyer may assign this Agreement
freely to any affiliated entity, provided such assignment shall not relieve
Buyer of its obligations hereunder.
23. Binding Effect.
--------------
This Agreement and all of its terms and conditions shall extend to and
be binding upon the Parties hereto and upon their respective heirs, executors,
administrators, successors and assigns.
24. Further Assurances.
------------------
Seller and Buyer agree to execute and deliver any further documents or
assurances that in law or otherwise are necessary, desirable or proper to
consummate the transactions contemplated by this Agreement and to vest, perfect,
assign or confirm, of record or otherwise, in Buyer title to the Assets.
25. Governing Law.
-------------
This Agreement is made and shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
13
26. Headings.
--------
The headings and captions in this Agreement are for convenience only
and are not part of this Agreement.
27. Interpretation.
--------------
Neither this Agreement nor any provision contained herein shall be
interpreted for or against either party solely because that party or that
party's legal representative drafted the provision.
28. Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute the same
Agreement.
29. Severability.
------------
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then such provision shall be
severed from this Agreement and the remainder shall remain in full force and
effect.
30. Covenant of Seller.
------------------
Seller shall make all commercially reasonable efforts to resolve any
title or restriction issues prior to the Closing, but will continue these
efforts subsequent to the Closing to the extent reasonably necessary.
14
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound,
have caused this Agreement to be duly executed on the day and year first written
above.
SELLER:
XXXXXXX XX ACQUISITION CORP.
By: __________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By: __________________________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
INDEX OF EXHIBITS
-----------------
Exhibit A Description of Land and Towers
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Xxxx of Sale and
Assumption Agreement
Exhibit E Form of Lease Agreements
EXHIBIT A
---------
DESCRIPTION OF LAND AND TOWERS
WAEC-AM & WWWE-AM
Those two (2) certain two hundred seventy five (275) foot Utility G45 uniform
cross-section, series-excited, guyed triangular communications towers, servicing
WAEC-AM and WWWE-AM respectively, situated on that certain tract of land more
particularly described as follows:
[INSERT LEGAL DESCRIPTION]
EXHIBIT B
---------
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$448,210.00 December ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for
value received, promises to pay to the order of XXXXXXX XX ACQUISITION CORP., a
Delaware corporation, ("Payee"), the principal amount of Four Hundred Forty
Eight Thousand Two Hundred Ten Dollars ($448,210.00), together with accrued
interest thereon, calculated and payable as set forth below in this Note. The
principal and interest on this Note is payable in lawful money of the United
States of America in immediately available funds at such place in the United
States as Payee may from time to time designate in writing to Payor.
This Note is made pursuant to that certain Agreement of Sale (the
"Sale Agreement"), dated [December] ____, 2000, by and among Payor and Payee.
1. Payment of Principal and Interest.
---------------------------------
(a) Calculation and Payment of Interest. Interest on the
-----------------------------------
principal balance of this Note outstanding from time to time until paid in full
shall accrue at the rate of six and seventy-seven one hundredths percent (6.77%)
compounded annually (the "Rate"), computed on the basis of a 365 or 366-day
year, as appropriate, for the actual number of days elapsed, commencing on the
date hereof.
(b) Payments Prior to Maturity Date. On the first day of
-------------------------------
each month Maker shall pay in advance _________________ Dollars ($ _____.00).
All remaining principal, together with accrued and unpaid interest thereon shall
be due and payable on the "Maturity Date" (defined below). Each monthly payment
shall be credited first to interest then accrued and the remainder, if any, to
principal, and interest shall thereupon cease to accrue upon the principal paid.
(c) Payment on Maturity Date. The principal balance of, and
------------------------
any accrued and unpaid interest on, this Note shall be payable twenty (20) years
from the effective date of this Note (such date the "Maturity Date").
2. Prepayment.
----------
(a) Payor may, at its option at any time, without premium or
penalty, prepay all or any portion of this Note.
(b) Any prepayment of this Note shall be applied as follows:
first, to payment of accrued interest; and second, to payment of principal.
----- ------
3. Events of Default.
-----------------
The following shall constitute "Events of Default" under this
Note:
(a) Failure by Payor to make any payment required under
this Note when the same shall become due and payable (whether at maturity or
otherwise) and the continuation of such failure for a period of ninety (90)
days; or
(b) Payor pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it
or for all or any substantial portion of its
property or assets;
(iv) makes a general assignment for the benefit of its
creditors; or
(c) an involuntary case or proceeding is commenced against
Payor under any Bankruptcy Law and is not dismissed, bonded or discharged within
ninety (90) days thereafter, or a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary
case or proceeding;
(ii) appoints a Custodian of Payor or for all or
substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case
the order or decree remains unstayed and in
effect for ninety (90) days.
(d) The following terms used in this Note have the meaning,
assigned below:
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
--------------
similar federal, state or foreign law for the relief of debtors or any
arrangement, reorganization, assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of Payor.
"Custodian" means any receiver, trustee, assignee,
---------
liquidator, custodian or similar official under any Bankruptcy Law.
2
"Event of Default" means any of the occurrences specified in
----------------
Section 2 of this Note.
If any Event of Default shall have occurred and be continuing, Payee
may proceed to protect and enforce its rights either by suit in equity or by
action at law, or both, whether for specific performance of any provision of
this Note or in aid of the exercise of any power granted to Payee under this
Note.
4. Assignment.
----------
The holders of this Note may not assign or otherwise transfer all or
any portion of their rights and obligations under this Note to any other person
or entity, without the prior written consent of the Payor, which consent shall
not be unreasonably withheld.
5. Miscellaneous.
-------------
(a) Section Headings. The section headings contained in this
----------------
Note are for reference purposes only and shall not affect the meaning or
interpretation of this Note.
(b) Amendment and Waiver. No provision of this Note may be
--------------------
amended or waived unless Payor shall have obtained the written agreement of
Payee. No failure or delay in exercising any right, power or privilege hereunder
shall imply or otherwise operate as a waiver of any rights of Payee, nor shall
any single or partial exercise thereof preclude any other or future exercise
thereof or the exercise of any other right, power or privilege. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
(c) Successors, Assigns and Transferors. The foregoing, the
-----------------------------------
obligations of Payor and Payee under this Note shall be binding upon, and inure
to the benefit of, and be enforceable by, Payor and Payee, and their respective
successors and permitted assigns, whether or not so expressed.
(d) Governing Law. This Note shall be governed by, and construed
-------------
in accordance with, the laws of the State of Georgia, without giving effect to
any conflicts of laws principles thereof that would otherwise require the
application of the law of any other jurisdiction.
(e) Notices. Any notice, request, instruction or other document
-------
to be given hereunder by either party to the other shall be in writing and shall
be deemed given when received and shall be (i) delivered personally or (ii)
mailed by certified mail, postage prepaid, return receipt requested or (iii)
delivered by Federal Express or a similar overnight courier or (iv) sent via
facsimile transmission to the fax number given below, as follows:
3
If to Payor, addressed to:
Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Payee, addressed to:
Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other party.
4
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of
the date hereinabove first written.
XXXXXXX FAMILY TOWERS, INC.
By: _____________________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
5
EXHIBIT C
---------
FORM OF DEED
EXHIBIT D
---------
FORM OF ASSIGNMENT, XXXX OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Xxxx of Sale and Assumption Agreement (this "Agreement") is
made effective as of 12:01 a.m. Eastern Time, on the ____ day of [December,]
2000 by and between XXXXXXX XX ACQUISITION CORP. ("Seller") and XXXXXXX FAMILY
TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset
Purchase Agreement") dated as of [December __,] 2000 by and between Seller and
Purchaser. Capitalized terms used but not defined herein shall have the
meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell, convey
and assign to Purchaser all of Seller's right, title and interest to the Towers
and Tower Leases and Purchaser shall assume the Assumed Liabilities, as defined
in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows (capitalized terms used herein but not defined herein
shall have the meaning given to them in the Asset Purchase Agreement):
1. Seller hereby bargains, sells, conveys, assigns and delivers all
of Seller's right, title and interest in and to the Towers described in Exhibit
A of the Asset Purchase Agreement.
Item a. above is hereinafter referred to as the "Assigned Assets."
2. Purchaser hereby accepts the sale, conveyance and assignment of
the Assigned Assets, effective as of 12:01 a.m. Eastern Time on [December] __,
2000.
3. Purchaser hereby assumes and agrees to pay and perform the
Assumed Liabilities pursuant to Section 2 of the Asset Purchase Agreement,
effective as of 12:01 a.m. Eastern Time on [December] __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request
of the other party, promptly obtain, execute and deliver, or cause to be
obtained, executed and delivered, to the other party such assignments, bills of
sale, endorsements, and other such instruments or documents to be executed by
Seller or Purchaser, as the case may be, in addition to this Agreement, in form
and substance reasonably satisfactory to the other party, as such other party
may reasonably deem necessary or desirable so as (i) to vest in Purchaser title
to and possession of the Assigned Assets and (ii) to perfect and record, if
necessary, the sale, assignment, conveyance, transfer and delivery to Purchaser
of the Assigned Assets.
5. This Agreement is made pursuant to, and is subject to all of the
terms, representations, warranties and covenants of, the Asset Purchase
Agreement, the terms of which are hereby incorporated by reference. In the
event of any conflict between this Agreement and the Asset Purchase Agreement,
the terms of the Asset Purchase Agreement shall govern.
2
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the day and year first written above.
SELLER:
XXXXXXX XX ACQUISITION CORP.
By: __________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By: __________________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
EXHIBIT E
---------
FORM OF LEASE AGREEMENTS
LEASE AGREEMENT (O&O - WWWE-AM)
-------------------------------
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower described on Exhibit A
attached hereto (the "Towers"), together with other improvements on a certain
tract of real estate located in Atlanta, Georgia and described in Exhibit B
attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower
Site" shall also include any appurtenant easements or improvements on such land,
including, without limitation, any buildings or other structures);
3
WHEREAS, Lessor desires to lease the Tower Site and the Tower for the
purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Tower from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
LEASE COMMENCEMENT.
Commencement of Term. The term of this Lease and the payment of rent and other
performances in accordance with the terms of this Lease shall commence on the
date hereof.
Exhibits. All Exhibits referred to in this Lease are incorporated herein by
reference.
DESCRIPTION OF THE LEASEHOLD.
Leased Premises. Lessor hereby leases to Lessee, and Lessee leases from Lessor,
with a right of access thereto and parking therefor in accordance with Section
9:
The Tower for the purpose of the broadcast transmission of WWWE-AM,
------------------------------------------------------------------
Atlanta, Georgia;
----------------
Space in the transmitter building on the Tower Site, as such space is
---------------------------------------------------------------------
more fully described in Exhibit C hereto (the "Transmitter Building"), for the
------------------------------------------------------------------------------
purposes of the housing, operation and maintenance of Lessee's transmitter and
------------------------------------------------------------------------------
related equipment by Lessee in the Transmitter Building for the aforementioned
------------------------------------------------------------------------------
purposes immediately prior to the effective date of this Lease (such space
--------------------------------------------------------------------------
"Lessee's Building Space"); and
-------------------------------
The Tower Site.
--------------
All of the property leased under this Paragraph 2.01 shall hereinafter
----------------------------------------------------------------------
be called the "Leased Premises".
-------------------------------
Ownership of Property; Access.
4
Except for "Lessee's Property" (as defined below), all tenant
-------------------------------------------------------------
improvements including all fixtures and trade fixtures shall become the property
--------------------------------------------------------------------------------
of the Lessor, and shall remain with the Leased Premises after the Lessee
-------------------------------------------------------------------------
vacates same.
------------
The Lessee's antenna, transmission line, and other equipment, together
----------------------------------------------------------------------
with any replacements thereof and modifications and additions thereto, which are
--------------------------------------------------------------------------------
permitted hereunder, shall be and remain Lessee's Property, and are hereinafter
-------------------------------------------------------------------------------
referred to as "Lessee's Property". Lessee will be solely responsible for the
------------------------------------------------------------------------------
maintenance of Lessee's Property, including all expenses associated with such
-----------------------------------------------------------------------------
repair.
------
Lessee shall have reasonable right of access to the Leased Premises at
----------------------------------------------------------------------
all times in emergency situations and whenever reasonably necessary for
-----------------------------------------------------------------------
equipment maintenance and repair. Lessee shall also have reasonable rights of
------------------------------------------------------------------------------
access at any time to the Leased Premises for ingress, egress, utilities, the
-----------------------------------------------------------------------------
locating and usage of cabling and related equipment, operations, maintenance,
-----------------------------------------------------------------------------
repair or remodeling, or other engineering purposes.
----------------------------------------------------
PERMITTED USES.
By Lessee.
5
Subject to all appropriate government approvals, including the
--------------------------------------------------------------
Federal Communications Commission ("FCC"), the Leased Premises may be used only
-------------------------------------------------------------------------------
for activities related to the operation of radio broadcast stations. Such
--------------------------------------------------------------------------
operations, shall be conducted in accordance with the standards imposed by the
------------------------------------------------------------------------------
FCC and any other governmental body with authority over such transmission and
-----------------------------------------------------------------------------
operations.
-----------
Except as expressly permitted by this Lease and unless prior written
--------------------------------------------------------------------
approval of Lessor has been given, Lessee shall not construct or make any
-------------------------------------------------------------------------
improvements or install any equipment on the Tower. Lessee may repair and
--------------------------------------------------------------------------
maintain equipment as it reasonably deems necessary to its operations within
----------------------------------------------------------------------------
Lessee's Building Space in all respects in compliance with the terms hereof.
-----------------------------------------------------------------------------
Lessee shall maintain the Leased Premises, Lessee's interior and exterior
-------------------------------------------------------------------------
equipment, and all other improvements in an orderly and professional manner.
----------------------------------------------------------------------------
By Lessor.
Subject to the rights elsewhere granted to Lessee in this Lease and
-------------------------------------------------------------------
with prior notice to Lessee and no loss of service or interruption (beyond a
----------------------------------------------------------------------------
temporary, non-recurring and de minimis amount), Lessor reserves the right to
-----------------------------------------------------------------------------
use the Tower, at its own expense, as it sees fit and to fasten additional
--------------------------------------------------------------------------
equipment to the Tower for any purpose, including the right to install
----------------------------------------------------------------------
transmitting and/or receiving antennas of others; provided that Lessor shall use
--------------------------------------------------------------------------------
reasonable efforts to restrict any loss of Lessee's service or interruption
---------------------------------------------------------------------------
pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00 a.m.
