AGREEMENT OF SALE (O&O)
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This Agreement of Sale (the "Agreement") is made this ___ day of
December, 2000, between Xxxxxxx Broadcasting of Augusta, Inc., a Delaware
corporation (the "Seller") and Xxxxxxx Family Towers, Inc., a Delaware
corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprising one
parcel of real property and one (1) communications tower facilities (the
"Tower"), located in New Ellanton, SC and used in connection with the operation
of radio broadcast station WAJY-FM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Tower and certain real and personal property belonging to Seller and associated
with the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Agreement to Sell and Purchase.
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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) That certain tract of land, and easements or appurtenances
incident to such tract of land, that are associated with the Tower Site
(collectively, such land, easements and appurtenances, the "Land"), and the
Tower, such Tower and the Land more particularly described in Exhibit A attached
hereto and incorporated herein; and
(b) The lease for use of space the Tower located at the Tower
Site and certain real property within the Tower Site as more particularly
discussed in Section 5(d) of this Agreement.
2. Assumption of Liabilities.
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(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
Tower Lease and with respect to the ownership of the Land and Tower, and the
operation of the business relating to the Assets (as defined in Section 5(d)
hereof) (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 claims with respect to such Retained Liabilities. It is understood and
agreed that all liabilities relating to the Assets that arise out of any act,
event, or transaction of Buyer following the Closing Date (the "Assumed
Liabilities") shall be the responsibility of Buyer. Seller shall not be required
to defend any suit or claim arising out of any Assumed Liabilities, and Buyer
shall and hereby agrees to satisfy in due course all such Assumed Liabilities,
and subject to Section 13 hereof Buyer shall protect and forever hold Seller
harmless from all claims with respect to such Assumed Liabilities.
3. Purchase Price.
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(a) The purchase price for the Assets shall be the amount of One
Hundred Fifty One Thousand Two Hundred Fifty Dollars ($151,250.00) (the
"Purchase Price"). The Purchase Price shall be adjusted at the Closing by the
amount of any prorations derived by operation of Section 6 hereof, and for any
other normal income and expense items related to the operation of the Tower
Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price
shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the
Purchase Price, the Assumed Liabilities and other relevant items among the
Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Buyer and Seller will each report the federal, state, and
local and other tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
4. Delivery of Purchase Price.
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(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 One Hundred Fifty One Thousand Two Hundred Fifty Dollars
($151,250.00), substantially in the form of Exhibit B (the "Purchase Note").
5. Transfer of Tower; Title Insurance.
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(a) Transfer of title to the Land shall be by deed from the
Seller to the Buyer (a "Deed"), which Deed shall be in the form of Exhibit C
attached hereto and incorporated herein. Transfer of ownership of the Tower and
assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be
pursuant to the Assignment, Xxxx of Sale and Assumption Agreement from the
Seller to Buyer in the form of Exhibit D attached hereto and incorporated herein
(the "Assignment, Xxxx of Sale and Assumption Agreement").
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(b) The Assets shall be transferred to Buyer free and clear of
all liens, encumbrances other than Permitted Encumbrances, if any; otherwise the
title to the Land shall be good and marketable or such as will be insured by a
reputable title insurance company at regular rates. "Permitted Encumbrances"
shall mean: (i) encumbrances for taxes, assessments, or governmental charges or
levies which are not yet due and payable, or that, subject to adequate security
for payment, are being contested; (ii) existing building restrictions,
ordinances, easements of roads, privileges, or rights of public service
companies or other rights of way, other restrictions or conditions of record, if
any or other encumbrances disclosed in this Agreement (including the Exhibits
attached hereto); (iii) easements, rights of way or other encumbrances that do
not have a material adverse effect on the Assets or the operation of the
business relating to the Assets as currently operated; (iv) encumbrances imposed
by law, such as materialmen's, mechanic's, carrier's, workmen's, or repairmen's
liens or other similar encumbrances attaching in the ordinary course of business
or securing obligations that are not overdue; (v) encumbrances securing
indebtedness, which will be removed prior to or at the Closing; and (vi)
encumbrances pursuant to contracts and leases to be assumed by Buyer pursuant to
Section 2.
