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EXHIBIT 10.16
AGREEMENT OF SALE (O&O)
This Agreement of Sale (the "Agreement") is made this ___ day of February,
2000, between Xxxxxxx Broadcasting of New Jersey, Inc., 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 comprising a parcel
of real estate and two (2) communications tower facilities (the "Towers", one of
such Towers used exclusively for broadcast during daytime hours and called
herein the "Daytime Tower"), located in Camden, New Jersey and used in
connection with the operation of radio broadcast station WTMR-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,
excluding any building improvements situated thereon (collectively, such land,
easements and appurtenances, the "Land"), and the Towers, such Towers and the
Land more particularly described in Exhibit A attached hereto and incorporated
herein; and
(b) The lease for use of space on the Daytime Tower located at the
Tower Site and certain real property within the Tower Site as such lease is 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") under the RBC
Lease (as defined in Section 5(d) hereof) and with respect to the ownership of
the Land and Towers, the operation of the business relating to the Assets,
(collectively, the "Assumed Liabilities").
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(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 subject to Section 13 hereof Seller shall and
hereby agrees to satisfy in due course all such Retained Liabilities, and 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, subject to Section 13
hereof, and 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 Three
Sixteen Thousand Two Hundred Dollars ($316,200.00) (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 Three Sixteen Thousand Two Hundred Dollars ($316,200.00),
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
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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 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.
(d) Buyer and Seller acknowledge that the Daytime Tower is occupied,
or will be occupied, by a tenant pursuant to that certain Sale and Lease
Agreement, dated June 29, 1981, between Family Stations, Inc. and Xxxxxxx
Broadcasting Company ("RBC") (the "RBC Lease"), such RBC Lease leasing certain
space on the Daytime Tower and certain real property within the Tower Site, and
assigning to Xxxx-Xxxxxxxxx Broadcasting, Inc. ("Xxxx"), all of RBC's right and
interest to and in the RBC Lease, such rights subsequently assigned to Seller
pursuant to that certain Assignment and Assumption Agreement, dated December 1,
1998, by and between Xxxx and Seller. At Closing, Seller will assign all of its
right, title, and interest in the RBC Lease to Buyer, and Buyer shall assume the
obligations under the RBC Lease, in the Assignment, Xxxx of Sale and Assumption
Agreement. In the event that the Buyer receives after Closing any lease payment
from tenants pursuant to the RBC Lease for rent that accrued prior to Closing,
Buyer shall remit such lease payment promptly to Seller. Conversely, in the
event Seller receives after Closing any lease payments from tenants pursuant to
the RBC Lease for rent that accrued after Closing, Seller shall remit such lease
payments promptly to Buyer.
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6. Apportionment of Real Estate Taxes, Rent, Utilities.
(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.
(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.
(a) Seller shall pay the costs of preparation of the Deeds,
acknowledgement of the Deeds, 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
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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
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.
(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) A lease agreement, by and between Buyer, as lessor, and
Seller, as lessee, substantially in the form of Exhibit E
(the "Lease Agreement").
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(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) A lease agreement, by and between Buyer, as lessor, and
Seller, as lessee, substantially in the form of Exhibit E
(the "Lease Agreement"); and
(v) The Assignment, Xxxx of Sale and Assumption Agreement.
(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.
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(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.
(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
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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) 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:
(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 any 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) 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 any Tower Site
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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
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.
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(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) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to Forty Thousand Dollars
($40,000.00) 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) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Forty Thousand Dollars
($40,000.00) 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.
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:
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(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.
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.
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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 Broadcasting of New Jersey, Inc.
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 New Jersey.