-----------------------------------------------------------------------
Subject to the rights elsewhere granted to Lessee in this Lease,
----------------------------------------------------------------
Lessor shall have the right to use for itself or lease to others the remainder
------------------------------------------------------------------------------
of the Tower Site or use of any of the improvements thereon, space in any
-------------------------------------------------------------------------
building constructed by Lessor for any purpose, including, but not limited to,
------------------------------------------------------------------------------
any kind of broadcasting or communication, simultaneous transmissions on AM, FM,
--------------------------------------------------------------------------------
SSB, VBIF, UHF, and/or microwave frequencies, and all rental revenues received
------------------------------------------------------------------------------
therefrom shall belong exclusively to Lessor. Prior to permitting the fastening
--------------------------------------------------------------------------------
of a material amount of additional equipment, Lessor shall cause a structural
-----------------------------------------------------------------------------
analysis of the Tower to be conducted by a reputable mechanical consultant
--------------------------------------------------------------------------
chosen by Lessor in order to ensure that any such additions conform to
----------------------------------------------------------------------
recognized engineering standards.
---------------------------------
Except as expressly provided for herein, Lessor shall have no
-------------------------------------------------------------
liability for any action or omission taken in exercise of its rights hereunder
------------------------------------------------------------------------------
upon reasonable reliance on recommendation of its engineering personnel.
------------------------------------------------------------------------
Subject to the terms of this Lease, Lessor also reserves the right to
---------------------------------------------------------------------
erect one (1) or more additional towers on the Tower Site.
----------------------------------------------------------
TERM.
Term. This Lease shall have a term of twenty (20) years from the Commencement
Date established in Paragraph 1.01 hereof.
6
RENT.
Rental. Lessee shall pay rent for each consecutive twelve-month period beginning
on the Commencement Date (each a "Lease Year") during the term of this Lease.
Such rental payment shall be payable in equal and successive monthly
installments in advance beginning with the Commencement Date and continuing
thereafter on the first day of each month during the term of this Lease, such
rental payments to be made to the following schedule:
7
--------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
--------------------------------------------------------
1 $__________ $__________
--------------------------------------------------------
2 $__________ $__________
--------------------------------------------------------
3 $__________ $__________
--------------------------------------------------------
4 $__________ $__________
--------------------------------------------------------
5 $__________ $__________
--------------------------------------------------------
6 $__________ $__________
--------------------------------------------------------
7 $__________ $__________
--------------------------------------------------------
8 $__________ $__________
--------------------------------------------------------
9 $__________ $__________
--------------------------------------------------------
10 $__________ $__________
--------------------------------------------------------
11 $__________ $__________
--------------------------------------------------------
12 $__________ $__________
--------------------------------------------------------
13 $__________ $__________
--------------------------------------------------------
14 $__________ $__________
--------------------------------------------------------
15 $__________ $__________
--------------------------------------------------------
16 $__________ $__________
--------------------------------------------------------
17 $__________ $__________
--------------------------------------------------------
18 $__________ $__________
--------------------------------------------------------
19 $__________ $__________
--------------------------------------------------------
20 $__________ $__________
--------------------------------------------------------
Payment of Rentals. Rentals to be paid hereunder shall be paid monthly in lawful
money of the United States of America and shall be paid in advance on the first
day of each month during the term of this Lease by crediting the payment owed to
Lessee by Lessor under that certain Promissory Note made by Lessor in favor of
Lessee dated _______, 2000, on the first day of each month during the term of
this Lease. In the event of prepayment of the Promissory Note by Lessor or other
action resulting in amounts equal to any monthly rental payment not being
concurrently due from Lessor under the Promissory Note, then Lessee shall pay
the monthly rental amount in advance on the first day of the month in question
by mailing payment to the Lessor c/x Xxxxxxx Family Towers, Inc., 0000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attn: Ms. B. Xxxxxxxx Xxxxxxx, or to such
other person or address as Lessor may in writing direct. The payment of the
monthly rental for the first month of the term of this Lease shall be prorated
based on the number of days remaining in such month, including the first day on
which this Lease become effective.
Electricity and Other Utilities. In addition to the payments prescribed under
Section 5.01 of this Lease, Lessee shall pay for its own telephone lines and
service, electrical service (including electrical service to the Tower used by
Lessee as measured by a separate electrical meter at Lessee's expense). Lessor
shall pay for the electrical service to the Tower for the Tower lighting.
AUTHORITY.
Quiet Enjoyment. Lessor represents and warrants that it has the full power and
authority to enter into this Lease, and covenants and agrees that Lessee, upon
paying the rents described herein and observing and keeping the covenants,
agreements, and stipulations of this Lease on Lessee's part to be observed and
kept, shall lawfully, peaceably, and quietly hold, occupy, and enjoy the
8
Leased Premises, and all other rights and privileges granted herein, without
hindrance, eviction, or molestation by Lessor or any party claiming by or
through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the full power and
authority to enter into and perform this Lease. Any and all necessary corporate
resolutions, encumbrance certificates, etc., shall be supplied by Lessee upon
the request of Lessor.
PERMITS.
Permits. Lessor shall obtain all necessary licenses or permits in connection
with the Tower and Transmitter Building except that Lessee shall obtain, at its
own expense, any and all necessary licenses or permits from such governmental
authorities as shall have jurisdiction in connection with the (b) the
operations, installation, repair, alteration, or replacement of Lessee's
equipment (including, without limitation, Lessee's antenna and transmission
and/or receiving equipment); or (c) with any of Lessee's activities thereon or
contemplated by this Lease. At Lessor's request, Lessee shall furnish Lessor
with copies of same, and shall abide by the terms and provisions of such
licenses and permits.
MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
During Term of Lease.
9
Lessee, at its own cost and expense, shall maintain and repair Lessee's
-----------------------------------------------------------------------
Property, including specifically its antenna, related equipment, transmission
-----------------------------------------------------------------------------
lines, transmitters, and other equipment. Lessor shall perform the same tasks
------------------------------------------------------------------------------
with respect to the Tower and Transmitter Building. All such maintenance shall
--------------------------------------------------------------------------------
be conducted by the parties in accordance with good engineering standards and in
--------------------------------------------------------------------------------
conformity with the requirements of the FCC or any other body having
--------------------------------------------------------------------
jurisdiction over the Lessee and its property, including, without limitation,
---------------------------------------------------------------------------
any rules, regulations, or guidelines of the FCC implementing the National
--------------------------------------------------------------------------
Environmental Policy Act of 1969 pertaining to electromagnetic or radio
-----------------------------------------------------------------------
frequency radiation. Each of Lessor and Lessee shall take all reasonable
------------------------------------------------------------------------
precautions to avoid interference or hindrance to and with the operations of the
--------------------------------------------------------------------------------
other party hereto. In this regard, each party hereto agrees to eliminate,
--------------------------------------------------------------------------
without cost to the other party hereto, any interference or hindrance to such
-----------------------------------------------------------------------------
other party's operation. Maintenance and repair of Lessee's Property shall be
-----------------------------------------------------------------------------
performed only by a reputable contractor and in accordance with the provisions
------------------------------------------------------------------------------
of subsections (d), (e), and (f) hereof.
---------------------------------------
Lessor retains the right to inspect Lessee's Property during normal
-------------------------------------------------------------------
business hours upon reasonable notice to Lessee, except that, in the event of an
--------------------------------------------------------------------------------
emergency, as determined by Lessor, Lessor may enter at any time, giving notice
-------------------------------------------------------------------------------
of such emergency to Lessee as soon as is practical. In the event that Lessor
------------------------------------------------------------------------------
reasonably determines that Lessee has not maintained Lessee's Property and
--------------------------------------------------------------------------
equipment in good order and repair according to industry standards, and that
----------------------------------------------------------------------------
such repairs are necessary for the safety of the Tower, the Transmitter
-----------------------------------------------------------------------
Building, and the Tower Site, or the prevention of interference with Lessor or
------------------------------------------------------------------------------
any other user of the Towers or any other broadcaster, Lessor may, at its
-------------------------------------------------------------------------
option, make such emergency repairs to the Leased Premises as it deems
----------------------------------------------------------------------
reasonably necessary, and any amount expended by Lessor therefor shall be
-------------------------------------------------------------------------
reimbursed to it by Lessee immediately upon presentation of a statement and
---------------------------------------------------------------------------
shall be deemed additional rent. Lessor shall not be liable for inconvenience,
-------------------------------------------------------------------------------
disturbance, loss of business, or other damage to Lessee by reason of repairing
-------------------------------------------------------------------------------
any of Lessee's Property which Lessee has failed to properly maintain.
----------------------------------------------------------------------
With respect to the non-emergency repairs which Lessor, in its
--------------------------------------------------------------
reasonable discretion, determines that Lessee should make to maintain Lessee's
------------------------------------------------------------------------------
Property and equipment in good order, and that such repairs are necessary for
-----------------------------------------------------------------------------
the safety of the Tower, the Transmitter Building and the Tower Site, or the
----------------------------------------------------------------------------
prevention of interference with Lessor, in violation of the terms of this
-------------------------------------------------------------------------
Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance
-------------------------------------------------------------------------------
and repairs required to be performed by Lessee. In the event that, within ten
------------------------------------------------------------------------------
(10) business days following such written notice (or such longer period as may
------------------------------------------------------------------------------
be reasonably necessary taking into account all facts and circumstances), Lessee
--------------------------------------------------------------------------------
shall not have performed such maintenance and repairs, Lessor may, at its sole
------------------------------------------------------------------------------
option, make such repairs as it deems reasonably necessary, and any amount
--------------------------------------------------------------------------
expended by Lessor therefor shall be deemed additional rent. Lessor shall not
------------------------------------------------------------------------------
be liable for inconvenience, disturbance, loss of business, or other damage to
------------------------------------------------------------------------------
Lessee by reason of repairing the property and equipment of Lessee which Lessee
-------------------------------------------------------------------------------
has failed to properly maintain.
--------------------------------
10
No work (including electrical work), except for emergency repairs that
----------------------------------------------------------------------
Lessee shall perform to return to, or maintain the station on air in the event
------------------------------------------------------------------------------
of a failure, will be performed by the Lessee in connection with the
--------------------------------------------------------------------
installation, alteration, maintenance, repair, or removal of any of Lessee's
----------------------------------------------------------------------------
transmission lines, antenna, and other equipment on the Tower unless the Lessee
-------------------------------------------------------------------------------
submits to Lessor a copy of the proposed contract and also detailed plans and
-----------------------------------------------------------------------------
specifications of the work to be done, and both the contract and the plans and
------------------------------------------------------------------------------
specifications have been approved in writing by Lessor not to be unreasonably
-----------------------------------------------------------------------------
withheld, delayed or conditioned. Lessee, upon demand therefor by Lessor,
--------------------------------------------------------------------------
agrees to pay Lessor as additional rent all amounts reasonably expended by
--------------------------------------------------------------------------
Lessor in connection with review of any such contract, plans, and
-----------------------------------------------------------------
specifications.
---------------
With respect to any work to be performed by or on behalf of Lessee in
---------------------------------------------------------------------
connection with the installation, alteration, maintenance, repair, or removal of
--------------------------------------------------------------------------------
any equipment on the Tower (including any ascension of the Tower), in the
-------------------------------------------------------------------------
Transmitter Building, or in or about the Tower Site, Lessee may only employ a
-----------------------------------------------------------------------------
contractor who has been approved in writing and in advance by Lessor. Lessor
-----------------------------------------------------------------------------
agrees that it will not unreasonably withhold its approval of any contractor who
--------------------------------------------------------------------------------
has the requisite experience and industry standard insurance coverage and who
-----------------------------------------------------------------------------
will, at the sole option of Lessor, provide a bond to cover any work which it
-----------------------------------------------------------------------------
has been retained to perform. Lessor agrees to consult on call in any emergency
--------------------------------------------------------------------------------
situation and immediately give its approval or disapproval.
-----------------------------------------------------------
All work by or on behalf of the Lessee or Lessor shall be carried out
---------------------------------------------------------------------
(i) in a good and workmanlike manner; (ii) in accordance with established
-------------------------------------------------------------------------
engineering standards and public ordinances, rules, and regulations applicable
------------------------------------------------------------------------------
to such work, including, without limitation, any rules, regulations, or
-----------------------------------------------------------------------
guidelines of the FCC implementing the National Environmental Policy Act of
---------------------------------------------------------------------------
1969, pertaining to electromagnetic or radio frequency radiation; (iii) in
--------------------------------------------------------------------------
accordance with plans and specifications, including mechanical and electrical
-----------------------------------------------------------------------------
drawings, which have been submitted to and approved in writing and in advance by
--------------------------------------------------------------------------------
Lessor; and (iv) in accordance with Lessor's security procedures with respect to
--------------------------------------------------------------------------------
protection of the Tower Site.
-----------------------------
Notwithstanding the receipt of the approvals by Lessor as required in
---------------------------------------------------------------------
this paragraph, Lessee shall not be relieved of its responsibilities and
------------------------------------------------------------------------
liabilities for interference or otherwise as herein provided, nor shall said
----------------------------------------------------------------------------
approval be deemed a waiver of any other rights of Lessor under this Lease.
---------------------------------------------------------------------------
11
In the event that any notice of lien or lien shall be filed against
-------------------------------------------------------------------
any part of the Tower Site for work claimed to have been done or materials
--------------------------------------------------------------------------
claimed to have been furnished to Lessee, the same shall be dismissed,
----------------------------------------------------------------------
withdrawn, discharged or bonded (to Lessor's reasonable satisfaction) by Lessee
-------------------------------------------------------------------------------
within thirty (30) days thereafter at Lessee's expense; and if Lessee shall fail
--------------------------------------------------------------------------------
to take such action as shall cause such lien to be discharged within thirty (30)
--------------------------------------------------------------------------------
days, Lessor may, at its option, discharge the same by deposit or by bonding
----------------------------------------------------------------------------
proceedings. Lessor may require the lienor to prosecute the appropriate action
-------------------------------------------------------------------------------
to enforce the lienor's claim. In such case, Lessor shall give immediate notice
--------------------------------------------------------------------------------
to Lessee of such pending action or proceeding so that Lessee may have an
-------------------------------------------------------------------------
opportunity to legally contest or defend the action or proceeding. If, after
-----------------------------------------------------------------------------
such notice to Lessee, a judgment is recovered on the claim, Lessor, at its sole
--------------------------------------------------------------------------------
option, may pay the judgment. Any reasonable amount paid or expense incurred or
--------------------------------------------------------------------------------
sum of money paid by Lessor (including reasonable attorney's fees) by reason of
-------------------------------------------------------------------------------
the failure of Lessee to comply with the foregoing provisions of this paragraph,
--------------------------------------------------------------------------------
or in defending any such action, shall be paid to Lessor by Lessee, and shall be
--------------------------------------------------------------------------------
treated as additional rent hereunder.