(c) As soon as practicable following the Closing, or at such
other time as the parties agree, Seller, at its expense, shall obtain and
deliver to Buyer a commitment for title insurance (the "Title Commitment")
issued by a nationally recognized title company in the ALTA Owner's Form Policy
of Title Insurance (each a "Title Policy" and collectively, "Title Policies")
covering each tract of Land, setting forth the current status of title thereto,
showing all recorded liens, claims, encumbrances, easements, rights-of-way,
encroachments, reservations, restrictions and any other matters of public record
affecting title to the Land pursuant to which such title company agrees to issue
to Buyer the Title Policies. The cost of the Title Policies shall be borne by
the Buyer. Seller shall execute such customary documents as the title company
reasonably requests, including, but not limited to, an affidavit of debts and
liens and customary closing statements.
(d) Buyer and Seller acknowledge that the Tower is occupied by a
tenant pursuant to a tower lease between such tenant and the Seller, for space
on the Tower, such tower lease made effective prior to the effective date of
this Agreement (the "Tower Lease"). Buyer acknowledges receipt of copies of the
Tower Lease from Seller. At Closing, Seller will assign all of its right, title,
and interest in the Tower Lease to Buyer, and Buyer shall assume the obligations
under such Tower Lease, in the Assignment, Xxxx of Sale and Assumption
Agreement. In the event that the Buyer receives after Closing any lease payments
from the tenant pursuant to the Tower Lease for rent that accrued prior to
Closing, Buyer shall remit such lease payments promptly to Seller. Conversely,
in the event Seller receives after Closing any lease payments from the tenant
pursuant to the Tower Lease for rent that accrued after Closing, Seller shall
remit such lease payments promptly to Buyer.
6. Apportionment of Real Estate Taxes, Rent, Utilities.
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(a) Current real estate taxes, rent, utilities and all other
normal income and expense items related to the Assets shall be apportioned
between the parties to reflect the principle that all expenses and income
arising from the operation of the Assets up through the Adjustment Time shall be
for the account of Seller, and all expenses and income arising from the
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operation of the business relating to the Assets acquired by Buyer after the
Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at
such other time as the parties agree, Buyer shall deliver to Seller a
certificate from Buyer which sets forth as of the Adjustment Time, all
adjustments to be made as provided in Section 6(a) above (the "Buyer's
Certificate"). Buyer shall provide Seller or its representatives access to
copies of such portions of books and records Seller may reasonably request
solely for the purposes of verifying such adjustments. The Buyer's Certificate
shall be final and conclusive unless objected to by Seller in writing within
ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach
agreement as to the amount of the adjustments to be made hereunder within thirty
(30) days after receipt of such written objection, which agreement, if achieved,
shall be binding upon all parties to this Agreement and not subject to dispute
or review.
(c) In the event of a disagreement between Buyer and Seller with
respect to the accounting to be made hereunder, the parties agree that a public
accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of
such disagreement.
(d) Any amounts due for the adjustments provided for herein
shall be paid within thirty (30) business days after final determination.
7. Expenses.
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(a) Seller and Buyer shall share equally the costs of
preparation of the Deeds, acknowledgement of the Deeds, Federal, state and local
revenue stamps, and real estate transfer taxes.
(b) All other costs and expenses incurred by the Parties in this
transaction, including, but not limited to attorneys' fees, shall be paid by the
party incurring them .
8. Closing; Closing Conditions.
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(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
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transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b), and (v) the delivery by Buyer of Buyer's Closing Documents (as defined in
Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned upon
(i) all representations and warranties of Seller being then true and complete in
all material respects as if made on and as of the Closing Date, except to the
extent that any such representation or warranty is made as of a specific date,
in which case such representation or warranty shall have been true and correct
as of such date, (ii) all consents of third parties required for Seller to
consummate the transactions contemplated under this Agreement shall have been
obtained, (iii) no order, decree or judgment of any court, agency or other
governmental authority shall have been issued based on or arising out of the
conduct, action, inaction, qualifications or status of Seller or any of its
affiliates, which would render it unlawful as of the Closing Date to effect that
transactions contemplated by this Agreement in accordance with its terms, and
(iv) the delivery by Seller of Seller's Closing Documents as set forth in
Section 9 hereof.