13
14
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 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
15
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 BROADCASTING OF NEW JERSEY, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By:
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
16
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 Agreement
17
EXHIBIT A
DESCRIPTION OF LAND AND TOWERS
WTMR-AM
(1) That certain communications tower used exclusively to broadcast during
daytime hours and
(2) that certain communications tower used exclusively to broadcast during
nighttime hours, each tower situated on that certain tract of land more
particularly described as follows:
BEGINNING AT A POINT IN THE WESTERLY LINE OF MT. EPHRAIM AVENUE (73 FEET WIDE)
SAID POINT BEING 1,007.87 FEET NORTH, 18 DEGREES 17 MINUTES 00 SECONDS WEST,
MEASURED FROM THE INTERSECTION OF THE WESTERLY LINE OF MT. EPHRAIM AVENUE WITH
THE TRUNCATED NORTHWESTERLY LINE OF OLYMPIA AVENUE, SAID BEGINNING POINT BEING
THE NORTHERLY CORNER OF LANDS NOW OR FORMERLY XXXXXX ENTERPRISES: THENCE
1) ALONG SAID LANDS, NOW OR FORMERLY OF XXXXXX ENTERPRISES, SOUTH 71 DEGREES 43
MINUTES 00 SECONDS WEST, 175 FEET TO A POINT: THENCE
2) SOUTH 54 DEGREES 14 MINUTES 30 SECONDS WEST, 110.50 FEET TO A POINT: THENCE
3) NORTH 19 DEGREES 23 MINUTES 00 SECONDS WEST, 176.86 FEET TO A POINT CORNER TO
LANDS NOW OR FORMERLY XXXXXX ENTERPRISES: THENCE
4) STILL ALONG SAID LANDS, SOUTH 71 DEGREES 43 MINUTES 00 SECONDS WEST, 383 FEET
TO A POINT: THENCE
5) NORTH 29 DEGREES 49 MINUTES 01 SECONDS WEST, 242, 45 FEET TO A POINT IN THE
PIERHEAD AND BULKHEAD LINE AS ESTABLISHED BY THE DEPARTMENT OF CONSERVATION:
THENCE
6) ALONG THE PIERHEAD AND BULKHEAD LINE NORTH 04 DEGREES 00 MINUTES 00 SECONDS
EAST, 125 FEET TO A POINT: THENCE
7) STILL ALONG SAME, NORTH 29 DEGREES 00 MINUTES WEST, 210.46 FEET TO A POINT:
THENCE
8) ALONG LANDS RETAINED BY SOUTH JERSEY BROADCASTING COMPANY, NORTH 71 DEGREES
43 MINUTES 00 SECONDS EAST, 400.23 FEET TO A POINT, CORNER TO LANDS NOW OR
FORMERLY ELGIN DINER: THENCE
9) ALONG SAID LANDS SOUTH 18 DEGREES 17 MINUTES 00 SECONDS EAST, 150 FEET TO A
POINT FOR A CORNER: THENCE
10) STILL ALONG LANDS NOW OR FORMERLY OF ELGIN DINER AND LANDS NOW OR FORMERLY
OF XXX X. ITALIANO NORTH 71 DEGREES 43 MINUTES 00 SECONDS EAST, 300 FEET TO A
POINT IN THE WESTERLY LINE OF MT. EPHRAIM AVENUE: THENCE
11) ALONG SAME, SOUTH 18 DEGREES 17 MINUTES 00 SECONDS EAST, 200 FEET TO THE
FIRST MENTIONED POINT AND PLACE OF BEGINNING.
18
TOGETHER WITH ALL RIGHTS UNDER GRANT OF EASEMENT AS CONTAINED IN BOOK 2888, PAGE
272 AND EASEMENT AS CONTAINED IN BOOK 2894, PAGE 49.
COMMONLY KNOWN AS: 0000 Xx. Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
The real property to be conveyed hereunder shall be exclusive of any building
improvements situated thereon.
The real property to be conveyed hereunder is subject to the RBC lease (as
defined in Section 5(D) of this agreement).
19
EXHIBIT B
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$316,200.00 February ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value
received, promises to pay to the order of XXXXXXX BROADCASTING OF NEW JERSEY,
INC., a Delaware corporation, ("Payee"), the principal amount of THREE HUNDRED
SIXTEEN THOUSAND TWO HUNDRED DOLLARS ($316,200.00), 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 February ____, 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 Two Thousand Three Hundred Ninety Four Dollars and Fifty Two
Cents ($2,394.52). 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").
(d) Prepayment.
(i) Payor may, at its option at any time, without premium or
penalty, prepay all or any portion of this Note.
20
(ii) Any prepayment of this Note shall be applied as follows:
first, to payment of accrued interest; and second, to
payment of principal.
2. 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 meanings 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,
2
21
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.
"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.
3. 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.
4. 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 New Jersey, 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
22
If to Payor, addressed to:
Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
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 Broadcasting of New Jersey, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
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
23
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
24
EXHIBIT C
FORM OF DEED
25
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 February, 2000
by and between XXXXXXX BROADCASTING OF NEW JERSEY, INC. ("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 February, 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:
a. The Towers, such Towers more particularly described in
Exhibit A of the Asset Purchase Agreement; and
b. The RBC Lease.
Items a. and b. above are 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 February __,
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 February __, 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
26
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.
27
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the day and year first written above.
SELLER:
XXXXXXX BROADCASTING OF NEW JERSEY, INC.
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By:
--------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
28
EXHIBIT E
FORM OF LEASE AGREEMENT
29
LEASE AGREEMENT (O&O - WTMR-AM)
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000 by and
between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and
XXXXXXX BROADCASTING OF NEW JERSEY, INC., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns two communications towers described on Exhibit A
attached hereto (the "Towers"), together with other improvements on a certain
tract of real estate located at Camden, New Jersey, as such land is more fully
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, but not including that certain studio building owned by Lessor on
such land and that certain transmitter building owned by [Family Stations,
Inc.]);
WHEREAS, Lessor desires to lease the Tower Site and the Towers for the
purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Towers from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants
herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 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.