-------------------------------------
At Expiration or Termination. At the expiration or termination of this Lease,
Lessee shall promptly surrender possession of the Leased Premises to Lessor in
as good a condition as the same were received at the commencement of the term,
reasonable wear and tear and damage by fire or other casualty beyond Lessee's
reasonable control excepted.
USE AND MAINTENANCE OF COMMON PREMISES.
Use of Common Premises. Lessee, at its own risk, shall have the right to use in
common with Lessor and its licensees, invitees, and other tenants, and in
connection with Lessee's permissible activities and operations (a) any access
road from any public highway to the Tower Site or to any building on the Tower
Site; (b) any parking lot on the Tower Site; and (c) all common areas in the
building (such items (a), (b) and (c) called collectively herein the "Common
Premises").
12
Maintenance of Common Premises.
Lessor shall maintain the Common Premises and any fence around the
------------------------------------------------------------------
Tower in good repair. Lessee shall comply with any security policies reasonably
--------------------------------------------------------------------------------
established from time to time by Lessor.
----------------------------------------
Lessor assumes the obligation and responsibility for complying with
-------------------------------------------------------------------
the requirements of the FCC regarding obstruction, marking and lighting of the
------------------------------------------------------------------------------
Tower. Lessor shall maintain the Tower and support systems in good repair and
------------------------------------------------------------------------------
in good operating condition in accordance with the requirements of governmental
-------------------------------------------------------------------------------
authorities.
------------
In the event that Lessor determines that repairs, alterations, or
-----------------------------------------------------------------
improvements are necessary or desirable to the Tower or any building or
-----------------------------------------------------------------------
structure constructed by Lessor on the Tower Site, any common areas, or the
---------------------------------------------------------------------------
leased spaces of other tenants, Lessor may, upon reasonable notice and for the
------------------------------------------------------------------------------
shortest practical period of time (except for emergency situations), close
--------------------------------------------------------------------------
entrance doors, common areas, drive-ways, rights-of-way, service areas, parking
-------------------------------------------------------------------------------
areas, or any other facilities at its discretion without being liable to Lessee;
--------------------------------------------------------------------------------
provided that if any of the above would restrict Lessee's ability to broadcast,
-------------------------------------------------------------------------------
Lessor shall use reasonable efforts to restrict any closure or interruption
---------------------------------------------------------------------------
pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00 a.m.. The
-------------------------------------------------------------------------
closing of entrances, doors, common areas, parking areas, or other facilities
-----------------------------------------------------------------------------
for the making of the repairs, alterations, or improvements described herein
----------------------------------------------------------------------------
shall, under no circumstances, constitute an eviction of the Lessee or be
-------------------------------------------------------------------------
grounds for termination of this Lease or the withholding of any rental payments
-------------------------------------------------------------------------------
or other payments or performances required to be paid or made by Lessee under
-----------------------------------------------------------------------------
the terms hereof, provided, Lessor shall use reasonable efforts to ensure that
------------------------------------------------------------------------------
any action taken in accordance with this paragraph shall not adversely affect
-----------------------------------------------------------------------------
the rights of Lessee hereunder. Under no such circumstances shall Lessee be
----------------------------------------------------------------------------
entitled to terminate this Lease nor shall it be entitled to compensation for
-----------------------------------------------------------------------------
any loss or damage it may sustain (including loss of use, loss of
-----------------------------------------------------------------
advertising/sponsorship revenues, and consequential damages) by reason of such
------------------------------------------------------------------------------
changes or alterations.
-----------------------
ALTERATIONS BY LESSEE.
Alterations.
13
Lessee shall have the right, at its own expense, to make such changes
---------------------------------------------------------------------
and alterations in the Lessee's Property situated on the Tower, subject to
--------------------------------------------------------------------------
Paragraph 8.01 and Paragraph 11 hereof, as its operations may require, including
--------------------------------------------------------------------------------
the renovation, replacement, or removal of its antenna; provided, however, that
-------------------------------------------------------------------------------
such changes or alterations conform with recognized engineering standards and,
------------------------------------------------------------------------------
if necessary, have been approved by the FCC and any other authority having
--------------------------------------------------------------------------
jurisdiction over Lessee; and provided further, that plans and specifications
-----------------------------------------------------------------------------
are first submitted to and approved in writing by Lessor. Lessee shall make no
------------------------------------------------------------------------------
changes in the equipment or equipment position without such approval, and Lessor
--------------------------------------------------------------------------------
shall not unreasonably fail to give such approval within ten (10) business days.
--------------------------------------------------------------------------------
This Lease is based upon carefully computed tower loading capacity.
--------------------------------------------------------------------
If any change proposed by Lessee in the type, location, or positioning of
-------------------------------------------------------------------------
Lessee's Property should, in Lessor's judgment, require a computer or other type
--------------------------------------------------------------------------------
of feasibility study to determine the loading capacity of the Tower, such study
-------------------------------------------------------------------------------
shall be performed by an engineer chosen by Lessor, and approved by Lessee (such
--------------------------------------------------------------------------------
approval not to be unreasonably withheld, delayed or conditioned) whose decision
--------------------------------------------------------------------------------
shall be final and binding upon both parties. The cost of such study or any
----------------------------------------------------------------------------
other costs reasonably incurred by Lessor in determining the feasibility of any
-------------------------------------------------------------------------------
proposed change or alteration in the type, location, or positioning of Lessee's
-------------------------------------------------------------------------------
Property shall be borne entirely by Lessee.
-------------------------------------------
INTERFERENCE.
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises
or on the Tower after the date hereof, notification of the particulars of such
proposed installation shall be submitted to Lessor hereto and any other lessees
or users of Tower space whose names and addresses are supplied to Lessee by
Lessor in writing, and the Lessor and such other users will be requested to
advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days
after receipt of such notification, whether they have any reasonable objections
thereto on the grounds that objectionable interference may result; provided,
this Section 11.01 shall not apply to any currently installed Lessee's Property
or its replacement, maintenance or repair. If the Lessor or any other user
shall reasonably object within this period to such plans and Lessee is unwilling
to alter its plans to meet the objections, the dispute shall be submitted to an
independent professional engineer chosen by Lessor, and such engineers decision
shall be final and binding upon all parties. The cost of any such studies shall
be borne by Lessee.
Interference with Lessor, Lessee, or Others. Notwithstanding the provisions of
Paragraph 11.01, should any change, after the date hereof, in the facilities or
mode of operation of Lessee or Lessee's failure to comply with the Maintenance
Standards, as defined in Paragraph 11.04, cause any objectionable electrical or
physical interference (including interference from any other structure erected
on the Tower Site) to the television and/or radio broadcasting and/or receiving
operations of any other lessee, then, promptly after written notification of
such interference, the Lessee, at its sole expense, will take such steps as may
be reasonably required to correct such interference, including, but not limited
to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filters or other equipment, provided that, if such
interference
14
is caused, after the date hereof, by the failure of the Lessor or any other
lessee suffering the interference to comply with the Maintenance Standards, as
defined in Paragraph 11.04, then Lessor shall, or shall cause the other lessee
suffering the interference, at its sole expense, to comply with such Maintenance
Standards. Any dispute as to the cause of interference, or the steps reasonably
required to correct it, arising under this Paragraph 11.02, shall be submitted
to an independent professional engineer chosen by Lessor, and such engineer's
decision shall be final and binding upon the parties. If such interference is
found to be caused by such changed facilities or operation, the fees and charges
of the engineer to whom the dispute is referred shall be borne by the party
whose changed facilities or mode of operations gave rise to the claimed
interference. If such interference is found not to be caused by such changed
facilities or operations, the fees and charges of the engineer to whom the
dispute is referred shall be borne by the objecting party. All other leases
and/or agreements to lease space at the Tower Site shall contain this language.
Interference by Other User. Any subsequent agreement under which Lessor allows
any other person to occupy any portion of the Tower, Tower Site or any building
shall provide that, should the installation, operation, or maintenance of the
equipment or the activities of such other person cause any objectionable
interference with the operations of Lessor or Lessee, then, promptly after
written notification of such, such other tenant or user, at its sole expense,
will take such steps as may be reasonably necessary to correct such
interference, including, but not limited to, changing frequency, ceasing
transmission, reducing power, and/or the installation of any filter or other
equipment, provided that if such interference is caused by the failure of any
other lessee to comply with the Maintenance Standards, as defined in Paragraph
11.04, such other lessee will, at its sole expense, comply with such Maintenance
Standards. To the best of its ability, Lessor shall not permit any operations by
other tenants, the effect of which would be to prohibit Lessee from operating in
the manner contemplated herein, without the prior written consent of Lessee.
Lessor shall have no liability for any action or omission taken upon reasonable
reliance on the recommendation of qualified engineering personnel. Lessor agrees
that it will take commercially reasonable efforts to ensure that the
installation, operation or maintenance of its equipment which is installed after
the commencement date of this Lease on, in or around the Tower, Tower Site [or
the Transmitter Building] shall not cause any objectionable interference with
the operations of Lessee. Immediately upon notification of such interference by
Lessee, Lessor shall at its sole expense take such steps as may be reasonably
necessary to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filter or other equipment.
Definition of "Maintenance Standards". For the purposes of this Lease,
compliance with "Maintenance Standards" shall mean that a tenant or user of the
Tower shall (a) maintain and operate its equipment in accordance with the
requirements, rules, regulations, and guidelines of the FCC, and the standards
of manufacturers of the equipment; and (b) maintain and operate its equipment in
accordance with good engineering practice.
UTILITIES.
Utilities. Subject to the required approvals and cooperation of any governmental
authority or public utilities, Lessee shall arrange and be responsible for the
installation and provision of
15
electrical and telephone lines serving Lessee's Property at any building on the
Tower Site owned by Lessor. Lessee shall be responsible for procurement of and
payment for all telephone services as described in Paragraph 5.03 and used by
Lessee.
TAXES.
Payment of Taxes. Lessee shall pay all real estate taxes, assessments, or levies
assessed or imposed against the Leased Premises. [Foregoing obligation is
subject to $200,000 12-month limit when aggregated with other borrowers under
Credit Agreement per 1.5D of First Amendment to Credit Agreement] Lessee shall
pay all personal property or other taxes assessed or imposed on Lessee's
Property, and shall cooperate with Lessor to ensure that such property is
properly separated from that of Lessor or other tenants for assessment purposes.
INSURANCE.
Public Liability. Lessee shall procure and maintain comprehensive public
liability insurance, naming Lessor as an additional insured as its interests
shall appear, covering all of the Lessee's operations and activities on the
Leased Premises, including but not limited to, the operations of contractors and
subcontractors and the operation of vehicles and equipment (including any
elevators in the Tower), with limits of liability for the term of this Lease of
not less than Five Million Dollars ($5,000,000.00) in the aggregate for personal
injury or death in any occurrence and not less than Five Million Dollars
($5,000,000.00) to cover property damage, with a liability umbrella of not less
than One Million Dollars ($1,000,000.00). Certificates evidencing such insurance
shall be furnished to Lessor upon its request. The amounts specified hereunder
shall be revised every five (5) years to such amounts as Lessor may reasonably
require upon the advice of its insurance consultants. [Foregoing obligation is
subject to $200,000 12-month limit when aggregated with other borrowers under
Credit Agreement per 1.5D of First Amendment to Credit Agreement].
Contractor Liability. Lessee shall also cause the contractors erecting,
installing, or maintaining Lessee's Property or performing any other work for
Lessee on the Tower Site to procure reasonable public liability insurance
acceptable to Lessor and naming the Lessee and Lessor as named insureds.
Certificates evidencing such insurance shall be furnished to Lessor in advance
of any work being performed.
Insurance on the Tower [and Transmitter Building.] Lessee shall procure and
maintain physical damage insurance on the Tower and any building on the Tower
Site used or leased by Lessee pursuant to this Lease in an amount sufficient to
repair or replace the Tower and any such building with such coverage to be on an
"All Risks" basis, including, without limitation, coverage for the perils of
fire, lightning, windstorm, hall, flood, earthquake, collapse, explosion,
aircraft and vehicle damage, vandalism, and malicious mischief. [Foregoing
obligation is subject to $200,000 12-month limit when aggregated with other
borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall be solely responsible for its insurance on Lessee's
Property, together with business interruption insurance.
16
Tower [and/or Transmitter Building Damage.] In the event that the Tower or the
Transmitter Building are destroyed or damaged by fire, lightning, windstorm,
flood, earthquake, explosion, collapse, aircraft, or other vehicle damage or
other casualty covered by insurance, Lessor shall promptly reconstruct or repair
the Tower [and/or the Transmitter Building] to such good condition as existed
before the destruction or damage, and give possession to Lessee of substantially
the same space leased hereunder. Lessee shall promptly pay over to Lessor any
insurance proceeds it receives from insurance policies Lessee is required to
procure under Section 14.03 hereof for the purpose of use by Lessor to fund
reconstruction of the Tower and/or Transmitter Building as required of Lessor
under this Section 14.04. If the Tower or the Transmitter Building are in need
of such repair or is so damaged by fire, lightning, windstorm, flood,
earthquake, explosion, aircraft or other vehicle damage, collapse, or other
casualty that reconstruction or repair cannot reasonably be undertaken without
dismantling Lessee's antenna, then upon written notice to Lessee, Lessor may
remove any such antenna and interrupt the signal activity of Lessee, but will
use its best efforts to have the antenna replaced as soon as reasonably
possible. Lessor agrees to provide Lessee an alternative tower or transmitter
building if available, during such reconstruction/repair period. If such towers
or space in another transmitter building on the Tower Site is not available,
then Lessee shall be responsible for procuring its own alternative towers. No
monetary or other rental shall be due pursuant to the terms of this Lease for
such time as Lessee is unable to conduct its broadcasting activities on the
Tower without significant diminution of signal quality as a result of such total
or partial destruction or damage or need of repair, and Lessor shall refund to
Lessee any rent paid in advance for such time. Should Lessor not either (a)
inform Lessee in writing within ninety (90) days of the date of destruction of
Lessor's intent to replace the Tower and/or Transmitter Building or (b) replace
the Tower [and/or Transmitter Building] within one (1) year if Lessor has
provided the notice described in clause (a) above, of the date of destruction,
or repair the same within such shorter time period after the casualty as may be
reasonable, then Lessee, upon thirty (30) days' written notice to Lessor, may
terminate this Lease, provided if Lessor has provided the notice described in
clause (a) above, Lessee must make such election within one hundred twenty (120)
days prior to the expiration of said repair or replacement period. Lessee agrees
that it shall maintain adequate business interruption insurance at all times
during the term of this Lease to adequately protect it from any interruption of
signal activities due to damage to the Tower (including costs of reinstallation
of its equipment and lines), and Lessor shall have no liability on account of
such business interruption or reinstallation costs due to damage or destruction
under this paragraph.