9. Closing Deliveries.
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(a) At Closing, Seller shall execute and/or deliver to Buyer the
following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Xxxx of Sale and Assumption
Agreement;
(iii) A certificate from an officer of Seller reasonably
acceptable to Buyer confirming the accuracy of the
representations and warranties in Section 10 as of
the Closing Date;
(iv) Authorizing resolutions or minutes from Seller
approving this Agreement and the transactions
contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is
not a "foreign person" (as defined in Section
1445(f)(3) of the Code and the regulations issued
thereunder); and
(vi) 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; and
(ii) the Assignment, Xxxx of Sale and Assumption
Agreement;
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(iii) 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;
(iv) The Purchase Note executed by a duly authorized
officer of Buyer; and
(v) A lease agreement, by and between Buyer, as
lessor, and Seller, as lessee, substantially in
the form of Exhibit F (the "Lease Agreement").
(c) Seller's Closing Documents and Buyer's Closing Documents
shall be collectively called herein the "Closing Documents". Buyer and Seller
agree that such other documents as may be legally necessary or appropriate to
carry out the terms of this Agreement or as reasonably requested by the other
party shall be executed and delivered by the appropriate party at Closing.
10. Representations and Warranties of Seller.
----------------------------------------
As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows :
(a) Seller has good and marketable title to the Tower and the
Land (or such condition of title as will be insured by any reputable title
insurance company at their regular rates), and the Assets are free and clear of
liens, encumbrances, restrictions and security interests other than Permitted
Encumbrances.
(b) Seller has full power and authority to execute and deliver
this Agreement and Seller's Closing Documents, and to perform its obligations
hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Seller,
enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with,
or result in, a breach of the terms of any agreements or instruments to which
the Seller is a party or which would result in the creation or imposition of any
lien, charge or encumbrance on, or give to others any interest in or right to,
any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all
outstanding obligations for utilities and taxes through the Closing Date except
for such items as are covered by the proration of items of income and expense as
set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with,
any person, entity, or authority will be required in connection with the
execution and delivery of this Agreement or the transactions contemplated by
this Agreement.
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(g) Assuming all consents and approvals required for Seller to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Seller's
compliance with, the terms and provisions of this Agreement will conflict with,
or result in, a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Seller, or any judgment, order,
injunction, decree, regulation, or ruling of any court or any other governmental
authority to which Seller is subject or any material agreement or contract to
which Seller is a party or to which it is subject, or constitute a material
default thereunder.
(h) Seller is not a foreign person within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations
issued thereunder.
11. Representations and Warranties of Buyer.
---------------------------------------
As a material inducement to Seller to enter into this Agreement, Buyer
represents and warrants to Seller as follows:
(a) Buyer has full power and authority to execute and deliver
this Agreement and Buyer's Closing Documents, and to perform its respective
obligations hereunder and thereunder.
(b) This Agreement and Buyer's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Buyer enforceable
against Buyer, in accordance with their terms.
(c) Assuming all consents and approvals required for Buyer to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Buyer's
compliance with, the terms and provisions of this Agreement will conflict with
or result in a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Buyer or any judgment, order, injunction,
decree, regulation, or ruling of any court or any other governmental authority
to which Buyer is subject or any material agreement or contract to which Buyer
is a party or to which it is subject, or constitute a material default
thereunder.
12. Representations and Warranties Survive Closing.
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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 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.
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13. Indemnification.
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(a) Seller shall indemnify, defend, and hold Buyer, its
affiliates, partners, employees, officers, directors, agents, and
representatives harmless from and against any and all reasonable losses, costs,
expenses, liabilities, penalties, claims, and other damages including, but not
limited to, reasonable attorney's fees and other costs and expenses, including
reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or
warranties, or the breach of any other provision
contained in this Agreement;
(ii) nonfulfillment by Seller of any of its covenants
or agreements contained herein or in any Seller's
Closing Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages
resulting from Sellers' operations or ownership of
any Tower Site prior to the Closing Date,
including any and all liabilities arising under
the Assets which relate to events occurring prior
to the Closing Date.
