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EXHIBIT 10.18
AGREEMENT OF SALE (OT/LL)
This Agreement of Sale (the "Agreement") is made this ___ day of
February, 2000, between Xxxxxxx Broadcasting of Coastal Carolina, Inc., a
Delaware corporation (the "Seller"), and Xxxxxxx Family Towers Inc., a Delaware
corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain communications towers used in the
operation of radio broadcast station WNCT-AM (the "Towers"), such Towers
situated on a certain tract of land which Seller leases from a third party (such
tract of land called herein the "Tower Site"), the Towers and the Tower Site are
more particularly described on Exhibit A hereto attached hereto;
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Towers certain 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) The Tower; and
(b) The ground lease for the Tower Site (the "Ground
Lease"), such Ground Lease attached as Exhibit B hereto and incorporated herein.
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 Ground Lease, and with respect to the ownership of the Tower,
and the operation of the business relating to the Assets (collectively, the
"Assumed Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is
understood and agreed that all liabilities to third parties relating to the
Assets that arise out of any act, event, or transaction of Seller or the
ownership of the Assets or the operation of the business relating to the Assets
prior to the Closing Date (the "Retained Liabilities") shall remain the
responsibility of Seller. Buyer shall not be required to defend any suit or
claim arising out of any Retained Liabilities, and 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
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claims with respect to such Retained Liabilities. Subject to the provisions of
Section 13 hereof, it is understood and agreed that all liabilities relating to
the Assets that arise out of any act, event, or transaction of Buyer following
the Closing Date (the "Assumed Liabilities") shall be the responsibility of
Buyer. Seller shall not be required to defend any suit or claim arising out of
any Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due
course all such Assumed Liabilities, and subject to Section 13 hereof Buyer
shall protect and forever hold Seller harmless from all claims with respect to
such Assumed Liabilities.
3. Purchase Price.
(a) The purchase price for the Assets shall be the amount
of Two Hundred Seventy-Six Thousand Seven Hundred and Sixty Dollars
($276,760.00) (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 Site 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 Two Hundred Seventy-Six Thousand Seven Hundred and Sixty
Dollars ($276,760.00), substantially in the form of Exhibit C (the "Purchase
Note").
5. Transfer of Assets.
(a) Transfer of ownership of the Tower and assumption of
the Assumed Liabilities (except for the Ground Lease, which shall be transferred
according to Section 5(c) below) 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.
"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
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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) Assumption of the Ground Lease pursuant to Section 2
hereof shall be pursuant to the Ground Lease Assignment and Assumption Agreement
from Seller to Buyer in the form of Exhibit E attached hereto and incorporated
herein (the "Ground Lease Assignment and Assumption Agreement").
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.
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7. Expenses. All costs and expenses incurred by the Parties in
this transaction, including, but not limited to attorneys' fees, shall be paid
by the party incurring them.
8. Closing; Closing Conditions.
(a) Closing of the transactions contemplated by this
Agreement (the "Closing") shall occur at a place and time mutually agreeable to
Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good
faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be
conditioned upon (i) all representations and warranties of Buyer being then true
and complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Buyer to consummate the transactions contemplated under this Agreement shall
have been obtained, (iii) no order, decree or judgment of any court, agency or
other governmental authority shall have been issued based on or arising out of
the conduct, action, inaction, qualifications or status of Buyer or any of its
affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b) above, 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 Assignment, Xxxx of Sale and Assumption
Agreement;
(ii) The Ground Lease Assignment and Assumption
Agreement;
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(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 F (the "Lease
Agreement").
(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;
(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 F (the "Lease
Agreement"); and
(v) The Ground Lease Assignment 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:
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(a) Seller has good and marketable title to the Tower,
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 which would result in the creation or imposition of
any lien, charge or encumbrance on, or give to others any interest in or right
to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing,
all outstanding obligations for utilities and taxes through the Closing Date,
except for such items as are covered by the proration of items of income and
expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or
filing with, any person, entity, or authority will be required in connection
with the execution and delivery of this Agreement or the transactions
contemplated by this Agreement.
(g) Assuming all consents and approvals required for
Seller to consummate the transactions contemplated under this Agreement shall
have been obtained, neither the execution, delivery, and performance of, nor
Seller's compliance with, the terms and provisions of this Agreement will
conflict with, or result in, a breach of any of the terms, conditions, or
provisions of the Articles of Incorporation or Bylaws of Seller, or any
judgment, order, injunction, decree, regulation, or ruling of any court or any
other governmental authority to which Seller is subject or any material
agreement or contract to which Seller is a party or to which it is subject, or
constitute a material default thereunder.