17
EMINENT DOMAIN.
In the event that the Tower Site (or any portion of the Tower Site
------------------------------------------------------------------
necessary for the Tower, Transmitter Building, guy wires, or other appurtenances
--------------------------------------------------------------------------------
necessary to Lessee's broadcasting operations) is acquired or transferred or
----------------------------------------------------------------------------
condemned pursuant to eminent domain proceedings (or the threat thereof), the
-----------------------------------------------------------------------------
obligation of the parties under this Lease shall be terminated as of the date of
--------------------------------------------------------------------------------
acquisition or transfer. Lessor shall be entitled to the entire condemnation
-----------------------------------------------------------------------------
award. If Lessor determines to build a new tower as a replacement for the Tower
--------------------------------------------------------------------------------
and/or the Transmitter Building on the condemned property, Lessor agrees to
---------------------------------------------------------------------------
lease to Lessee the new tower and/or transmitter building on terms reasonably
-----------------------------------------------------------------------------
equivalent to the terms of this Lease.
--------------------------------------
In the event that this Lease is terminated due to eminent domain
----------------------------------------------------------------
proceedings, then Lessee shall be relieved of any further obligations to make
-----------------------------------------------------------------------------
any rental payments or performances for any period after the date of such
-------------------------------------------------------------------------
termination of this Lease; and subject to offset or withholding by Lessor to
----------------------------------------------------------------------------
cover any unpaid additional rent or other authorized charges which may be owed
------------------------------------------------------------------------------
through the date of termination, Lessee shall be entitled to a refund of any
----------------------------------------------------------------------------
advance rental sums which it has paid in proportion to the period of the Lease
------------------------------------------------------------------------------
through such date of termination.
---------------------------------
SUCCESSORS AND ASSIGNMENT.
Successors. All rights and liabilities herein given to or imposed upon the
respective parties hereto shall, to the extent that such are assignable, extend
to and bind the several and respective successors and assigns of the parties
hereto.
Assignment. Lessee shall not assign, sublet, or transfer this Lease or any
interest therein, or permit or allow through any act or default of itself, or of
any other person, any transfer thereof by operations of law or otherwise without
the prior written consent of Lessor except:
18
Lessee may assign this Lease to any bona fide third party purchaser of
----------------------------------------------------------------------
substantially all the assets comprising of Lessee's radio station broadcasting
------------------------------------------------------------------------------
from the Tower Site, who shall execute an assignment and assumption agreement
-----------------------------------------------------------------------------
in form reasonably acceptable to Lessor; and
--------------------------------------------
Lessee may assign or transfer all or a portion of the assets of
---------------------------------------------------------------
Lessee, including this Lease, to any corporation controlling, controlled by, or
-------------------------------------------------------------------------------
under common control with, Lessee.
----------------------------------
Any assignment or subletting by Lessee except as permitted herein
-----------------------------------------------------------------
shall be void and of no effect. Any permitted assignment shall not relieve
---------------------------------------------------------------------------
Lessee of any of its liabilities hereunder. A change in control of Lessee, but
-------------------------------------------------------------------------------
not the mortgaging by Lessee of its rights hereunder, shall constitute an
-------------------------------------------------------------------------
assignment of this Lease. Lessor agrees to enter into documentation reasonably
-------------------------------------------------------------------------------
requested by any lender to Lessee in connection with Lessee's mortgaging of its
-------------------------------------------------------------------------------
rights hereunder.
-----------------
Lessor may assign or transfer this Lease without the consent of
---------------------------------------------------------------
Lessee, but shall notify Lessee following any transfer or assignment.
---------------------------------------------------------------------
RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the event either
party elects to terminate this Lease in accordance with the provisions herein or
at the expiration of the term hereof, Lessee or its mortgagee shall have the
right to remove Lessee's Property, except any fixtures (it being specifically
understood and agreed that Lessee's antenna, transmitters, transmission line,
and similar broadcasting equipment shall not be deemed fixtures) on the Leased
Premises within thirty (30) days of such termination. Such removal shall be
conducted in accordance with Paragraph 8.01 hereof Lessee shall promptly repair
any and all damage caused by such removal. Any of Lessee's Property remaining on
the Leased Premises after the expiration of the thirty (30) day period shall be
deemed to be the property of Lessor, which Lessor may have removed at Lessee's
expense.
19
LESSOR'S PROTECTION.
Default by Lessee.
If Lessee shall make default in making any payment herein provided
------------------------------------------------------------------
for and any such default shall continue for a period of ten (10) business days
------------------------------------------------------------------------------
after written notice to Lessee, or if Lessee shall make default in the
----------------------------------------------------------------------
performance of any obligation of Lessee herein (other than as to payment of
---------------------------------------------------------------------------
money) and any such default shall continue for a period of thirty (30) days
---------------------------------------------------------------------------
after written notice to Lessee, or if Lessee shall file a voluntary petition in
-------------------------------------------------------------------------------
bankruptcy, or if Lessee shall file any petition or institute any proceedings
-----------------------------------------------------------------------------
under any Insolvency or Bankruptcy Act or any amendment thereto hereafter made,
-------------------------------------------------------------------------------
seeking to effect its reorganization or a composition with its creditors, or if,
--------------------------------------------------------------------------------
in any proceedings based on the insolvency of Lessee or relating to bankruptcy
------------------------------------------------------------------------------
proceedings, a receiver or trustee shall be appointed for Lessee or the Leased
------------------------------------------------------------------------------
Premises, or if any proceedings shall be commenced for the reorganization of
----------------------------------------------------------------------------
Lessee (which, in the case of involuntary proceedings, are not dismissed or
---------------------------------------------------------------------------
stayed within 30 days of the commencement thereof), or if the leasehold estate
------------------------------------------------------------------------------
created hereby shall be taken on execution or by any process of law, or if
--------------------------------------------------------------------------
Lessee shall admit in writing its inability to pay its obligations generally as
-------------------------------------------------------------------------------
they become due, then Lessor may, at its option, terminate this Lease without
-----------------------------------------------------------------------------
notice, and declare all amounts due or to become due hereunder immediately due
------------------------------------------------------------------------------
and payable, and Lessor's agents and servants may immediately, or any time
--------------------------------------------------------------------------
thereafter, reenter the Leased Premises by reasonably necessary force, summary
------------------------------------------------------------------------------
proceedings, or otherwise, and remove all persons and properly therein, without
-------------------------------------------------------------------------------
being liable to indictment, prosecution, or damage therefor, and Lessee hereby
------------------------------------------------------------------------------
expressly waives the service of any notice in writing of intention to reenter
-----------------------------------------------------------------------------
said Leased Premises. Lessor may, in addition to any other remedy provided by
------------------------------------------------------------------------------
law or permitted herein, at its option, relet the Leased Premises (or any part
------------------------------------------------------------------------------
thereof) on behalf of Lessee, applying any monies collected first to the payment
--------------------------------------------------------------------------------
of expenses of resuming or obtaining possession, and, second, to the payment of
-------------------------------------------------------------------------------
the costs of placing the premises in rentable condition, including any leasing
------------------------------------------------------------------------------
commission, and, third, to the payment of rent due hereunder, and any other
---------------------------------------------------------------------------
damages due to the Lessor. Any surplus remaining thereafter shall be paid to
-----------------------------------------------------------------------------
Lessee, and Lessee shall remain liable for any deficiency in rental, the amount
-------------------------------------------------------------------------------
of which deficiency shall be paid upon demand therefor to Lessor.
-----------------------------------------------------------------
Should Lessor re-enter and terminate according to the provisions of
-------------------------------------------------------------------
this subparagraph, Lessor may remove and store the Lessee's Property at the
---------------------------------------------------------------------------
expense and for the account of Lessee. Alternatively, Lessor may sell, or cause
--------------------------------------------------------------------------------
to be sold, Lessee's Property at public sale to the highest bidder for cash, and
--------------------------------------------------------------------------------
remove from the proceeds of such sale any rent or other payment then due Lessor
-------------------------------------------------------------------------------
under this Lease. Any disposition of the Lessee's Property pursuant thereto
----------------------------------------------------------------------------
shall be subject to the rights of any lender to Lessee holding a mortgage on
----------------------------------------------------------------------------
Lessee's Property and shall be made in a manner that is commercially reasonable
-------------------------------------------------------------------------------
within the meaning of the Uniform Commercial Code as in effect in the State of
------------------------------------------------------------------------------
Georgia at the time of such disposition.
----------------------------------------
INDEMNIFICATION.
20
Each party warrants and represents that it has the authority to enter
---------------------------------------------------------------------
into this Lease and to grant the rights it grants hereunder, and that
---------------------------------------------------------------------
performance of its obligations pursuant to this Lease will not violate the
--------------------------------------------------------------------------
rights of any third party whatsoever. Lessee agrees to indemnify and defend
----------------------------------------------------------------------------
Lessor against any claim for damages, losses, liabilities, costs, or expenses,
------------------------------------------------------------------------------
including reasonable attorney's fees, arising (a) out of any breach by Lessee of
--------------------------------------------------------------------------------
its warranties, representations, or covenants under this Lease; (b) out of the
------------------------------------------------------------------------------
use, management, or occupancy of the Leased Premises by Lessee, its agents, or
------------------------------------------------------------------------------
invitees; (c) out of any omissions, negligence or willful misconduct of Lessee,
-------------------------------------------------------------------------------
its agents, servants, employees, licensees, or invitees; (d) out of failure of
------------------------------------------------------------------------------
Lessee to comply with any laws, statutes, ordinances, or regulations; (e) out of
--------------------------------------------------------------------------------
Lessee's failure to maintain equipment in proper working order; and (f) out of
------------------------------------------------------------------------------
Lessee's failure to comply with any of its other obligations under the terms of
-------------------------------------------------------------------------------
this Lease.
-----------
(b) Lessor agrees to indemnify and defend Lessee against any
--------------------------------------------------------
claim for damages, losses, liabilities, costs, or expenses, including reasonable
--------------------------------------------------------------------------------
attorney's fees, arising (a) out of any breach by Lessor of its warranties,
---------------------------------------------------------------------------
representations, or covenants under this Lease; (b) out of the use, management,
-------------------------------------------------------------------------------
or occupancy of the Leased Premises by Lessor, its agents, or invitees; (c) out
-------------------------------------------------------------------------------
of any omissions, negligence or willful misconduct of Lessor, its agents,
-------------------------------------------------------------------------
servants, employees, licensees, or invitees; (d) out of failure of Lessor to
----------------------------------------------------------------------------
comply with any laws, statutes, ordinances, or regulations; (e) out of Lessor's
-------------------------------------------------------------------------------
failure to maintain equipment in proper working order; and (f) out of Lessor's
------------------------------------------------------------------------------
failure to comply with any of its other obligations under the terms of this
---------------------------------------------------------------------------
Lease.
------
Any party seeking indemnification hereunder ("Indemnified Party")
-----------------------------------------------------------------
shall provide the other party ("Indemnifying Party") reasonably prompt notice of
--------------------------------------------------------------------------------
known claims giving rise to any claim for indemnity, and the Indemnifying Party
-------------------------------------------------------------------------------
shall have the right and opportunity to undertake the legal defense of such
---------------------------------------------------------------------------
claims. The Indemnified Party and its counsel may nevertheless participate in
------------------------------------------------------------------------------
(but not control) such proceedings, negotiations, or defense at its own expense.
--------------------------------------------------------------------------------
In all such cases, the Indemnified Party will give all reasonable assistance to
-------------------------------------------------------------------------------
the Indemnifying Party, including making the Indemnified Party's employees and
------------------------------------------------------------------------------
documents available as reasonably requested without charge.
-----------------------------------------------------------
ESTOPPEL CERTIFICATE AND ATTORNMENT.
Estoppel Certificate. Within ten (10) days after either party's request, the
other party shall deliver, executed in recordable form, a declaration to any
person designated by the requesting party (a) ratifying this Lease; (b) stating
the commencement and termination dates; and (c) certifying (i) that this Lease
is in full force and effect, and has not been assigned, modified, supplemented,
or amended (except by such writings as shall be stated); (ii) that all
conditions under this Lease to be performed have been satisfied (stating
exceptions, if any); (iii) that no defenses or offsets against the enforcement
of this Lease by the requesting party exist (or stating those claimed); (iv)
advance rent, if any, paid by Lessee; (v) the date to which rent has been paid;
(vi) the amount of security deposited with Lessor (if hereafter applicable for
any reason); and (vii) such other information as the requesting party reasonably
requires. Persons receiving such statements shall be entitled to rely upon them.
21
Attornment. Lessee shall, in the event of a sale or assignment of Lessor's
interest in any of the Leased Premises, or, if any of the Leased Premises or any
building thereon comes into the hands of any Trustee under a Deed of Trust or a
mortgagee or any other person, whether because of a foreclosure, exercise of a
power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the
purchaser or such mortgagee, Trustee, or other person, and recognize the same as
Landlord hereunder. Lessee shall execute at Lessor's request any attornment
agreement reasonably required by any mortgagee, Trustee, or other such person to
be executed containing such provisions as such mortgagee, Trustee, or other
person reasonably requires, provided, however, that such attornment shall not
modify the terms of this Lease.
Failure to Execute Instruments. Either party's failure, without good and
reasonable cause, to execute instruments or certificates provided for in this
Paragraph 20, within fifteen (15) days after the receipt by such party of a
written request, shall be a default under his Lease.
MISCELLANEOUS.
Relationship of Parties. Nothing contained herein and no acts of the parties
herein shall be deemed or construed as creating any relationship between the
parties hereto other than the relationship of Lessor and Lessee or Landlord and
Tenant.
Governing Law. This Lease shall be governed and construed and enforced in
accordance with the laws of the State of Georgia.