(b) Buyer shall indemnify, defend and hold Seller, its
affiliates, employees, officers, directors, agents and representatives harmless
from and against any and all losses, costs, expenses, liabilities, penalties,
claims, and other damages, including but not limited to, reasonable attorney's
fees and other costs and expenses, including reasonable costs of investigations,
reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties,
or the breach of any other provision contained in this
Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or
agreements contained herein or in any Buyer's Closing
Document;
(iii) the Assumed Liabilities;
(iv) any and all losses, liabilities or damages resulting
from Buyer's operations or ownership of any Tower Site
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
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Party prompt written notice, with reasonable detail, of such claim. Upon receipt
of such notice by the Indemnified Party to the Indemnifying Party, the
Indemnifying Party shall have the option of defending against such pending
litigation through engagement of legal counsel of its choice, provided, however,
that the Indemnifying Party's choice of legal counsel must be acceptable to the
Indemnified Party in its reasonable discretion. In the event the Indemnifying
Party elects to defend, the Indemnifying Party shall keep the Indemnified Party
fully informed on a timely basis of the status of the pending litigation. In the
event that the Indemnifying Party elects to defend and is unsuccessful in such
defense, it shall promptly pay to the Indemnified Party any and all losses,
costs, expenses, liabilities, penalties, claims and other damages as described
above, including but not limited to, reasonable attorney's fees and other costs
and expenses associated with the pending litigation being so defended. In the
event the Indemnifying Party elects not to defend and the Indemnified Party
defends, but is unsuccessful, then the Indemnifying Party shall promptly pay to
the Indemnified Party any and all losses, costs, expenses, liabilities,
penalties, claims and other damages, as described above, including, but not
limited to, reasonable attorney's fees and other costs and expenses incurred,
including reasonable costs of investigation. In the event that Indemnifying
Party elects not to defend and the Indemnified Party defends successfully, then
the Indemnifying Party shall promptly pay to the Indemnified Party any and all
costs and expenses incurred, including, but not limited to, reasonable
attorney's fees and other costs and expenses incurred, including reasonable
costs of investigation. The Indemnifying Party shall reimburse the Indemnified
Party upon demand for any payment made by the Indemnified Party at any time
after Closing, based on the final judgement of any court of competent
jurisdiction or pursuant to a bona fide compromise or settlement of claims,
demands or actions in respect to any damages to which the foregoing
indemnification relates.
(d) Limitations on Seller Indemnification. Notwithstanding
-------------------------------------
anything in this Agreement to the contrary, Seller's obligation to indemnify
Buyer shall be subject to all of the following limitations:
(i) The amount of any losses, costs, expenses,
liabilities, penalties, claims, and other damages
("Losses") incurred by Buyer shall be reduced by (A)
the amount Buyer recovers (after deducting all
attorneys' fees, expenses, and other out-of-pocket
costs of recovery) from any insurer or other party
liable for such Losses, and Buyer shall use
commercially reasonable efforts to effect any such
recovery and (B) any tax benefit realized by Buyer or
its owners as a result of any such Loss.
(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
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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 Twenty Thousand Dollars
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($20,000.00) and Seller shall have no other liability
or responsibility for indemnification hereunder.
(e) Buyer's Exclusive Remedy. Subsequent to the Closing,
------------------------
indemnification under this Section 13 shall be the exclusive remedy of Buyer
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
(f) Limitation on Buyer's Indemnification. Notwithstanding
-------------------------------------
anything in this Agreement to the contrary, Buyer's obligation to indemnify
Seller shall be subject to all of the following limitations:
(i) The amount of any Losses incurred by Seller shall be
reduced by (A) the amount Seller recovers (after
deducting all attorneys' fees, expenses and other
out-of-pocket costs of recovery) from any insurer or
other party liable for such Losses, and Seller shall
use commercially reasonable efforts to effect any
such recovery and (B) any tax benefit realized by
Buyer or its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for
Losses as to which Seller has given Buyer a Notice of
Claim on or prior to the first anniversary of the
Closing Date.