(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.
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(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.
(d) Buyer acknowledges that the Tower is located on land
which is leased and subject to the Ground Lease. Buyer acknowledges that it has
received a copy of the Ground Lease and that there are no assurances that such
Ground Lease will be extended or, if extended, whether the terms and conditions
of any such extension will be the same as the terms and conditions of the
current Ground Lease.
12. Representations and Warranties Survive Closing.
All of the provisions of this Agreement and of the Closing Documents
and all of the representations, warranties, considerations, and agreements
contained herein and in the Closing Documents shall survive Closing and continue
in full force and effect for a period of twelve (12) months from the Closing
Date; provided that if a claim for indemnification is made by either party under
Section 13 hereof within such twelve (12) month period, the provisions of
Section 13 shall survive until the resolution of such claim. No claim may be
brought under this Agreement unless written notice describing in reasonable
detail the nature of the claim is given on or prior to the last day of the
twelve (12) month period following the Closing Date.
13. Indemnification.
(a) For a period of one (1) year from the date of this
Agreement, Seller shall indemnify, defend, and hold Buyer, its affiliates,
partners, employees, officers, directors, agents, and representatives harmless
from and against any and all reasonable losses, costs, expenses, liabilities,
penalties, claims, and other damages including, but not limited to, reasonable
attorney's fees and other costs and expenses, including reasonable costs of
investigation, reasonably incurred and resulting from:
(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; and
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(iv) any and all losses, liabilities or damages
resulting from Sellers' operations or
ownership of any Tower prior to the Closing
Date, including any and all liabilities
arising under the Assets which relate to
events occurring prior to the Closing Date.
(b) For a period of one (1) year from the date of this
Agreement, Buyer shall indemnify, defend and hold Seller, its affiliates,
employees, officers, directors, agents and representatives harmless from and
against any and all losses, costs, expenses, liabilities, penalties, claims, and
other damages, including but not limited to, reasonable attorney's fees and
other costs and expenses, including reasonable costs of investigations,
reasonably incurred and resulting from:
(i) any breach of Buyer's representations or
warranties, or the breach of any other
provision contained in this Agreement;
(ii) nonfulfillment by Buyer of any of its
covenants or agreements contained herein or
in any Buyer's Closing Document;
(iii) the Assumed Liabilities; and
(iv) any and all losses, liabilities or damages
resulting from Buyer's operations or
ownership of any Tower 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.
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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) Notwithstanding anything in this Agreement to the
contrary, Seller's obligation to indemnify Buyer shall be subject to all of the
following limitations:
(i) The amount of any losses, costs, expenses,
liabilities, penalties, claims, and other
damages ("Losses") incurred by Buyer shall
be reduced by (A) the amount Buyer recovers
(after deducting all attorneys' fees,
expenses, and other out-of-pocket costs of
recovery) from any insurer or other party
liable for such Losses, and Buyer shall use
commercially reasonable efforts to effect
any such recovery and (B) any tax benefit
realized by Buyer or its owners as a result
of any such Loss.
(ii) Buyer shall be entitled to indemnification
only for Losses as to which Buyer has given
Seller written notice describing in
reasonable detail the nature and basis for
such indemnification ("Notice of Claim") on
or prior to the first anniversary of the
Closing Date.
(iii) Any amounts owed to Buyer by Seller pursuant
to this Section 13 shall be limited to
Thirty Thousand Dollars ($30,000.00) and
Seller shall have no other liability or
responsibility for indemnification
hereunder.
(e) 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) 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
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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
Thirty Thousand Dollars ($30,000.00) and
Buyer shall have no other liability or
responsibility for Indemnification
hereunder.
(g) 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:
(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
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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 it 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.
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
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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 Coastal Carolina, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxx
President
Phone: (000) 000-0000
Fax: (000) 000-0000
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 Xxx., 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.
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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 North Carolina.
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.