Captions. The captions contained in this Lease are included solely for
convenience and shall in no event affect or be used in connection with the
interpretation of this Lease.
Amendments. This Lease only may be amended or modified as may be agreed upon by
written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or payable under this Lease,
including all money expended pursuant to the provisions hereof or on account of
any default in the performance and observance of any agreements or covenants
herein, shall bear interest at the rate of eight and one-half percent (8.5%) per
annum (or at such lesser rate which is the maximum permitted by applicable law)
from thirty (30) days after the date such sums become due or payable, or, in the
event one of the parties expends money because of a default by the other, from
thirty (30) days after the date the defaulting party received written notice
that such money was expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not had dealings
with any real estate broker or other person who may claim a commission or
finder's fee with respect to this Lease in any manner. Each party shall hold
harmless the other party from all damages resulting from any claims that may be
asserted against the Indemnified Party by any broker, finder, or other person
with whom the Indemnifying Party has or purportedly has dealt.
22
Notices. Notices given pursuant to this Lease shall be in writing and shall be
given by actual delivery or by mailing the same to the party entitled thereto at
the addresses set forth below or at any such other address as any Party may
designate in writing to any other Party pursuant to the provisions of this
paragraph. Notice given by mail shall be sent by United States mail, certified
or registered, return receipt requested or by nationally recognized courier
serviced providing receipt of delivery. Notices shall be deemed to be received
on the date of actual receipt, in the case of personal delivery, or on the date
of mailing, in the case of mailing. Notices shall be served or mailed to the
following addresses, subject to change as provided above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: 941) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
Waiver. It is agreed that the waiving of any of the covenants of this Lease by
either party shall be limited to the particular instance, and shall not be
deemed to waive any other breaches of such covenant or any provision herein
contained.
Accord and Satisfaction. No receipt of money by Lessor after the termination of
this Lease or after the service of any notice or after the commencement of any
suit reinstates, continues, or extends the term of this Lease or affects any
such notice or suit.
Limitation of Liability. Except as otherwise expressly stated herein, Lessor
shall not be liable or responsible to the Lessee or to anyone claiming under or
through the Lessee for any loss or
23
damage caused by the acts or omissions of any other tenants or any other users
of the Tower, Transmitter Building, or Tower Site, or for any loss or damage to
Lessee's Property caused by fire, water, bursting pipes, leaking gas, sewage,
steam pipes, drains, ice, or materials falling from the Tower, or the
malfunction of any utility, facility, or installation, or by reason of any other
existing condition or defect in the Leased Premises; nor shall Lessor be liable
or responsible to the Lessee for any injury or damage suffered by the Lessee and
allegedly caused by technical interference with the Lessee's operations, by the
activities of any other tenants or users of the Tower, Transmitter Building, and
Tower Site, or any other broadcasters. Except for Lessor's own negligent acts,
willful misconduct or for breaches of its obligations under this Agreement,
Lessor shall not be liable to Lessee, or to any other person for property damage
or personal injury, including death. Lessor shall not be liable under any
circumstances for loss of use, loss of sponsorship or advertising revenue, or
any other consequential damages sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or phrase contained
in this Lease shall not serve to render the balance of this Lease ineffective or
void; and the same shall be construed as if such had not been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary stamps
occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such rules and
regulations in writing which it may consider necessary and desirable. Lessee
agrees to abide by such rules and regulations so long as they do not
unreasonably interfere with Lessee's use and occupancy of the Leased Premises or
conflict with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or damages to
Lessee's Property caused by acts of God, including, but not limited to, wind,
lightning, rain, ice, earthquake, floods, or rising water, or by aircraft or
vehicle damage. Lessor furthermore assumes no responsibility for losses or
damages to Lessee's Property caused by any person other than employees and
agents of Lessor. In the event that Lessor shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of acts
of God (including, but not limited to, wind, lightning, rain, ice, earthquake,
flood, or rising water), aircraft or vehicle damage or other casualty,
unforeseen soil conditions, acts of third parties who are not employees of
Lessor, strikes, lock-outs, labor troubles, inability to procure material,
failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of delay and the period for performance
of any such act shall be extended for a period equivalent to the period of such
delay.
Entire Agreement. This Lease, together with its Exhibits, constitutes and sets
forth the entire agreement and understanding of the parties with respect to the
subject matter hereof, and supersedes all prior or contemporaneous offers,
negotiations, and agreements (whether oral or written) between the parties (or
any of their related entities) concerning the subject matter of this Lease.
24
Counterparts and Duplicates. This Lease may be executed in counterparts, which,
when combined, shall constitute a single instrument. The Lease may also be
executed in duplicate editions, each of which shall be effective as an original.
25
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
_________________________ By: _____________________________(SEAL)
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX XX ACQUISITION CORP.
_________________________ By: _____________________________(SEAL)
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
26
EXHIBIT A
---------
DESCRIPTION OF TOWERS
WWWE-AM
One (1) two hundred seventy five (275) foot Utility Gas Uniform cross-section
series excited guyed triangular communication tower used in the operation of
WWWE-AM situated on that certain tract of land more particularly described on
Exhibit B herein.
27
EXHIBIT B
---------
DESCRIPTION OF TOWER SITE
WWWE-AM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
28
EXHIBIT C
---------
[TRANSMITTER BUILDING DIAGRAM OR DESCRIPTION]
29
LEASE AGREEMENT (O&O - WAEC-AM)
--------------------------------
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns one (1) communications tower described on Exhibit
A attached hereto (the "Tower"), together with other improvements on a certain
tract of real estate located in Atlanta, Georgia and described on Exhibit B
attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower
Site" shall also include any appurtenant easements or improvements on such land,
including, without limitation, any buildings or other structures);
WHEREAS, Lessor desires to lease the Tower Site and the Tower for the
purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Tower from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
20. LEASE COMMENCEMENT.
20.01 Commencement of Term. The term of this Lease and the payment
of rent and other performances in accordance with the terms of this Lease shall
commence on the date hereof.
20.02 Exhibits. All Exhibits referred to in this Lease are
incorporated herein by reference.
21. DESCRIPTION OF THE LEASEHOLD.
21.01 Leased Premises. Lessor hereby leases to Lessee, and Lessee
leases from Lessor, with a right of access thereto and parking therefor in
accordance with Section 9:
30
(a) The Tower for the purpose of the broadcast transmission
-------------------------------------------------------
of WAEC-AM, Atlanta, Georgia;
-----------------------------
(b) Space in the transmitter building on the Tower Site, as
-------------------------------------------------------
such space is more fully described in Exhibit C hereto (the "Transmitter
------------------------------------------------------------------------
Building"), for the purposes of the housing, operation and maintenance of
-------------------------------------------------------------------------
Lessee's transmitter and related equipment by Lessee in the Transmitter Building
--------------------------------------------------------------------------------
for the aforementioned purposes immediately prior to the effective date of this
-------------------------------------------------------------------------------
Lease (such space "Lessee's Building Space"); and
-------------------------------------------------
(c) The Tower Site.
---------------
(d) All of the property leased under this Paragraph 2.01
----------------------------------------------------
shall hereinafter be called the "Leased Premises".
--------------------------------------------------
21.02 Ownership of Property; Access.
(a) Except for "Lessee's Property" (as defined below), all
------------------------------------------------------
tenant improvements including all fixtures and trade fixtures shall become the
------------------------------------------------------------------------------
property of the Lessor, and shall remain with the Leased Premises after the
---------------------------------------------------------------------------
Lessee vacates same.
--------------------
(b) The Lessee's antenna, transmission line, and other
--------------------------------------------------
equipment, together with any replacements thereof and modifications and
-----------------------------------------------------------------------
additions thereto, which are permitted hereunder, shall be and remain Lessee's
------------------------------------------------------------------------------
Property, and are hereinafter referred to as "Lessee's Property". Lessee will be
--------------------------------------------------------------------------------
solely responsible for the maintenance of Lessee's Property, including all
--------------------------------------------------------------------------
expenses associated with such repair.
-------------------------------------
(c) Lessee shall have reasonable right of access to the
---------------------------------------------------
Leased Premises at all times in emergency situations and whenever reasonably
----------------------------------------------------------------------------
necessary for equipment maintenance and repair. Lessee shall also have
----------------------------------------------------------------------
reasonable rights of access at any time to the Leased Premises for ingress,
---------------------------------------------------------------------------
egress, utilities, the locating and usage of cabling and related equipment,
---------------------------------------------------------------------------
operations, maintenance, repair or remodeling, or other engineering purposes.
-----------------------------------------------------------------------------
22. PERMITTED USES.
22.01 By Lessee.
31
(a) Subject to all appropriate government approvals,
------------------------------------------------
including the Federal Communications Commission ("FCC"), the Leased Premises may
--------------------------------------------------------------------------------
be used only for activities related to the operation of radio broadcast
-----------------------------------------------------------------------
stations. Such operations, shall be conducted in accordance with the standards
------------------------------------------------------------------------------
imposed by the FCC and any other governmental body with authority over such
---------------------------------------------------------------------------
transmission and operations.
----------------------------
(b) Except as expressly permitted by this Lease and unless
------------------------------------------------------
prior written approval of Lessor has been given, Lessee shall not construct or
------------------------------------------------------------------------------
make any improvements or install any equipment on the Tower. Lessee may repair
------------------------------------------------------------------------------
and maintain equipment as it reasonably deems necessary to its operations within
--------------------------------------------------------------------------------
Lessee's Building Space in all respects in compliance with the terms hereof.
----------------------------------------------------------------------------
Lessee shall maintain the Leased Premises, Lessee's interior and exterior
-------------------------------------------------------------------------
equipment, and all other improvements in an orderly and professional manner.
----------------------------------------------------------------------------
22.02 By Lessor.
(a) Subject to the rights elsewhere granted to Lessee in
----------------------------------------------------
this Lease and with prior notice to Lessee and no loss of service or
--------------------------------------------------------------------
interruption (beyond a temporary, non-recurring and de minimis amount), Lessor
------------------------------------------------------------------------------
reserves the right to use the Tower, at its own expense, as it sees fit and to
------------------------------------------------------------------------------
fasten additional equipment to the Tower for any purpose, including the right to
--------------------------------------------------------------------------------
install transmitting and/or receiving antennas of others; provided that Lessor
------------------------------------------------------------------------------
shall use reasonable efforts to restrict any loss of Lessee's service or
------------------------------------------------------------------------
interruption pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00
-------------------------------------------------------------------------------
a.m.
----
(b) Subject to the rights elsewhere granted to Lessee in
----------------------------------------------------
this Lease, Lessor shall have the right to use for itself or lease to others the
--------------------------------------------------------------------------------
remainder of the Tower Site or use of any of the improvements thereon, space in
-------------------------------------------------------------------------------
any building constructed by Lessor for any purpose, including, but not limited
------------------------------------------------------------------------------
to, any kind of broadcasting or communication, simultaneous transmissions on AM,
--------------------------------------------------------------------------------
FM, SSB, VBIF, UHF, and/or microwave frequencies, and all rental revenues
-------------------------------------------------------------------------
received therefrom shall belong exclusively to Lessor. Prior to permitting the
------------------------------------------------------------------------------
fastening of a material amount of additional equipment, Lessor shall cause a
----------------------------------------------------------------------------
structural analysis of the Tower to be conducted by a reputable mechanical
--------------------------------------------------------------------------
consultant chosen by Lessor in order to ensure that any such additions conform
------------------------------------------------------------------------------
to recognized engineering standards.
------------------------------------
(c) Except as expressly provided for herein, Lessor shall
-----------------------------------------------------
have no liability for any action or omission taken in exercise of its rights
----------------------------------------------------------------------------
hereunder upon reasonable reliance on recommendation of its engineering
-----------------------------------------------------------------------
personnel.
----------
(d) Subject to the terms of this Lease, Lessor also reserves
--------------------------------------------------------
the right to erect one (1) or more additional towers on the Tower Site.
-----------------------------------------------------------------------
23. TERM.
23.01 Term. This Lease shall have a term of twenty (20) years from
the Commencement Date established in Paragraph 1.01 hereof.
32
24. RENT.
24.01 Rental. Lessee shall pay rent for each consecutive twelve-month
period beginning on the Commencement Date (each a "Lease Year") during the term
of this Lease. Such rental payment shall be payable in equal and successive
monthly installments in advance beginning with the Commencement Date and
continuing thereafter on the first day of each month during the term of this
Lease, such rental payments to be made to the following schedule:
33
--------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
--------------------------------------------------------------
1 $__________ $__________
--------------------------------------------------------------
2 $__________ $__________
--------------------------------------------------------------
3 $__________ $__________
--------------------------------------------------------------
4 $__________ $__________
--------------------------------------------------------------
5 $__________ $__________
--------------------------------------------------------------
6 $__________ $__________
--------------------------------------------------------------
7 $__________ $__________
--------------------------------------------------------------
8 $__________ $__________
--------------------------------------------------------------
9 $__________ $__________
--------------------------------------------------------------
10 $__________ $__________
--------------------------------------------------------------
11 $__________ $__________
--------------------------------------------------------------
12 $__________ $__________
--------------------------------------------------------------
13 $__________ $__________
--------------------------------------------------------------
14 $__________ $__________
--------------------------------------------------------------
15 $__________ $__________
--------------------------------------------------------------
16 $__________ $__________
--------------------------------------------------------------
17 $__________ $__________
--------------------------------------------------------------
18 $__________ $__________
--------------------------------------------------------------
19 $__________ $__________
--------------------------------------------------------------
20 $__________ $__________
--------------------------------------------------------------
24.02 Payment of Rentals. Rentals to be paid hereunder shall be paid
monthly in lawful money of the United States of America and shall be paid in
advance on the first day of each month during the term of this Lease by
crediting the payment owed to Lessee by Lessor under that certain Promissory
Note made by Lessor in favor of Lessee dated _______, 2000, on the first day of
each month during the term of this Lease. In the event of prepayment of the
Promissory Note by Lessor or other action resulting in amounts equal to any
monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Towers, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Ms. B. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may
in writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
24.03 Electricity and Other Utilities. In addition to the payments
prescribed under Section 5.01 of this Lease, Lessee shall pay for its own
telephone lines and service, electrical service (including electrical service to
the Tower used by Lessee as measured by a separate electrical meter at Lessee's
expense). Lessor shall pay for the electrical service to the Tower for the Tower
lighting.