(iii) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Twenty Thousand
Dollars ($20,000.00) and Buyer shall have no other
liability or responsibility for Indemnification
hereunder.
(g) Seller's Exclusive Remedy. Subsequent to the Closing,
-------------------------
indemnification under this Section 13 shall be the exclusive remedy of Seller
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
14. Termination; Liquidated Damages
-------------------------------
(a) Right of Termination. This Agreement may be terminated prior
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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.
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(b) Obligations Upon Termination.
----------------------------
(i) Upon termination of this Agreement, each party shall
thereafter remain liable for breach of this Agreement
prior to such termination and remain liable to pay and
perform any obligation under Section 13.
(ii) If Closing shall not have occurred, Seller's sole
remedy at law or in equity for any breach or default
by Buyer described in Section 14(a)(i)(A) shall be the
termination by Seller of this Agreement by giving of
written notice to Buyer pursuant to Section
14(a)(i)(A).
(c) Termination Notice. Each notice given by a party pursuant to
------------------
Section 14(a) to terminate this Agreement shall specify the subsection of
Section 14(a) pursuant to which such notice is given. If at the time a party
gives a termination notice, such party is entitled to give such notice pursuant
to more than one subsection of Section 14(a), the subsection pursuant to which
such notice is given and termination is effected shall be deemed to be the
subsection specified in such notice provided that the party giving such notice
is at such time entitled to terminate this Agreement pursuant to the specified
subsection.
15. Default; Disputes.
-----------------
If Seller fails to perform under this Agreement, the Buyer may
exercise any right he has against the Seller, including bringing an action for
specific performance. The remedies provided by this Section are in addition to
any right or remedies provided elsewhere in this Agreement or at law or in
equity. In the event a dispute arises between the Parties over the
interpretation of this Agreement, or the performance, alleged non-performance or
breach by either Party hereunder, the Parties hereby agree to seek resolution of
such dispute in good faith through an alternative dispute resolution process
mutually agreeable to the Parties prior to the institution of any legal
proceedings related thereto.
16. Liabilities.
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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.
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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.
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This Agreement may not be changed, modified or amended, in whole or in
part, except in writing, signed by all parties.
20. Notice.
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Notices given pursuant to this Agreement shall be in writing and shall
be given by actual delivery or by mailing the same to the party entitled thereto
at the addresses set forth below or at any such other address as any Party may
designate in writing to any other Party pursuant to the provisions of this
Section. Notice given by mail shall be sent by United States mail, certified or
registered, return receipt requested or by nationally recognized courier
serviced providing receipt of delivery. Notices shall be deemed to be received
on the date of actual receipt, in the case of personal delivery, or on the date
of mailing, in the case of mailing. Notices shall be served or mailed to the
following addresses, subject to change as provided above:
If to the Seller: Xxxxxxx Broadcasting of Augusta, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Buyer: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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21. Construction.
------------
Whenever used in this Agreement the singular shall include the plural,
the plural the singular, and the use of any gender shall be applicable to all
genders.
22. Assignment and Recording.
------------------------
Seller hereby covenants not to assign or record this Agreement except
with the prior written consent of the Buyer. Buyer may assign this Agreement
freely to any affiliated entity, provided such assignment shall not relieve
Buyer of its obligations hereunder.
23. Binding Effect.
--------------
This Agreement and all of its terms and conditions shall extend to and
be binding upon the Parties hereto and upon their respective heirs, executors,
administrators, successors and assigns.
24. Further Assurances.
------------------
Seller and Buyer agree to execute and deliver any further documents or
assurances that in law or otherwise are necessary, desirable or proper to
consummate the transactions contemplated by this Agreement and to vest, perfect,
assign or confirm, of record or otherwise, in Buyer title to the Assets.
25. Governing Law.
-------------
This Agreement is made and shall be governed by and construed in
accordance with the internal laws of the State of South 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.
13
29. Severability.
------------
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then such provision shall be
severed from this Agreement and the remainder shall remain in full force and
effect.