[Signature page follows]
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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 COASTAL CAROLINA,
INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By:
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
14
15
INDEX OF EXHIBITS
Exhibit A Description of Tower and Tower Site
Exhibit B Ground Lease
Exhibit C Form of Purchase Note
Exhibit D Form of Assignment, Xxxx of Sale and Assumption
Agreement
Exhibit E Form of Ground Lease Assignment and Assumption
Agreement
Exhibit F Form of Lease Agreement
16
EXHIBIT A
DESCRIPTION OF TOWER AND TOWER SITE
WNCT-AM
That certain AM directional array consisting of 6 towers situated on a tract of
land more particularly described as follows:
That certain tract of land situated, lying and being Xxxxxxxxxx Xxxxxxxx, Xxxx
Xxxxxx, Xxxxx xx Xxxxx Xxxxxxxx more particularly described as follows:
Commencing at a point in the center of NC Highway 43, said point being North 46
degrees 12'38" West 2467.67 feet from the center line of the intersection of NC
Xxxxxxx 00 xxx Xxxxx Xxxx 0000, thence North 42 degrees 00'00" East 1755.00 feet
along the property line of Xxxxxx Xxxxxxxx and Xxxxxx Heirs Lands, to the Point
and Place of Beginning, an existing iron pipe on the line with Xxxxxxx Xxxxx
Xxxxxx, thence North 42 degrees 00'00" East 399.99 feet to an existing iron
pipe, thence North 44 degrees 30'04" West 800.10 feet to an existing iron pipe,
thence South 41 degrees 59'24" West 400.02 feet to an existing iron pipe, thence
South 44 degrees 30'13" East 800.02 feet to the Point and Place of Beginning,
containing 7.33 acres more or less.
Together with the right, privilege and easement over, through and across the
lands of the X.X. Xxxxxx Xx. Heirs lands as recorded in Deed Book A42, Page 374,
Pitt County Registry more particularly described as follows: the center line of
said 30 foot easement beginning at a point in the northern right-of-way of NC
Xxxxxxx Xx. 00 leading from Greenville, North Carolina to Falkland, North
Carolina shown as point "A" on map prepared by X.X. Xxxx R.L.S. dated March 18,
1973 and running thence North 32 degrees 15' East 165.00 feet to a point, thence
South 74 degrees 30' East 132.00 feet to a point, thence South 54 degrees 35'
East 89.1 feet to a point, thence South 79 degrees 29' East 112.00 feet to a
point, thence North 56 degrees 50' East 171.60 feet to a point, thence North 88
degrees 00' East 333.50 feet to a point shown as point "B" on the aforesaid map.
Thence North 41 degrees 55' East 1102.80 feet +/- to a point on the southern
boundary of the above described Tract.
Tax Parcel No. 17565
17
EXHIBIT B
GROUND LEASE
18
EXHIBIT C
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$276,760.00 February ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"),
for value received, promises to pay to the order of Xxxxxxx Broadcasting of
Coastal Carolina, Inc., ("Payee"), the principal amount of TWO HUNDRED
SEVENTY-SIX THOUSAND SEVEN HUNDRED AND SIXTY THOUSAND ($276,760.00), 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, in advance, Two Thousand Ninety-Five
Dollars and Eighty-Five Cents ($2,095.85). 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.
19
(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.
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.
2
20
(b) 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.
3. Certain Definitions.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar federal, state or foreign law for the relief of debtors or any
arrangement, reorganization, assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of Payor.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Event of Default" means any of the occurrences specified in
Section 2 of this Note.
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 North Carolina,
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
21
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 Coastal Carolina, 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
22
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
23
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 COASTAL CAROLINA, 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
Tower 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 Tower, such Tower more particularly
described in Exhibit A of the Asset Purchase Agreement; and
b. The Tower Leases.
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 documents to be
executed by Seller or Purchaser, as the case may be, in addition to this
24
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.
[Signature page follows]
25
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 COASTAL CAROLINA,
INC.
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By:
-------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
26
EXHIBIT E
FORM OF GROUND LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is
entered into as of this _____ day of February, 2000 by and between XXXXXXX
BROADCASTING OF COASTAL CAROLINA, INC. ("Assignor"), and XXXXXXX FAMILY TOWERS,
INC., ("Assignee").
WHEREAS, Assignor and Xxxxxxx Broadcasting of Greenville, Inc.