25. AUTHORITY.
25.01 Quiet Enjoyment. Lessor represents and warrants that it has
the full power and authority to enter into this Lease, and covenants and agrees
that Lessee, upon paying the rents described herein and observing and keeping
the covenants, agreements, and stipulations
34
of this Lease on Lessee's part to be observed and kept, shall lawfully,
peaceably, and quietly hold, occupy, and enjoy the Leased Premises, and all
other rights and privileges granted herein, without hindrance, eviction, or
molestation by Lessor or any party claiming by or through Lessor.
25.02 Lessee's Approval. Lessee represents and warrants that it has
the full power and authority to enter into and perform this Lease. Any and all
necessary corporate resolutions, encumbrance certificates, etc., shall be
supplied by Lessee upon the request of Lessor.
26. PERMITS.
26.01 Permits. Lessor shall obtain all necessary licenses or permits
in connection with the Tower and Transmitter Building except that Lessee shall
obtain, at its own expense, any and all necessary licenses or permits from such
governmental authorities as shall have jurisdiction in connection with the (b)
the operations, installation, repair, alteration, or replacement of Lessee's
equipment (including, without limitation, Lessee's antenna and transmission
and/or receiving equipment); or (c) with any of Lessee's activities thereon or
contemplated by this Lease. At Lessor's request, Lessee shall furnish Lessor
with copies of same, and shall abide by the terms and provisions of such
licenses and permits.
27. MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
27.01 During Term of Lease.
35
(a) Lessee, at its own cost and expense, shall maintain and
-------------------------------------------------------
repair Lessee's Property, including specifically its antenna, related equipment,
-------------------------------------------------------------------------------
transmission lines, transmitters, and other equipment. Lessor shall perform the
-------------------------------------------------------------------------------
same tasks with respect to the Tower and Transmitter Building. All such
-----------------------------------------------------------------------
maintenance shall be conducted by the parties in accordance with good
---------------------------------------------------------------------
engineering standards and in conformity with the requirements of the FCC or any
-------------------------------------------------------------------------------
other body having jurisdiction over the Lessee and its property, including,
--------------------------------------------------------------------------
without limitation, any rules, regulations, or guidelines of the FCC
--------------------------------------------------------------------
implementing the National Environmental Policy Act of 1969 pertaining to
------------------------------------------------------------------------
electromagnetic or radio frequency radiation. Each of Lessor and Lessee shall
-----------------------------------------------------------------------------
take all reasonable precautions to avoid interference or hindrance to and with
------------------------------------------------------------------------------
the operations of the other party hereto. In this regard, each party hereto
---------------------------------------------------------------------------
agrees to eliminate, without cost to the other party hereto, any interference or
--------------------------------------------------------------------------------
hindrance to such other party's operation. Maintenance and repair of Lessee's
------------------------------------------------------------------------------
Property shall be performed only by a reputable contractor and in accordance
----------------------------------------------------------------------------
with the provisions of subsections (d), (e), and (f) hereof.
------------------------------------------------------------
(b) Lessor retains the right to inspect Lessee's Property
-----------------------------------------------------
during normal business hours upon reasonable notice to Lessee, except that, in
------------------------------------------------------------------------------
the event of an emergency, as determined by Lessor, Lessor may enter at any
---------------------------------------------------------------------------
time, giving notice of such emergency to Lessee as soon as is practical. In the
-------------------------------------------------------------------------------
event that Lessor reasonably determines that Lessee has not maintained Lessee's
-------------------------------------------------------------------------------
Property and equipment in good order and repair according to industry standards,
-------------------------------------------------------------------------------
and that such repairs are necessary for the safety of the Tower, the Transmitter
--------------------------------------------------------------------------------
Building, and the Tower Site, or the prevention of interference with Lessor or
------------------------------------------------------------------------------
any other user of the Tower or any other broadcaster, Lessor may, at its option,
--------------------------------------------------------------------------------
make such emergency repairs to the Leased Premises as it deems reasonably
-------------------------------------------------------------------------
necessary, and any amount expended by Lessor therefor shall be reimbursed to it
-------------------------------------------------------------------------------
by Lessee immediately upon presentation of a statement and shall be deemed
--------------------------------------------------------------------------
additional rent. Lessor shall not be liable for inconvenience, disturbance, loss
--------------------------------------------------------------------------------
of business, or other damage to Lessee by reason of repairing any of Lessee's
-----------------------------------------------------------------------------
Property which Lessee has failed to properly maintain.
------------------------------------------------------
(c) With respect to the non-emergency repairs which Lessor, in its
----------------------------------------------------------------------------
reasonable discretion, determines that Lessee should make to maintain Lessee's
------------------------------------------------------------------------------
Property and equipment in good order, and that such repairs are necessary for
-----------------------------------------------------------------------------
the safety of the Tower, the Transmitter Building and the Tower Site, or the
----------------------------------------------------------------------------
prevention of interference with Lessor, in violation of the terms of this
-------------------------------------------------------------------------
Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance
-------------------------------------------------------------------------------
and repairs required to be performed by Lessee. In the event that, within ten
------------------------------------------------------------------------------
(10) business days following such written notice (or such longer period as may
------------------------------------------------------------------------------
be reasonably necessary taking into account all facts and circumstances), Lessee
--------------------------------------------------------------------------------
shall not have performed such maintenance and repairs, Lessor may, at its sole
------------------------------------------------------------------------------
option, make such repairs as it deems reasonably necessary, and any amount
--------------------------------------------------------------------------
expended by Lessor therefor shall be deemed additional rent. Lessor shall not
------------------------------------------------------------------------------
be liable for inconvenience, disturbance, loss of business, or other damage to
------------------------------------------------------------------------------
Lessee by reason of repairing the property and equipment of Lessee which Lessee
-------------------------------------------------------------------------------
has failed to properly maintain.
--------------------------------
36
(d) No work (including electrical work), except for
-----------------------------------------------
emergency repairs that Lessee shall perform to return to, or maintain the
-------------------------------------------------------------------------
station on air in the of a failure, will be performed by the Lessee in
----------------------------------------------------------------------
connection with the installation, alteration, maintenance, repair, or removal of
--------------------------------------------------------------------------------
any of Lessee's transmission lines, antenna, and other equipment on the Tower
-----------------------------------------------------------------------------
unless the Lessee submits to Lessor a copy of the proposed contract and also
----------------------------------------------------------------------------
detailed plans and specifications of the work to be done, and both the contract
-------------------------------------------------------------------------------
and the plans and specifications have been approved in writing by Lessor not to
-------------------------------------------------------------------------------
be unreasonably withheld, delayed or conditioned. Lessee, upon demand therefor
------------------------------------------------------------------------------
by Lessor, agrees to pay Lessor as additional rent all amounts reasonably
-------------------------------------------------------------------------
expended by Lessor in connection with review of any such contract, plans, and
-----------------------------------------------------------------------------
specifications.
---------------
(e) With respect to any work to be performed by or on behalf
--------------------------------------------------------
of Lessee in connection with the installation, alteration, maintenance, repair,
------------------------------------------------------------------------------
or removal of any equipment on the Tower (including any ascension of the Tower),
------------------------------------------------------------------------------
in the Transmitter Building, or in or about the Tower Site, Lessee may only
---------------------------------------------------------------------------
employ a contractor who has been approved in writing and in advance by Lessor.
-----------------------------------------------------------------------------
Lessor agrees that it will not unreasonably withhold its approval of any
------------------------------------------------------------------------
contractor who has the requisite experience and industry standard insurance
---------------------------------------------------------------------------
coverage and who will, at the sole option of Lessor, provide a bond to cover any
--------------------------------------------------------------------------------
work which it has been retained to perform. Lessor agrees to consult on call in
-------------------------------------------------------------------------------
any emergency situation and immediately give its approval or disapproval.
-------------------------------------------------------------------------
(f) All work by or on behalf of the Lessee or Lessor shall
------------------------------------------------------
be carried out (i) in a good and workmanlike manner; (ii) in accordance with
----------------------------------------------------------------------------
established engineering standards and public ordinances, rules, and regulations
-------------------------------------------------------------------------------
applicable to such work, including, without limitation, any rules, regulations,
-------------------------------------------------------------------------------
or guidelines of the FCC implementing the National Environmental Policy Act of
------------------------------------------------------------------------------
1969, pertaining to electromagnetic or radio frequency radiation; (iii) in
--------------------------------------------------------------------------
accordance with plans and specifications, including mechanical and electrical
-----------------------------------------------------------------------------
drawings, which have been submitted to and approved in writing and in advance by
--------------------------------------------------------------------------------
Lessor; and (iv) in accordance with Lessor's security procedures with respect to
--------------------------------------------------------------------------------
protection of the Tower Site.
-----------------------------
(g) Notwithstanding the receipt of the approvals by Lessor
------------------------------------------------------
as required in this paragraph, Lessee shall not be relieved of its
------------------------------------------------------------------
responsibilities and liabilities for interference or otherwise as herein
------------------------------------------------------------------------
provided, nor shall said approval be deemed a waiver of any other rights of
---------------------------------------------------------------------------
Lessor under this Lease.
------------------------
37
(h) In the event that any notice of lien or lien shall be
-----------------------------------------------------
filed against any part of the Tower Site for work claimed to have been done or
------------------------------------------------------------------------------
materials claimed to have been furnished to Lessee, the same shall be dismissed,
-------------------------------------------------------------------------------
withdrawn, discharged or bonded (to Lessor's reasonable satisfaction) by Lessee
-------------------------------------------------------------------------------
within thirty (30) days thereafter at Lessee's expense; and if Lessee shall fail
--------------------------------------------------------------------------------
to take such action as shall cause such lien to be discharged within thirty (30)
--------------------------------------------------------------------------------
days, Lessor may, at its option, discharge the same by deposit or by bonding
----------------------------------------------------------------------------
proceedings. Lessor may require the lienor to prosecute the appropriate action
------------------------------------------------------------------------------
to enforce the lienor's claim. In such case, Lessor shall give immediate notice
-------------------------------------------------------------------------------
to Lessee of such pending action or proceeding so that Lessee may have an
-------------------------------------------------------------------------
opportunity to legally contest or defend the action or proceeding. If, after
----------------------------------------------------------------------------
such notice to Lessee, a judgment is recovered on the claim, Lessor, at its sole
--------------------------------------------------------------------------------
option, may pay the judgment. Any reasonable amount paid or expense incurred or
-------------------------------------------------------------------------------
sum of money paid by Lessor (including reasonable attorney's fees) by reason of
-------------------------------------------------------------------------------
the failure of Lessee to comply with the foregoing provisions of this paragraph,
-------------------------------------------------------------------------------
or in defending any such action, shall be paid to Lessor by Lessee, and shall be
--------------------------------------------------------------------------------
treated as additional rent hereunder.
-------------------------------------
27.02 At Expiration or Termination. At the expiration or
termination of this Lease, Lessee shall promptly surrender possession of the
Leased Premises to Lessor in as good a condition as the same were received at
the commencement of the term, reasonable wear and tear and damage by fire or
other casualty beyond Lessee's reasonable control excepted.
28. USE AND MAINTENANCE OF COMMON PREMISES.
28.01 Use of Common Premises. Lessee, at its own risk, shall have
the right to use in common with Lessor and its licensees, invitees, and other
tenants, and in connection with Lessee's permissible activities and operations
(a) any access road from any public highway to the Tower Site or to any building
on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common
areas in the building (such items (a), (b) and (c) called collectively herein
the "Common Premises").
38
28.02 Maintenance of Common Premises.
a) Lessor shall maintain the Common Premises and any fence
-------------------------------------------------------
around the Tower in good repair. Lessee shall comply with any security policies
-------------------------------------------------------------------------------
reasonably established from time to time by Lessor.
--------------------------------------------------
(b) Lessor assumes the obligation and responsibility for
----------------------------------------------------
complying with the requirements of the FCC regarding obstruction, marking and
-----------------------------------------------------------------------------
lighting of the Tower. Lessor shall maintain the Tower and support systems in
-----------------------------------------------------------------------------
good repair and in good operating condition in accordance with the requirements
-------------------------------------------------------------------------------
of governmental authorities.
----------------------------
(c) In the event that Lessor determines that repairs,
-------------------------------------------------
alterations, or improvements are necessary or desirable to the Tower or any
---------------------------------------------------------------------------
building or structure constructed by Lessor on the Tower Site, any common areas,
-------------------------------------------------------------------------------
or the leased spaces of other tenants, Lessor may, upon reasonable notice and
-----------------------------------------------------------------------------
for the entrance doors, common areas, drive-ways, rights-of-way, service areas,
-------------------------------------------------------------------------------
parking areas, or any other facilities at its discretion without being liable to
--------------------------------------------------------------------------------
Lessee; provided that if any of the above would restrict Lessee's ability to
----------------------------------------------------------------------------
broadcast, Lessor shall use reasonable efforts to restrict any closure or
-------------------------------------------------------------------------
interruption pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00
----------------------------------------------------------------------------
a.m.. The closing of entrances, doors, common areas, parking areas, or other
----------------------------------------------------------------------------
facilities for the making of the repairs, alterations, or improvements described
--------------------------------------------------------------------------------
herein shall, under no circumstances, constitute an eviction of the Lessee or be
--------------------------------------------------------------------------------
grounds for termination of this Lease or the withholding of any rental payments
-------------------------------------------------------------------------------
or other payments or performances required to be paid or made by Lessee under
-----------------------------------------------------------------------------
the terms hereof, provided, Lessor shall use reasonable efforts to ensure that
------------------------------------------------------------------------------
any action taken in accordance with this paragraph shall not adversely affect
-----------------------------------------------------------------------------
the rights of Lessee hereunder. Under no such circumstances shall Lessee be
---------------------------------------------------------------------------
entitled to terminate this Lease nor shall it be entitled to compensation for
-----------------------------------------------------------------------------
any loss or damage it may sustain (including loss of use, loss of
-----------------------------------------------------------------
advertising/sponsorship revenues, and consequential damages) by reason of such
-------------------------------------------------------------------------------
changes or alterations.