30. Covenant of Seller.
------------------
Seller shall make all reasonable efforts to resolve any title or
restriction issues prior to the Closing, but will continue these efforts
subsequent to the Closing to the extent reasonably necessary.
14
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 AUGUSTA, INC.
By: _________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By: _________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
INDEX OF EXHIBITS
-----------------
Exhibit A Description of Land and Tower
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Xxxx of Sale and
Assumption Agreement
Exhibit E Form of Lease Agreement
EXHIBIT A
---------
DESCRIPTION OF LAND AND TOWER
WAJY-FM
That certain communications tower situated on that certain tract of land more
particularly described as follows:
[INSERT LEGAL DESCRIPTION]
EXHIBIT B
---------
FORM OF PURCHASE NOTE
PROMISSORY NOTE
---------------
$51,250.00 December ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for
value received, promises to pay to the order XXXXXXX BROADCASTING OF AUGUSTA,
INC. a Delaware corporation, ("Payee"), the principal amount of ONE HUNDRED
FIFTY ONE THOUSAND TWO HUNDRED FIFTY DOLLARS ($151,250.00), together with
accrued interest thereon, calculated and payable as set forth below in this
Note. The principal and interest on this Note is payable in lawful money of the
United States of America in immediately available funds at such place in the
United States as Payee may from time to time designate in writing to Payor.
This Note is made pursuant to that certain Agreement of Sale (the
"Sale Agreement"), dated December ____, 2000, by and among Payor and Payee.
1. Payment of Principal and Interest.
---------------------------------
(a) Calculation and Payment of Interest. Interest on the
-----------------------------------
principal balance of this Note outstanding from time to time until paid in full
shall accrue at the rate of six and seventy-seven one hundredths percent (6.77%)
compounded annually (the "Rate"), computed on the basis of a 365 or 366-day
year, as appropriate, for the actual number of days elapsed, commencing on the
date hereof.
(b) Payments Prior to Maturity Date. On the first day of each
-------------------------------
month Maker shall pay, in advance, ONE THOUSAND ONE HUNDRED FIFTY ONE DOLLARS
AND EIGHTY SIX CENTS ($1,151.86). 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.
(ii) Any prepayment of this Note shall be applied as
follows: first, to payment of accrued interest; and
-----
second, to payment of principal.
------
2. Events of Default.
-----------------
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this
Note when the same shall become due and payable (whether at maturity or
otherwise) and the continuation of such failure for a period of ninety (90)
days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or
for all or any substantial portion of its property or
assets;
(iv) makes a general assignment for the benefit of its
creditors; or
(c) an involuntary case or proceeding is commenced against Payor
under any Bankruptcy Law and is not dismissed, bonded or discharged within
ninety (90) days thereafter, or a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case or
proceeding;
(ii) appoints a Custodian of Payor or for all or
substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case the
order or decree remains unstayed and in effect for
ninety (90) days.
(d) The following terms used in this Note have the meanings
assigned below:
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
--------------
federal, state or foreign law for the relief of debtors or any arrangement,
reorganization, assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of Payor.
2
"Custodian" means any receiver, trustee, assignee, liquidator,
---------
custodian or similar official under any Bankruptcy Law.
"Event of Default" means any of the occurrences specified in Section 2
----------------
of this Note.
If any Event of Default shall have occurred and be continuing, Payee
may proceed to protect and enforce its rights either by suit in equity or by
action at law, or both, whether for specific performance of any provision of
this Note or in aid of the exercise of any power granted to Payee under this
Note.
3. Assignment.
----------
The holders of this Note may not assign or otherwise transfer all or
any portion of their rights and obligations under this Note to any other person
or entity, without the prior written consent of the Payor, which consent shall
not be unreasonably withheld.
4. Miscellaneous.
-------------
(a) Section Headings. The section headings contained in this
----------------
Note are for reference purposes only and shall not affect the meaning or
interpretation of this Note.