("Greenville"), entered into that certain Lease Agreement, dated June 4, 1996,
where Greenville leased certain real property to Storz (such Lease Agreement
called herein the "Lease");
WHEREAS, Assignor intends to sell and convey to Assignee
certain tower assets used and held for use in the operation of broadcast station
WNCT-AM, Greenville, North Carolina, pursuant to the terms of that certain
Agreement of Sale (the "Purchase Agreement"), dated as of February ___, 2000, by
and between Assignor and Assignee;
WHEREAS, in connection with such transaction, Assignor is
required to assign to Assignee all of Assignor's right, title and interest, as
lessee, in and to the Lease.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Assignment. Assignor hereby transfers, conveys and
assigns to Assignee all of Assignor's right, title and interest in, to and under
the Lease.
2. Assumption of Lease Liabilities. Assignee assumes the
liabilities, duties and obligations of Assignor under the Lease which accrue on
or after the date hereof, and Assignor shall have no further liability or
responsibility therefor.
4. Counterparts. This Assignment may be executed in
counterparts.
[Signature pages follow]
27
IN WITNESS WHEREOF, the undersigned have executed this
Assignment as of the day and year first written above.
[SEAL] ASSIGNOR:
XXXXXXX BROADCASTING OF COASTAL CAROLINA, INC.
ATTEST: By:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: )
--------------------------------------------
) ss.
COUNTY OF )
--------------------------------------------
This is to certify that on the _____ day of February, 2000,
before me personally appeared Xxxxxx X. Xxxxxxx with whom I am personally
acquainted, who, being by me duly sworn, says:
That he is President and B. Xxxxxxxx Xxxxxxx is the Secretary
of XXXXXXX BROADCASTING OF COASTAL CAROLINA, INC., the corporation described in
and which executed the foregoing instrument; that he knows the common seal of
said corporation; that the seal affixed to the foregoing instrument is said
common seal, and the name of the corporation was subscribed thereto by the said
President, attested by said Secretary, and said common seal was affixed, all by
authority duly conferred, and that said instrument is the act and deed of said
corporation.
WITNESS, my hand and notarial seal, this ____ day of February,
2000.
-------------------------------------
NOTARY PUBLIC
My commission expires:
------------------------------
28
[SEAL] ASSIGNEE:
XXXXXXX FAMILY TOWERS, INC.
ATTEST: By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
-------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: )
--------------------------------------------
) ss.
COUNTY OF )
--------------------------------------------
This is to certify that on the _____ day of February, 2000,
before me personally appeared Xxxxxx X. Xxxxxxx with whom I am personally
acquainted, who, being by me duly sworn, says:
That he is Chief Executive Officer and B. Xxxxxxxx Xxxxxxx is
the Secretary of XXXXXXX FAMILY TOWERS, INC., the corporation described in and
which executed the foregoing instrument; that she knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal, and the name of the corporation was subscribed thereto by the said Chief
Executive Officer, attested by said Secretary and said common seal was affixed,
all by authority duly conferred, and that said instrument is the act and deed of
said corporation.
WITNESS, my hand and notarial seal, this ____ day of February,
2000.
-------------------------------------
NOTARY PUBLIC
My commission expires:
-----------------------------------
29
EXHIBIT F
FORM OF LEASE AGREEMENT
30
LEASE AGREEMENT (O&L WNCT-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 COASTAL CAROLINA, INC., a Delaware corporation
("Lessee").
WITNESSETH:
WHEREAS, Lessor owns six communications towers, as such Towers are
described on Exhibit A attached hereto (the "Towers"), on a certain tract of
real estate located at Greenville, North Carolina, 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 on
such land);
WHEREAS, Lessor desires to lease the Tower for the purpose of Lessee's
radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower from Lessor therefor.
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 TOWER. Lessor hereby leases to Lessee, and Lessee
leases from Lessor, the Tower for the purposes of the broadcast transmission of
WNCT-AM, Greenville, North Carolina.
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 Tower 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
31
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 Tower 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 Tower 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 Tower
may be used only for activities related to the operation of radio broadcast
stations. Such operations, shall be conducted in accordance with the standards
imposed by the FCC and any other governmental body with authority over such
transmission and operations.
(b) Except as expressly permitted by this Lease
and unless prior written approval of Lessor has been given, Lessee shall not
construct or make any improvements or install any equipment on the Tower. Lessee
may repair and maintain equipment as it deems necessary to its operations within
Lessee's space in all respects in compliance with the terms hereof. The Tower,
Lessee's interior and exterior equipment, and all other improvements shall be
maintained 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 Tower, at its own expense, as it sees fit and to
fasten additional equipment to the Tower for any purpose, including the right to
install transmitting and/or receiving antennas of others; provided that Lessor
shall use reasonable efforts to restrict any loss of Lessee's service or
interruption pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00
a.m.