-----------------------
29. ALTERATIONS BY LESSEE.
29.01 Alterations.
39
(a) Lessee shall have the right, at its own expense, to
---------------------------------------------------
make such changes and alterations in the Lessee's Property situated on the
--------------------------------------------------------------------------
Tower, subject to Paragraph 8.01 and Paragraph 11 hereof, as its operations may
-------------------------------------------------------------------------------
require, including the renovation, replacement, or removal of its antenna;
--------------------------------------------------------------------------
provided, however, that such changes or alterations conform with recognized
---------------------------------------------------------------------------
engineering standards and, if necessary, have been approved by the FCC and any
------------------------------------------------------------------------------
other authority having jurisdiction over Lessee; and provided further, that
---------------------------------------------------------------------------
plans and specifications are first submitted to and approved in writing by
--------------------------------------------------------------------------
Lessor. Lessee shall make no changes in the equipment or equipment position
---------------------------------------------------------------------------
without such approval, and Lessor shall not unreasonably fail to give such
--------------------------------------------------------------------------
approval within ten (10) business days.
---------------------------------------
(b) This Lease is based upon carefully computed tower
-------------------------------------------------
loading capacity. If any change proposed by Lessee in the type, location, or
----------------------------------------------------------------------------
positioning of Lessee's Property should, in Lessor's judgment, require a
-------------------------------------------------------------------------
computer or other type of feasibility study to determine the loading capacity of
--------------------------------------------------------------------------------
the Tower, such study shall be performed by an engineer chosen by Lessor, and
-----------------------------------------------------------------------------
approved by Lessee (such approval not to be unreasonably withheld, delayed or
-----------------------------------------------------------------------------
conditioned) whose decision shall be final and binding upon both parties. The
-----------------------------------------------------------------------------
cost of such study or any other costs reasonably incurred by Lessor in
----------------------------------------------------------------------
determining the feasibility of any proposed change or alteration in the type,
----------------------------------------------------------------------------
location, or positioning of Lessee's Property shall be borne entirely by Lessee.
-------------------------------------------------------------------------------
30. INTERFERENCE.
30.01 Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises
or on the Tower after the date hereof, notification of the particulars of such
proposed installation shall be submitted to Lessor hereto and any other lessees
or users of Tower space whose names and addresses are supplied to Lessee by
Lessor in writing, and the Lessor and such other users will be requested to
advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days
after receipt of such notification, whether they have any reasonable objections
thereto on the grounds that objectionable interference may result; provided,
this Section 11.01 shall not apply to any currently installed Lessee's Property
or its replacement, maintenance or repair. If the Lessor or any other user
shall reasonably object within this period to such plans and Lessee is unwilling
to alter its plans to meet the objections, the dispute shall be submitted to an
independent professional engineer chosen by Lessor, and such engineers decision
shall be final and binding upon all parties. The cost of any such studies shall
be borne by Lessee.
30.02 Interference with Lessor, Lessee, or Others.
Notwithstanding the provisions of Paragraph 11.01, should any change,
after the date hereof, in the facilities or mode of operation of Lessee or
Lessee's failure to comply with the Maintenance Standards, as defined in
Paragraph 11.04, cause any objectionable electrical or physical interference
(including interference from any other structure erected on the Tower Site) to
the television and/or radio broadcasting and/or receiving operations of any
other lessee, then, promptly after written notification of such interference,
the Lessee, at its sole expense, will take such steps as may be reasonably
required to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filters or other
40
equipment, provided that, if such interference is caused, after the date hereof,
by the failure of the Lessor or any other lessee suffering the interference to
comply with the Maintenance Standards, as defined in Paragraph 11.04, then
Lessor shall, or shall cause the other lessee suffering the interference, at its
sole expense, to comply with such Maintenance Standards. Any dispute as to the
cause of interference, or the steps reasonably required to correct it, arising
under this Paragraph 11.02, shall be submitted to an independent professional
engineer chosen by Lessor, and such engineer's decision shall be final and
binding upon the parties. If such interference is found to be caused by such
changed facilities or operation, the fees and charges of the engineer to whom
the dispute is referred shall be borne by the party whose changed facilities or
mode of operations gave rise to the claimed interference. If such interference
is found not to be caused by such changed facilities or operations, the fees and
charges of the engineer to whom the dispute is referred shall be borne by the
objecting party. All other leases and/or agreements to lease space at the Tower
Site shall contain this language.
30.03 Interference by Other User. Any subsequent agreement under
which Lessor allows any other person to occupy any portion of the Tower, Tower
Site or any building shall provide that, should the installation, operation, or
maintenance of the equipment or the activities of such other person cause any
objectionable interference with the operations of Lessor or Lessee, then,
promptly after written notification of such, such other tenant or user, at its
sole expense, will take such steps as may be reasonably necessary to correct
such interference, including, but not limited to, changing frequency, ceasing
transmission, reducing power, and/or the installation of any filter or other
equipment, provided that if such interference is caused by the failure of any
other lessee to comply with the Maintenance Standards, as defined in Paragraph
11.04, such other lessee will, at its sole expense, comply with such Maintenance
Standards. To the best of its ability, Lessor shall not permit any operations by
other tenants, the effect of which would be to prohibit Lessee from operating in
the manner contemplated herein, without the prior written consent of Lessee.
Lessor shall have no liability for any action or omission taken upon reasonable
reliance on the recommendation of qualified engineering personnel. Lessor agrees
that it will take commercially reasonable efforts to ensure that the
installation, operation or maintenance of its equipment which is installed after
the commencement date of this Lease on, in or around the Tower, Tower Site or
the Transmitter Building shall not cause any objectionable interference with the
operations of Lessee. Immediately upon notification of such interference by
Lessee, Lessor shall at its sole expense take such steps as may be reasonably
necessary to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filter or other equipment.
30.04 Definition of "Maintenance Standards". For the purposes of
this Lease, compliance with "Maintenance Standards" shall mean that a tenant or
user of the Tower shall (a) maintain and operate its equipment in accordance
with the requirements, rules, regulations, and guidelines of the FCC, and the
standards of manufacturers of the equipment; and (b) maintain and operate its
equipment in accordance with good engineering practice.
31. UTILITIES.
31.01 Utilities. Subject to the required approvals and cooperation
of any governmental authority or public utilities, Lessee shall arrange and be
responsible for the
41
installation and provision of electrical and telephone lines serving Lessee's
Property at any building on the Tower Site owned by Lessor. Lessee shall be
responsible for procurement of and payment for all telephone services as
described in Paragraph 5.03 and used by Lessee.
32. TAXES.
32.01 Payment of Taxes. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement] Lessee shall pay all personal property or other taxes assessed or
imposed on Lessee's Property, and shall cooperate with Lessor to ensure that
such property is properly separated from that of Lessor or other tenants for
assessment purposes.
33. INSURANCE.
33.01 Public Liability. Lessee shall procure and maintain
comprehensive public liability insurance, naming Lessor as an additional insured
as its interests shall appear, covering all of the Lessee's operations and
activities on the Leased Premises, including but not limited to, the operations
of contractors and subcontractors and the operation of vehicles and equipment
(including any elevators in the Tower), with limits of liability for the term of
this Lease of not less than Five Million Dollars ($5,000,000.00) in the
aggregate for personal injury or death in any occurrence and not less than Five
Million Dollars ($5,000,000.00) to cover property damage, with a liability
umbrella of not less than One Million Dollars ($1,000,000.00). Certificates
evidencing such insurance shall be furnished to Lessor upon its request. The
amounts specified hereunder shall be revised every five (5) years to such
amounts as Lessor may reasonably require upon the advice of its insurance
consultants. [Foregoing obligation is subject to $200,000 12-month limit when
aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement].
33.02 Contractor Liability. Lessee shall also cause the
contractors erecting, installing, or maintaining Lessee's Property or performing
any other work for Lessee on the Tower Site to procure reasonable public
liability insurance acceptable to Lessor and naming the Lessee and Lessor as
named insureds. Certificates evidencing such insurance shall be furnished to
Lessor in advance of any work being performed.
33.03 Insurance on the Tower and Transmitter Building. Lessee
shall procure and maintain physical damage insurance on the Tower and any
building on the Tower Site used or leased by Lessee pursuant to this Lease in an
amount sufficient to repair or replace the Tower and any such building with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse,
explosion, aircraft and vehicle damage, vandalism, and malicious mischief.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall be solely responsible for its insurance on Lessee's
Property, together with business interruption insurance.
42
33.04 Tower and/or Transmitter Building Damage. In the event that
the Tower or the Transmitter Building are destroyed or damaged by fire,
lightning, windstorm, flood, earthquake, explosion, collapse, aircraft, or other
vehicle damage or other casualty covered by insurance, Lessor shall promptly
reconstruct or repair the Tower and/or the Transmitter Building to such good
condition as existed before the destruction or damage, and give possession to
Lessee of substantially the same space leased hereunder. Lessee shall promptly
pay over to Lessor any insurance proceeds it receives from insurance policies
Lessee is required to procure under Section 14.03 hereof for the purpose of use
by Lessor to fund reconstruction of the Tower and/or Transmitter Building as
required of Lessor under this Section 14.04. If the Tower or the Transmitter
Building are in need of such repair or are so damaged by fire, lightning,
windstorm, flood, earthquake, explosion, aircraft or other vehicle damage,
collapse, or other casualty that reconstruction or repair cannot reasonably be
undertaken without dismantling Lessee's antenna, then upon written notice to
Lessee, Lessor may remove any such antenna and interrupt the signal activity of
Lessee, but will use its best efforts to have the antenna replaced as soon as
reasonably possible. Lessor agrees to provide Lessee an alternative tower or
transmitter building if available, during such reconstruction/repair period. If
such tower or space in another transmitter building on the Tower Site is not
available, then Lessee shall be responsible for procuring its own alternative
towers or space in a transmitter building. No monetary or other rental shall be
due pursuant to the terms of this Lease for such time as Lessee is unable to
conduct its broadcasting activities on the Tower without significant diminution
of signal quality as a result of such total or partial destruction or damage or
need of repair, and Lessor shall refund to Lessee any rent paid in advance for
such time. Should Lessor not either (a) inform Lessee in writing within ninety
(90) days of the date of destruction of Lessor's intent to replace the Towers
and/or Transmitter Building or (b) replace the Tower and/or Transmitter Building
within one (1) year if Lessor has provided the notice described in clause (a)
above, of the date of destruction, or repair the same within such shorter time
period after the casualty as may be reasonable, then Lessee, upon thirty (30)
days' written notice to Lessor, may terminate this Lease, provided if Lessor has
provided the notice described in clause (a) above, Lessee must make such
election within one hundred twenty (120) days prior to the expiration of said
repair or replacement period. Lessee agrees that it shall maintain adequate
business interruption insurance at all times during the term of this Lease to
adequately protect it from any interruption of signal activities due to damage
to the Tower (including costs of reinstallation of its equipment and lines), and
Lessor shall have no liability on account of such business interruption or
reinstallation costs due to damage or destruction under this paragraph.
43
34. EMINENT DOMAIN.
(a) In the event that the Tower Site (or any portion of the
-------------------------------------------------------
Tower Site necessary for the Tower, Transmitter Building, guy wires, or other
-----------------------------------------------------------------------------
appurtenances necessary to Lessee's broadcasting operations) is acquired or
---------------------------------------------------------------------------
transferred or condemned pursuant to eminent domain proceedings (or the threat
------------------------------------------------------------------------------
thereof), the obligation of the parties under this Lease shall be terminated as
-------------------------------------------------------------------------------
of the date of acquisition or transfer. Lessor shall be entitled to the entire
------------------------------------------------------------------------------
condemnation award. If Lessor determines to build a new tower as a replacement
------------------------------------------------------------------------------
for the Tower and/or the Transmitter Building on the condemned property, Lessor
-------------------------------------------------------------------------------
agrees to lease to Lessee the new tower and/or transmitter building on terms
----------------------------------------------------------------------------
reasonably equivalent to the terms of this Lease.
------------------------------------------------
(b) In the event that this Lease is terminated due to eminent
---------------------------------------------------------
domain proceedings, then Lessee shall be relieved of any further obligations to
-------------------------------------------------------------------------------
make any rental payments or performances for any period after the date of such
------------------------------------------------------------------------------
termination of this Lease; and subject to offset or withholding by Lessor to
----------------------------------------------------------------------------
cover any unpaid additional rent or other authorized charges which may be owed
------------------------------------------------------------------------------
through the date of termination, Lessee shall be entitled to a refund of any
----------------------------------------------------------------------------
advance rental sums which it has paid in proportion to the period of the Lease
------------------------------------------------------------------------------
through such date of termination.
--------------------------------
35. SUCCESSORS AND ASSIGNMENT.
35.01 Successors. All rights and liabilities herein given to or
imposed upon the respective parties hereto shall, to the extent that such are
assignable, extend to and bind the several and respective successors and assigns
of the parties hereto.
35.02 Assignment. Lessee shall not assign, sublet, or transfer
this Lease or any interest therein, or permit or allow through any act or
default of itself, or of any other person, any transfer thereof by operations of
law or otherwise without the prior written consent of Lessor except:
44
(a) Lessee may assign this Lease to any bona fide third
---------------------------------------------------
party purchaser of substantially all the assets comprising of Lessee's radio
----------------------------------------------------------------------------
station broadcasting from the Tower Site, who shall execute an assignment and
-----------------------------------------------------------------------------
assumption agreement in form reasonably acceptable to Lessor; and
-----------------------------------------------------------------
(b) Lessee may assign or transfer all or a portion of the
-----------------------------------------------------
assets of Lessee, including this Lease, to any corporation controlling,
-----------------------------------------------------------------------
controlled by, or under common control with, Lessee.
---------------------------------------------------
(c) Any assignment or subletting by Lessee except as
------------------------------------------------
permitted herein shall be void and of no effect. Any permitted assignment shall
-------------------------------------------------------------------------------
not relieve Lessee of any of its liabilities hereunder. A change in control of
------------------------------------------------------------------------------
Lessee, but not the mortgaging by Lessee of its rights hereunder, shall
-----------------------------------------------------------------------
constitute an assignment of this Lease. Lessor agrees to enter into
-------------------------------------------------------------------
documentation reasonably requested by any lender to Lessee in connection with
-----------------------------------------------------------------------------
Lessee's mortgaging of its rights hereunder.
-------------------------------------------
(d) Lessor may assign or transfer this Lease without the
----------------------------------------------------
consent of Lessee, but shall notify Lessee following any transfer or assignment.
--------------------------------------------------------------------------------
36. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the
event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not be
deemed fixtures) on the Leased Premises within thirty (30) days of such
termination. Such removal shall be conducted in accordance with Paragraph 8.01
hereof Lessee shall promptly repair any and all damage caused by such removal.
Any of Lessee's Property remaining on the Leased Premises after the expiration
of the thirty (30) day period shall be deemed to be the property of Lessor,
which Lessor may have removed at Lessee's expense.