1.02 EXHIBITS. All Exhibits referred to in this Lease are incorporated
herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 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:
(a) The Towers, for the purposes of broadcast transmission of
WTMR-AM, Camden, New Jersey, subject to the lease of certain tower space to
[Family Stations, Inc.] under the [RBC Lease]; and
(b) The Tower Site.
30
(c) All of the property leased under this Paragraph 2.01 shall
hereinafter be called the "Leased Premises".
2.02 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.
3. PERMITTED USES.
3.01 BY LESSEE.
(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 Towers. Lessee may repair and
maintain equipment as it reasonably deems necessary to its operations within
Lessee's 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.
3.02 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 Towers, at its own expense, as it sees fit and to fasten
additional equipment to the Towers for any purpose, including the right to
install transmitting and/or receiving antennas of others; provided that Lessor
shall use
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31
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 Towers 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.
4. TERM.
4.01 TERM. This Lease shall have a term of twenty (20) years from the
Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 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 according to the following schedule:
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32
------------------------------------------------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
------------------------------------------------------------------------------------------------------------
1 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
2 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
3 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
4 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
5 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
6 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
7 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
8 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
9 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
10 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
11 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
12 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
13 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
14 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
15 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
16 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
17 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
18 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
19 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
20 $28,734.24 $2,394.52
------------------------------------------------------------------------------------------------------------
5.02 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 the 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 Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. 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.
5.03 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 Towers used by Lessee as measured by a separate electrical meter at Lessee's
expense). Lessor shall pay for the electrical service to the Towers for the
Towers lighting.
6. AUTHORITY.
6.01 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
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33
stipulations 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.
6.02 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.
7. PERMITS.
7.01 PERMITS. Lessor shall obtain all necessary licenses or permits in
connection with the Towers and any building on the Tower Site 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.
8. MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
(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 Towers. 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 Towers and the Tower
Site, or the prevention of interference with Lessor or any other user of the
Towers or any other
5
34
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 Towers 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.
(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 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 Towers 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 Towers (including any ascension of the Towers),
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
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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.
(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.
8.02 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.
9. USE AND MAINTENANCE OF COMMON PREMISES.
9.01 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; and (b) any parking lot on the Tower Site (such items (a) and
(b) called collectively herein the "Common Premises").
9.02 MAINTENANCE OF COMMON PREMISES.
(a) Lessor shall maintain the Common Premises and any fence
around the Towers 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
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Towers. Lessor shall maintain the Towers 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 Towers 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.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own expense, to make
such changes and alterations in the Lessee's Property which is situated on the
Towers, 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 Towers, 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.
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11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation on the Leased Premises or on
the Towers 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 space on the Towers 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.
11.02 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 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.
11.03 INTERFERENCE BY OTHER USER. Any subsequent agreement under which
Lessor allows any other person to occupy any portion of the Towers, Tower Site
or any building on the Tower Site 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
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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 Towers, Tower Site or
any buildings on the Tower Site 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.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the purposes of this
Lease, compliance with "Maintenance Standards" shall mean that a tenant or user
of the Towers 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.
12. UTILITIES.
12.01 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 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.
13. TAXES.
13.01 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.
14. INSURANCE.
14.01 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,
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including but not limited to, the operations of contractors and subcontractors
and the operation of vehicles and equipment (including the Towers elevator),
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].
14.02 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.
14.03 INSURANCE ON THE TOWERS. Lessee shall procure and maintain
physical damage insurance on the Towers in an amount sufficient to repair or
replace the Towers 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.
14.04 DAMAGE TO THE TOWERS. In the event that the Towers 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 Towers 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 as required of Lessor under this
Section 14.04. If the Towers 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, if available, during such reconstruction/repair period. If such tower on
the Tower Site is not available, then Lessee shall be responsible for procuring
its own alternative tower. 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 Towers 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
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destruction of Lessor's intent to replace the Towers or (b) replace the Towers
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 Towers (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.
15. EMINENT DOMAIN.
(a) In the event that all of the Tower Site (or any portion of
the Tower Site necessary for the Towers, 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 or towers as a replacement for
the Towers on the condemned property, Lessor agrees to lease to Lessee the new
tower or towers 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.
16. SUCCESSORS AND ASSIGNMENT.
16.01 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.
16.02 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:
(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
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(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.
17. 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.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(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
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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 New Jersey at the time of such disposition.
19. INDEMNIFICATION.
(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.
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(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.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 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.
20.02 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.
20.03 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.
21. MISCELLANEOUS.
21.01 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.