(b) Subject to the rights elsewhere granted to
Lessee in this Lease, Lessor shall have the right to use for itself or lease to
others the remainder of the Tower Site or use of any of the improvements
thereon, space in any building constructed by Lessor for any purpose, including,
but not limited to, any kind of broadcasting or communication, simultaneous
transmissions on AM, FM, SSB, VBIF, UHF, and/or microwave frequencies, and all
rental revenues received therefrom shall belong exclusively to Lessor. Prior to
permitting the fastening of a material amount of additional equipment, Lessor
shall cause a structural analysis of the Tower to be conducted by a reputable
mechanical consultant chosen by Lessor in order to ensure that any such
additions conform to recognized engineering standards.
2
32
(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 an initial 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, without any setoff or deduction
whatever, according to the following schedule:
----------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
----------------------------------------------------------------------
1 $25,150.20 $2,095.85
----------------------------------------------------------------------
2 $25,150.20 $2,095.85
----------------------------------------------------------------------
3 $25,150.20 $2,095.85
----------------------------------------------------------------------
4 $25,150.20 $2,095.85
----------------------------------------------------------------------
5 $25,150.20 $2,095.85
----------------------------------------------------------------------
6 $25,150.20 $2,095.85
----------------------------------------------------------------------
7 $25,150.20 $2,095.85
----------------------------------------------------------------------
8 $25,150.20 $2,095.85
----------------------------------------------------------------------
9 $25,150.20 $2,095.85
----------------------------------------------------------------------
10 $25,150.20 $2,095.85
----------------------------------------------------------------------
11 $25,150.20 $2,095.85
----------------------------------------------------------------------
12 $25,150.20 $2,095.85
----------------------------------------------------------------------
13 $25,150.20 $2,095.85
----------------------------------------------------------------------
14 $25,150.20 $2,095.85
----------------------------------------------------------------------
15 $25,150.20 $2,095.85
----------------------------------------------------------------------
16 $25,150.20 $2,095.85
----------------------------------------------------------------------
17 $25,150.20 $2,095.85
----------------------------------------------------------------------
18 $25,150.20 $2,095.85
----------------------------------------------------------------------
19 $25,150.20 $2,095.85
----------------------------------------------------------------------
20 $25,150.20 $2,095.85
----------------------------------------------------------------------
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 this Lease. In the event of prepayment of
the Promissory Note by Lessor or other action resulting in amounts equal
3
33
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 Tower used by Lessee as measured by a separate electrical meter
at Lessee's expense). Lessor shall pay for the electrical service to the Tower
for the Tower lighting.
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 stipulations of this Lease on Lessee's
part to be observed and kept, shall lawfully, peaceably, and quietly hold,
occupy, and enjoy the Tower, 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 Tower 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 TOWER 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 Tower. All such maintenance shall
be conducted by the parties in accordance with good engineering
4
34
standards and in conformity with the requirements of the FCC or any other body
having jurisdiction over the Lessee and its property, including, without
limitation, any rules, regulations, or guidelines of the FCC implementing the
National Environmental Policy Act of 1969 pertaining to electromagnetic or radio
frequency radiation. Each of Lessor and Lessee shall take all reasonable
precautions to avoid interference or hindrance to and with the operations of the
other party hereto. In this regard, each party hereto agrees to eliminate,
without cost to the other party hereto, any interference or hindrance to such
other party's operation. Maintenance and repair of Lessee's Property shall be
performed only by a reputable contractor and in accordance with the provisions
of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's
Property during normal business hours upon reasonable notice to Lessee, except
that, in the event of an emergency, as determined by Lessor, Lessor may enter at
any time, giving notice of such emergency to Lessee as soon as is practical. In
the event that Lessor reasonably determines that Lessee has not maintained
Lessee's Property and equipment in good order and repair according to industry
standards, and that such repairs are necessary for the safety of the Tower or
the Tower Site, or the prevention of interference with Lessor or any other user
of the Tower or any other broadcaster, Lessor may, at its option, make such
emergency repairs to the property as it deems reasonably necessary, and any
amount expended by Lessor therefor shall be reimbursed to it by Lessee
immediately upon presentation of a statement and shall be deemed additional
rent. Lessor shall not be liable for inconvenience, disturbance, loss of
business, or other damage to Lessee by reason of repairing any of Lessee's
Property which Lessee has failed to properly maintain.