37. LESSOR'S PROTECTION.
37.01 Default by Lessee.
45
(a) If Lessee shall make default in making any payment
--------------------------------------------------
herein provided for and any such default shall continue for a period of ten (10)
--------------------------------------------------------------------------------
business days after written notice to Lessee, or if Lessee shall make default in
--------------------------------------------------------------------------------
the performance of any obligation of Lessee herein (other than as to payment of
-------------------------------------------------------------------------------
money) and any such default shall continue for a period of thirty (30) days
---------------------------------------------------------------------------
after written notice to Lessee, or if Lessee shall file a voluntary petition in
-------------------------------------------------------------------------------
bankruptcy, or if Lessee shall file any petition or institute any proceedings
-----------------------------------------------------------------------------
under any Insolvency or Bankruptcy Act or any amendment thereto hereafter made,
-------------------------------------------------------------------------------
seeking to effect its reorganization or a composition with its creditors, or if,
--------------------------------------------------------------------------------
in any proceedings based on the insolvency of Lessee or relating to bankruptcy
------------------------------------------------------------------------------
proceedings, a receiver or trustee shall be appointed for Lessee or the Leased
------------------------------------------------------------------------------
Premises, or if any proceedings shall be commenced for the reorganization of
----------------------------------------------------------------------------
Lessee (which, in the case of involuntary proceedings, are not dismissed or
---------------------------------------------------------------------------
stayed within 30 days of the commencement thereof), or if the leasehold estate
------------------------------------------------------------------------------
created hereby shall be taken on execution or by any process of law, or if
--------------------------------------------------------------------------
Lessee shall admit in writing its inability to pay its obligations generally as
-------------------------------------------------------------------------------
they become due, then Lessor may, at its option, terminate this Lease without
-----------------------------------------------------------------------------
notice, and declare all amounts due or to become due hereunder immediately due
------------------------------------------------------------------------------
and payable, and Lessor's agents and servants may immediately, or any time
--------------------------------------------------------------------------
thereafter, reenter the Leased Premises by reasonably necessary force, summary
------------------------------------------------------------------------------
proceedings, or otherwise, and remove all persons and properly therein, without
-------------------------------------------------------------------------------
being liable to indictment, prosecution, or damage therefor, and Lessee hereby
------------------------------------------------------------------------------
expressly waives the service of any notice in writing of intention to reenter
-----------------------------------------------------------------------------
said Leased Premises. Lessor may, in addition to any other remedy provided by
-----------------------------------------------------------------------------
law or permitted herein, at its option, relet the Leased Premises (or any part
------------------------------------------------------------------------------
thereof) on behalf of Lessee, applying any monies collected first to the payment
--------------------------------------------------------------------------------
of expenses of resuming or obtaining possession, and, second, to the payment of
-------------------------------------------------------------------------------
the costs of placing the premises in rentable condition, including any leasing
------------------------------------------------------------------------------
commission, and, third, to the payment of rent due hereunder, and any other
---------------------------------------------------------------------------
damages due to the Lessor. Any surplus remaining thereafter shall be paid to
----------------------------------------------------------------------------
Lessee, and Lessee shall remain liable for any deficiency in rental, the amount
-------------------------------------------------------------------------------
of which deficiency shall be paid upon demand therefor to Lessor.
----------------------------------------------------------------
(b) Should Lessor re-enter and terminate according to the
-----------------------------------------------------
provisions of this subparagraph, Lessor may remove and store the Lessee's
-------------------------------------------------------------------------
Property at the expense and for the account of Lessee. Alternatively, Lessor may
--------------------------------------------------------------------------------
sell, or cause to be sold, Lessee's Property at public sale to the highest
--------------------------------------------------------------------------
bidder for cash, and remove from the proceeds of such sale any rent or other
----------------------------------------------------------------------------
payment then due Lessor under this Lease. Any disposition of the Lessee's
-------------------------------------------------------------------------
Property pursuant thereto shall be subject to the rights of any lender to Lessee
--------------------------------------------------------------------------------
holding a mortgage on Lessee's Property and shall be made in a manner that is
-----------------------------------------------------------------------------
commercially reasonable within the meaning of the Uniform Commercial Code as in
-------------------------------------------------------------------------------
effect in the State of Georgia at the time of such disposition.
--------------------------------------------------------------
38. INDEMNIFICATION.
46
(a) Each party warrants and represents that it has the
--------------------------------------------------
authority to enter into this Lease and to grant the rights it grants hereunder,
-------------------------------------------------------------------------------
and that performance of its obligations pursuant to this Lease will not violate
-------------------------------------------------------------------------------
the rights of any third party whatsoever. Lessee agrees to indemnify and defend
-------------------------------------------------------------------------------
Lessor against any claim for damages, losses, liabilities, costs, or expenses,
------------------------------------------------------------------------------
including reasonable attorney's fees, arising (a) out of any breach by Lessee of
--------------------------------------------------------------------------------
its warranties, representations, or covenants under this Lease; (b) out of the
------------------------------------------------------------------------------
use, management, or occupancy of the Leased Premises by Lessee, its agents, or
------------------------------------------------------------------------------
invitees; (c) out of any omissions, negligence or willful misconduct of Lessee,
-------------------------------------------------------------------------------
its agents, servants, employees, licensees, or invitees; (d) out of failure of
------------------------------------------------------------------------------
Lessee to comply with any laws, statutes, ordinances, or regulations; (e) out of
--------------------------------------------------------------------------------
Lessee's failure to maintain equipment in proper working order; and (f) out of
------------------------------------------------------------------------------
Lessee's failure to comply with any of its other obligations under the terms of
-------------------------------------------------------------------------------
this Lease.
----------
(b) Lessor agrees to indemnify and defend Lessee against any
--------------------------------------------------------
claim for damages, losses, liabilities, costs, or expenses, including reasonable
--------------------------------------------------------------------------------
attorney's fees, arising (a) out of any breach by Lessor of its warranties,
---------------------------------------------------------------------------
representations, or covenants under this Lease; (b) out of the use, management,
-------------------------------------------------------------------------------
or occupancy of the Leased Premises by Lessor, its agents, or invitees; (c) out
-------------------------------------------------------------------------------
of any omissions, negligence or willful misconduct of Lessor, its agents,
-------------------------------------------------------------------------
servants, employees, licensees, or invitees; (d) out of failure of Lessor to
----------------------------------------------------------------------------
comply with any laws, statutes, ordinances, or regulations; (e) out of Lessor's
-------------------------------------------------------------------------------
failure to maintain equipment in proper working order; and (f) out of Lessor's
------------------------------------------------------------------------------
failure to comply with any of its other obligations under the terms of this
---------------------------------------------------------------------------
Lease.
-----
(c) Any party seeking indemnification hereunder
-------------------------------------------
("Indemnified Party") shall provide the other party ("Indemnifying Party")
--------------------------------------------------------------------------
reasonably prompt notice of known claims giving rise to any claim for indemnity,
--------------------------------------------------------------------------------
and the Indemnifying Party shall have the right and opportunity to undertake the
--------------------------------------------------------------------------------
legal defense of such claims. The Indemnified Party and its counsel may
-----------------------------------------------------------------------
nevertheless participate in (but not control) such proceedings, negotiations, or
--------------------------------------------------------------------------------
defense at its own expense. In all such cases, the Indemnified Party will give
------------------------------------------------------------------------------
all reasonable assistance to the Indemnifying Party, including making the
-------------------------------------------------------------------------
Indemnified Party's employees and documents available as reasonably requested
-----------------------------------------------------------------------------
without charge.
--------------
39. ESTOPPEL CERTIFICATE AND ATTORNMENT.
39.01 Estoppel Certificate. Within ten (10) days after either
party's request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
47
39.02 Attornment. Lessee shall, in the event of a sale or
assignment of Lessor's interest in any of the Leased Premises, or, if any of the
Leased Premises or any building thereon comes into the hands of any Trustee
under a Deed of Trust or a mortgagee or any other person, whether because of a
foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or
otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person,
and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's
request any attornment agreement reasonably required by any mortgagee, Trustee,
or other such person to be executed containing such provisions as such
mortgagee, Trustee, or other person reasonably requires, provided, however, that
such attornment shall not modify the terms of this Lease.
39.03 Failure to Execute Instruments. Either party's failure,
without good and reasonable cause, to execute instruments or certificates
provided for in this Paragraph 20, within fifteen (15) days after the receipt by
such party of a written request, shall be a default under his Lease.
40. MISCELLANEOUS.
40.01 Relationship of Parties. Nothing contained herein and no
acts of the parties herein shall be deemed or construed as creating any
relationship between the parties hereto other than the relationship of Lessor
and Lessee or Landlord and Tenant.
40.02 Governing Law. This Lease shall be governed and construed
and enforced in accordance with the laws of the State of Georgia.
40.03 Captions. The captions contained in this Lease are included
solely for convenience and shall in no event affect or be used in connection
with the interpretation of this Lease.
40.04 Amendments. This Lease only may be amended or modified as
may be agreed upon by written instrument executed by the parties hereto.
40.05 Interest and Attorney's Fees. All sums becoming due or
payable under this Lease, including all money expended pursuant to the
provisions hereof or on account of any default in the performance and observance
of any agreements or covenants herein, shall bear interest at the rate of eight
and one-half percent (8.5%) per annum (or at such lesser rate which is the
maximum permitted by applicable law) from thirty (30) days after the date such
sums become due or payable, or, in the event one of the parties expends money
because of a default by the other, from thirty (30) days after the date the
defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
40.06 Brokers and Third Parties. Each party represents that it has
not had dealings with any real estate broker or other person who may claim a
commission or finder's fee with respect to this Lease in any manner. Each party
shall hold harmless the other party from all
48
damages resulting from any claims that may be asserted against the Indemnified
Party by any broker, finder, or other person with whom the Indemnifying Party
has or purportedly has dealt.
40.07 Notices. Notices given pursuant to this Lease shall be in
writing and shall be given by actual delivery or by mailing the same to the
party entitled thereto at the addresses set forth below or at any such other
address as any Party may designate in writing to any other Party pursuant to the
provisions of this paragraph. Notice given by mail shall be sent by United
States mail, certified or registered, return receipt requested or by nationally
recognized courier serviced providing receipt of delivery. Notices shall be
deemed to be received on the date of actual receipt, in the case of personal
delivery, or on the date of mailing, in the case of mailing. Notices shall be
served or mailed to the following addresses, subject to change as provided
above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
40.08 Waiver. It is agreed that the waiving of any of the
covenants of this Lease by either party shall be limited to the particular
instance, and shall not be deemed to waive any other breaches of such covenant
or any provision herein contained.
40.09 Accord and Satisfaction. No receipt of money by Lessor after
the termination of this Lease or after the service of any notice or after the
commencement of any suit reinstates, continues, or extends the term of this
Lease or affects any such notice or suit.
49
40.10 Limitation of Liability. Except as otherwise expressly
stated herein, Lessor shall not be liable or responsible to the Lessee or to
anyone claiming under or through the Lessee for any loss or damage caused by the
acts or omissions of any other tenants or any other users of the Tower,
Transmitter Building, or Tower Site, or for any loss or damage to Lessee's
Property caused by fire, water, bursting pipes, leaking gas, sewage, steam
pipes, drains, ice, or materials falling from the Tower, or the malfunction of
any utility, facility, or installation, or by reason of any other existing
condition or defect in the Leased Premises; nor shall Lessor be liable or
responsible to the Lessee for any injury or damage suffered by the Lessee and
allegedly caused by technical interference with the Lessee's operations, by the
activities of any other tenants or users of the Tower, Transmitter Building, and
Tower Site, or any other broadcasters. Except for Lessor's own negligent acts,
willful misconduct or for breaches of its obligations under this Agreement,
Lessor shall not be liable to Lessee, or to any other person for property damage
or personal injury, including death. Lessor shall not be liable under any
circumstances for loss of use, loss of sponsorship or advertising revenue, or
any other consequential damages sustained by Lessee.
40.11 Partial Invalidity. The invalidity of any provision, clause,
or phrase contained in this Lease shall not serve to render the balance of this
Lease ineffective or void; and the same shall be construed as if such had not
been herein set forth.
40.12 Documentary Stamps. Lessee shall bear the cost of any
documentary stamps occasioned by this Lease should it wish to record this Lease.
40.13 Rules and Regulations. Lessor may from time to time issue
such rules and regulations in writing which it may consider necessary and
desirable. Lessee agrees to abide by such rules and regulations so long as they
do not unreasonably interfere with Lessee's use and occupancy of the Leased
Premises or conflict with this Lease.
40.14 Force Majeure. Lessor assumes no responsibility for any
losses or damages to Lessee's Property caused by acts of God, including, but not
limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or
by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for
losses or damages to Lessee's Property caused by any person other than employees
and agents of Lessor. In the event that Lessor shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of acts
of God (including, but not limited to, wind, lightning, rain, ice, earthquake,
flood, or rising water), aircraft or vehicle damage or other casualty,
unforeseen soil conditions, acts of third parties who are not employees of
Lessor, strikes, lock-outs, labor troubles, inability to procure material,
failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of delay and the period for performance
of any such act shall be extended for a period equivalent to the period of such
delay.
40.15 Entire Agreement. This Lease, together with its Exhibits,
constitutes and sets forth the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous offers, negotiations, and agreements
50
(whether oral or written) between the parties (or any of their related entities)
concerning the subject matter of this Lease.
40.16 Counterparts and Duplicates. This Lease may be executed in
counterparts, which, when combined, shall constitute a single instrument. The
Lease may also be executed in duplicate editions, each of which shall be
effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
_________________________ By: _________________________(SEAL)
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX XX ACQUISITION CORP.
_________________________ By: _________________________(SEAL)
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
52
EXHIBIT A
---------
DESCRIPTION OF TOWER
WAEC-AM
One (1) two hundred seventy five (275) foot Utility G45 uniform cross-section,
series-excited, guyed triangular communication tower with ground system used in
the operation of WAEC-AM situated on that certain tract of land more
particularly described on Exhibit B herein.
EXHIBIT B
---------
DESCRIPTION OF TOWER SITE
WAEC-AM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
EXHIBIT C
---------
DESCRIPTION OF TRANSMITTER BUILDING
WAEC-AM
One (1) ten (10) foot high concrete block transmitter building with a shingle
roof and approximately eight hundred seventy five (875) square feet of interior
space shared by WAEC-AM and WWWE-AM.