21.02 GOVERNING LAW. This Lease shall be governed and construed and
enforced in accordance with the laws of the State of New Jersey.
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21.03 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.
21.04 AMENDMENTS. This Lease only may be amended or modified as may be
agreed upon by written instrument executed by the parties hereto.
21.05 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.
21.06 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 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.
21.07 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
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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 Broadcasting of New Jersey, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
21.08 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.
21.09 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.
21.10 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 Towers, 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 Towers, 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 Towers 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.
21.11 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.
21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of any
documentary stamps occasioned by this Lease should it wish to record this Lease.
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21.13 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.
21.14 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.
21.15 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 (whether oral or written)
between the parties (or any of their related entities) concerning the subject
matter of this Lease.
21.16 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 BROADCASTING OF NEW JERSEY, INC.
By: (SEAL)
---------------------------------- ----------------------------------
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A
WTMR-AM
(1) That certain communications tower and for the daytime operation of WTMR-AM
and (2) that certain communications tower used for the nighttime operation of
WTMR-AM and situated on that certain tract of land more particularly described
on Exhibit B herein.
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EXHIBIT B
WTMR-AM
That certain tract of land (exclusive of the studio building used for the
broadcast operation of WTMR-AM thereon and the transmitter building owned by
[Family Stations, Inc.]) more particularly described as follows:
BEGINNING AT A POINT IN THE WESTERLY LINE OF MT. EPHRAIM AVENUE (73 FEET WIDE)
SAID POINT BEING 1,007.87 FEET NORTH, 18 DEGREES 17 MINUTES 00 SECONDS WEST,
MEASURED FROM THE INTERSECTION OF THE WESTERLY LINE OF MT. EPHRAIM AVENUE WITH
THE TRUNCATED NORTHWESTERLY LINE OF OLYMPIA AVENUE, SAID BEGINNING POINT BEING
THE NORTHERLY CORNER OF LANDS NOW OR FORMERLY XXXXXX ENTERPRISES: THENCE
1) ALONG SAID LANDS, NOW OR FORMERLY OF XXXXXX ENTERPRISES, SOUTH 71 DEGREES 43
MINUTES 00 SECONDS WEST, 175 FEET TO A POINT: THENCE
2) SOUTH 54 DEGREES 14 MINUTES 30 SECONDS WEST, 110.50 FEET TO A POINT: THENCE
3) NORTH 19 DEGREES 23 MINUTES 00 SECONDS WEST, 176.86 FEET TO A POINT CORNER TO
LANDS NOW OR FORMERLY XXXXXX ENTERPRISES: THENCE
4) STILL ALONG SAID LANDS, SOUTH 71 DEGREES 43 MINUTES 00 SECONDS WEST, 383 FEET
TO A POINT: THENCE
5) NORTH 29 DEGREES 49 MINUTES 01 SECONDS WEST, 242, 45 FEET TO A POINT IN THE
PIERHEAD AND BULKHEAD LINE AS ESTABLISHED BY THE DEPARTMENT OF CONSERVATION:
THENCE
6) ALONG THE PIERHEAD AND BULKHEAD LINE NORTH 04 DEGREES 00 MINUTES 00 SECONDS
EAST, 125 FEET TO A POINT: THENCE
7) STILL ALONG SAME, NORTH 29 DEGREES 00 MINUTES WEST, 210.46 FEET TO A POINT:
THENCE
8) ALONG LANDS RETAINED BY SOUTH JERSEY BROADCASTING COMPANY, NORTH 71 DEGREES
43 MINUTES 00 SECONDS EAST, 400.23 FEET TO A POINT, CORNER TO LANDS NOW OR
FORMERLY ELGIN DINER: THENCE
9) ALONG SAID LANDS SOUTH 18 DEGREES 17 MINUTES 00 SECONDS EAST, 150 FEET TO A
POINT FOR A CORNER: THENCE
10) STILL ALONG LANDS NOW OR FORMERLY OF ELGIN DINER AND LANDS NOW OR FORMERLY
OF XXX X. ITALIANO NORTH 71 DEGREES 43 MINUTES 00 SECONDS EAST, 300 FEET TO A
POINT IN THE WESTERLY LINE OF MT. EPHRAIM AVENUE: THENCE
11) ALONG SAME, SOUTH 18 DEGREES 17 MINUTES 00 SECONDS EAST, 200 FEET TO THE
FIRST MENTIONED POINT AND PLACE OF BEGINNING.
TOGETHER WITH ALL RIGHTS UNDER GRANT OF EASEMENT AS CONTAINED IN BOOK 2888, PAGE
272 AND EASEMENT AS CONTAINED IN BOOK 2894, PAGE 49.
COMMONLY KNOWN AS: 0000 Xx. Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
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