(c) With respect to the non-emergency repairs
which Lessor, in its reasonable discretion, determines that Lessee should make
to maintain Lessee's Property and equipment in good order, and that such repairs
are necessary for the safety of the Tower or 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 Tower
unless the Lessee submits to Lessor a copy of the proposed contract and also
detailed plans and specifications of the work to be done, and both the contract
and the plans and specifications have been approved in writing by Lessor not to
be unreasonably withheld, delayed or conditioned. Lessee, upon demand therefor
by Lessor, agrees to pay Lessor as additional rent all amounts reasonably
expended by Lessor in connection with review of any such contract, plans, and
specifications.
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(e) With respect to any work to be performed by
or on behalf of Lessee in connection with the installation, alteration,
maintenance, repair, or removal of any equipment on the Tower (including any
ascension of the Tower), or in or about the Tower Site. Lessee may only employ a
contractor who has been approved in writing and in advance by Lessor. Lessor
agrees that it will not unreasonably withhold its approval of any contractor who
has the requisite experience and industry standard insurance coverage and who
will, at the sole option of Lessor, provide a bond to cover any work which it
has been retained to perform. Lessor agrees to consult on call in any emergency
situation and immediately give its approval or disapproval.
(f) All work by or on behalf of the Lessee or
Lessor shall be carried out (i) in a good and workmanlike manner; (ii) in
accordance with established engineering standards and public ordinances, rules,
and regulations applicable to such work, including, without limitation, any
rules, regulations, or guidelines of the FCC implementing the National
Environmental Policy Act of 1969, pertaining to electromagnetic or radio
frequency radiation; (iii) in accordance with plans and specifications,
including mechanical and electrical drawings, which have been submitted to and
approved in writing and in advance by Lessor; and (iv) in accordance with
Lessor's security procedures with respect to protection of the Tower Site.
(g) Notwithstanding the receipt of the approvals
by Lessor as required in this paragraph, Lessee shall not be relieved of its
responsibilities and liabilities for interference or otherwise as herein
provided, nor shall said approval be deemed a waiver of any other rights of
Lessor under this Lease.
(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
Tower 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.
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9. MAINTENANCE OF TOWER.
9.01 MAINTENANCE OF TOWER.
(a) Lessor shall maintain the Tower in good
repair. Lessee shall comply with any security policies reasonably established
from time to time by Lessor.
(b) Lessor assumes the obligation and
responsibility for complying with the requirements of the FCC regarding
obstruction, marking and lighting of the Tower. Lessor shall maintain the Tower
and support systems in good repair and in good operating condition in accordance
with the requirements of governmental authorities.
(c) In the event that Lessor determines that
repairs, alterations, or improvements are necessary or desirable to the Tower or
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 situated
on the Tower, subject to Paragraph 8.01 and Paragraph 11 hereof, as its
operations may require, including the renovation, replacement, or removal of its
antenna; provided, however, that such changes or alterations conform with
recognized engineering standards and, if necessary, have been approved by the
FCC and any other authority having jurisdiction over Lessee; and provided
further, that plans and specifications are first submitted to and approved in
writing by Lessor. Lessee shall make no changes in the equipment or equipment
position without such approval, and Lessor shall not unreasonably fail to give
such approval within ten (10) business days.
(b) This Lease is based upon carefully computed
tower loading capacity. If any change proposed by Lessee in the type, location,
or positioning of Lessee's
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Property should, in Lessor's judgment, require a computer or other type of
feasibility study to determine Tower loading capacity, 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.
11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation on the Tower after the
date hereof, notification of the particulars of such proposed installation shall
be submitted to Lessor hereto and any other lessees or users of space on the
Tower 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
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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 Tower
shall provide that, should the installation, operation, or maintenance of the
equipment or the activities of such other person cause any objectionable
interference with the operations of Lessor or Lessee, then, promptly after
written notification of such, such other tenant or user, at its sole expense,
will take such steps as may be reasonably necessary to correct such
interference, including, but not limited to, changing frequency, ceasing
transmission, reducing power, and/or the installation of any filter or other
equipment, provided that if such interference is caused by the failure of any
other lessee to comply with the Maintenance Standards, as defined in Paragraph
11.04, such other lessee will, at its sole expense, comply with such Maintenance
Standards. To the best of its ability, Lessor shall not permit any operations by
other tenants, the effect of which would be to prohibit Lessee from operating in
the manner contemplated herein, without the prior written consent of Lessee.
Lessor shall have no liability for any action or omission taken upon reasonable
reliance on the recommendation of qualified engineering personnel. Lessor agrees
that it will take commercially reasonable efforts to ensure that the
installation, operation or maintenance of its equipment which is installed after
the commencement date of this Lease on, in or around the Tower 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 Tower shall (a) maintain and operate its equipment in
accordance with the requirements, rules, regulations, and guidelines of the FCC,
and the standards of manufacturers of the equipment; and (b) maintain and
operate its equipment in accordance with good engineering practice.
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 Tower Site
(including the Tower), and all taxes which may be assessed against the Tower and
any buildings thereon. [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
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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 Tower, including but not limited to, the operations of
contractors and subcontractors and the operation of vehicles and equipment
(including the Tower 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 TOWER INSURANCE. Lessee shall procure and maintain
physical damage insurance on the Tower in an amount sufficient to repair or
replace the Tower 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 TOWER DAMAGE. In the event that the Tower is
destroyed or damaged by fire, lightning, windstorm, flood, earthquake,
explosion, collapse, aircraft, or other vehicle damage or other casualty covered
by insurance, Lessor shall promptly reconstruct or repair the Tower 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 Tower is 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
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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 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 Tower without significant diminution of
signal quality as a result of such total or partial destruction or damage or
need of repair, and Lessor shall refund to Lessee any rent paid in advance for
such time. Should Lessor not either (a) inform Lessee in writing within ninety
(90) days of the date of destruction of Lessor's intent to replace the Tower or
(b) replace the Tower 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 Tower damage (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 (or any portion of
the Tower necessary for the guy wires, or other appurtenances necessary to
Lessee's broadcasting operations) is acquired or transferred or condemned
pursuant to eminent domain proceedings (or the threat thereof), the obligation
of the parties under this Lease shall be terminated as of the date of
acquisition or transfer. Lessor shall be entitled to the entire condemnation
award. If Lessor determines to build a new tower as a replacement for the Tower
on the condemned property, Lessor agrees to lease the new tower 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
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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
(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 Tower 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 Tower 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
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appointed for Lessee or the Tower, 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 Tower by reasonably necessary force, summary
proceedings, or otherwise, and remove all persons and properly therein, without
being liable to indictment, prosecution, or damage therefor, and Lessee hereby
expressly waives the service of any notice in writing of intention to reenter
said Tower. Lessor may, in addition to any other remedy provided by law or
permitted herein, at its option, relet the Tower (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 North Carolina 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 Tower 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
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Lease; (b) out of the use, management, or occupancy of the Tower by Lessor, its
agents, or invitees; (c) out of any omissions, negligence or willful misconduct
of Lessor, its agents, servants, employees, licensees, or invitees; (d) out of
failure of Lessor to comply with any laws, statutes, ordinances, or regulations;
(e) out of Lessor's failure to maintain equipment in proper working order; and
(f) out of Lessor's failure to comply with any of its other obligations under
the terms of this Lease.
(c) Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other party ("Indemnifying Party")
reasonably prompt notice of known claims giving rise to any claim for indemnity,
and the Indemnifying Party shall have the right and opportunity to undertake the
legal defense of such claims. The Indemnified Party and its counsel may
nevertheless participate in (but not control) such proceedings, negotiations, or
defense at its own expense. In all such cases, the Indemnified Party will give
all reasonable assistance to the Indemnifying Party, including making the
Indemnified Party's employees and documents available as reasonably requested
without charge.
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 Tower, or, if any of the Tower
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.
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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 North
Carolina.
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.
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0000 Xxxxxxx Xxxxx, Xxxxx
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 Coastal Carolina, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx 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 Tower,
or Tower Site, or for any loss or damage to Lessee's Property caused by fire,
water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or
materials falling from the Tower, or the malfunction of any utility, facility,
or installation, or by reason of any other existing condition or defect in the
Tower; nor shall Lessor be liable or responsible to the Lessee for any injury or
damage suffered by the Lessee and allegedly caused by technical interference
with the Lessee's operations, by the activities of any other tenants or users of
the Tower 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.
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21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of any
documentary stamps occasioned by this Lease should it wish to record this Lease.
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 Tower 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 COASTAL
CAROLINA, INC.
By: (SEAL)
---------------------------- -------------------------------
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A
DESCRIPTION OF WNCT-AM TOWERS
That certain AM directional array consisting of 6 towers situated on a tract of
land more particularly described as follows:
That certain tract of land situated, lying and being Xxxxxxxxxx Xxxxxxxx, Xxxx
Xxxxxx, Xxxxx xx Xxxxx Xxxxxxxx more particularly described as follows:
Commencing at a point in the center of NC Highway 43, said point being North 46
degrees 12'38" West 2467.67 feet from the center line of the intersection of NC
Xxxxxxx 00 xxx Xxxxx Xxxx 0000, thence North 42 degrees 00'00" East 1755.00 feet
along the property line of Xxxxxx Xxxxxxxx and Xxxxxx Heirs Lands, to the Point
and Place of Beginning, an existing iron pipe on the line with Xxxxxxx Xxxxx
Xxxxxx, thence North 42 degrees 00'00" East 399.99 feet to an existing iron
pipe, thence North 44 degrees 30'04" West 800.10 feet to an existing iron pipe,
thence South 41 degrees 59'24" West 400.02 feet to an existing iron pipe, thence
South 44 degrees 30'13" East 800.02 feet to the Point and Place of Beginning,
containing 7.33 acres more or less.
Together with the right, privilege and easement over, through and across the
lands of the X.X. Xxxxxx Xx. Heirs lands as recorded in Deed Book A42, Page 374,
Pitt County Registry more particularly described as follows: the center line of
said 30 foot easement beginning at a point in the northern right-of-way of NC
Xxxxxxx Xx. 00 leading from Greenville, North Carolina to Falkland, North
Carolina shown as point "A" on map prepared by X.X. Xxxx R.L.S. dated March 18,
1973 and running thence North 32 degrees 15' East 165.00 feet to a point, thence
South 74 degrees 30' East 132.00 feet to a point, thence South 54 degrees 35'
East 89.1 feet to a point, thence South 79 degrees 29' East 112.00 feet to a
point, thence North 56 degrees 50' East 171.60 feet to a point, thence North 88
degrees 00' East 333.50 feet to a point shown as point "B" on the aforesaid map.
Thence North 41 degrees 55' East 1102.80 feet +/- to a point on the southern
boundary of the above described Tract.
Tax Parcel No. 17565
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EXHIBIT B
DESCRIPTION OF WNCT-AM TOWER SITE
That certain tract of land situated, lying and being Xxxxxxxxxx Xxxxxxxx, Xxxx
Xxxxxx, Xxxxx xx Xxxxx Xxxxxxxx more particularly described as follows:
Commencing at a point in the center of NC Highway 43, said point being North 46
degrees 12'38" West 2467.67 feet from the center line of the intersection of NC
Xxxxxxx 00 xxx Xxxxx Xxxx 0000, thence North 42 degrees 00'00" East 1755.00 feet
along the property line of Xxxxxx Xxxxxxxx and Xxxxxx Heirs Lands, to the Point
and Place of Beginning, an existing iron pipe on the line with Xxxxxxx Xxxxx
Xxxxxx, thence North 42 degrees 00'00" East 399.99 feet to an existing iron
pipe, thence North 44 degrees 30'04" West 800.10 feet to an existing iron pipe,
thence South 41 degrees 59'24" West 400.02 feet to an existing iron pipe, thence
South 44 degrees 30'13" East 800.02 feet to the Point and Place of Beginning,
containing 7.33 acres more or less.
Together with the right, privilege and easement over, through and across the
lands of the X.X. Xxxxxx Xx. Heirs lands as recorded in Deed Book A42, Page 374,
Pitt County Registry more particularly described as follows: the center line of
said 30 foot easement beginning at a point in the northern right-of-way of NC
Xxxxxxx Xx. 00 leading from Greenville, North Carolina to Falkland, North
Carolina shown as point "A" on map prepared by X.X. Xxxx R.L.S. dated March 18,
1973 and running thence North 32 degrees 15' East 165.00 feet to a point, thence
South 74 degrees 30' East 132.00 feet to a point, thence South 54 degrees 35'
East 89.1 feet to a point, thence South 79 degrees 29' East 112.00 feet to a
point, thence North 56 degrees 50' East 171.60 feet to a point, thence North 88
degrees 00' East 333.50 feet to a point shown as point "B" on the aforesaid map.
Thence North 41 degrees 55' East 1102.80 feet +/- to a point on the southern
boundary of the above described Tract.
Tax Parcel No. 17565