(b) Amendment and Waiver. No provision of this Note may be
--------------------
amended or waived unless Payor shall have obtained the written agreement of
Payee. No failure or delay in exercising any right, power or privilege hereunder
shall imply or otherwise operate as a waiver of any rights of Payee, nor shall
any single or partial exercise thereof preclude any other or future exercise
thereof or the exercise of any other right, power or privilege. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
(c) Successors, Assigns and Transferors. The foregoing, the
-----------------------------------
obligations of Payor and Payee under this Note shall be binding upon, and inure
to the benefit of, and be enforceable by, Payor and Payee, and their respective
successors and permitted assigns, whether or not so expressed.
(d) Governing Law. This Note shall be governed by, and construed
-------------
in accordance with, the laws of the State of South Carolina without giving
effect to any conflicts of laws principles thereof that would otherwise require
the application of the law of any other jurisdiction.
3
(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:
If to Payor, addressed to:
Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Payee, addressed to:
Xxxxxxx Broadcasting of Augusta, 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
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of
the date hereinabove first written.
XXXXXXX FAMILY TOWERS, INC.
By: _____________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
5
EXHIBIT C
---------
FORM OF DEED
EXHIBIT D
---------
FORM OF ASSIGNMENT, XXXX OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Xxxx of Sale and Assumption Agreement (this "Agreement") is
made effective as of 12:01 a.m. Eastern Time, on the ____ day of December, 2000
by and between XXXXXXX BROADCASTING OF AUGUSTA, 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 December ___, 2000 by and between Seller and
Purchaser. Capitalized terms used but not defined herein shall have the
meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell, convey
and assign to Purchaser all of Seller's right, title and interest to the 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 described in Exhibit A of the Asset Purchase
Agreement; and
b. The Tower Lease.
Items a. and b. above are hereinafter referred to as the "Assigned Assets."
2. Purchaser hereby accepts the sale, conveyance and assignment of
the Assigned Assets, effective as of 12:01 a.m. Eastern Time on December __,
2000.
3. Purchaser hereby assumes and agrees to pay and perform the
Assumed Liabilities pursuant to Section 2 of the Asset Purchase Agreement,
effective as of 12:01 a.m. Eastern Time on December __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request
of the other party, promptly obtain, execute and deliver, or cause to be
obtained, executed and delivered, to the other party such assignments, bills of
sale, endorsements, and other such instruments or
documents to be executed by Seller or Purchaser, as the case may be, in addition
to this Agreement, in form and substance reasonably satisfactory to the other
party, as such other party may reasonably deem necessary or desirable so as (i)
to vest in Purchaser title to and possession of the Assigned Assets and (ii) to
perfect and record, if necessary, the sale, assignment, conveyance, transfer and
delivery to Purchaser of the Assigned Assets.
5. This Agreement is made pursuant to, and is subject to all of the
terms, representations, warranties and covenants of, the Asset Purchase
Agreement, the terms of which are hereby incorporated by reference. In the
event of any conflict between this Agreement and the Asset Purchase Agreement,
the terms of the Asset Purchase Agreement shall govern.
2
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the day and year first written above.
SELLER:
XXXXXXX BROADCASTING OF AUGUSTA, INC.
By: ________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By: ________________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
EXHIBIT E
---------
FORM OF LEASE AGREEMENT
LEASE AGREEMENT (O&O - WAJY-FM)
-------------------------------
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX BROADCASTING OF AUGUSTA, INC., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower described on Exhibit A
attached hereto, (the "Tower"), together with other improvements on a certain
tract of real estate located in New Ellanton, South Carolina and described in
Exhibit B attached hereto (hereinafter referred to as the "Tower Site"; the term
"Tower Site" shall also include any appurtenant
3
easements or improvements on such land, including, without limitation, any
buildings or other structures, but not including that certain transmitter
building owned by a tenant of Lessor);
WHEREAS, Lessor desires to lease the Tower Site and space on the Tower
for the purpose of Lessee's radio transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and space on the Tower
from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
Lease Commencement.
------------------
Commencement of Term. The term of this Lease and the payment of
rent and other performances in accordance with the terms of this Lease shall
commence on the date hereof.
Exhibits. All Exhibits referred to in this Lease are incorporated
herein by reference.
Description of the Leasehold.
----------------------------
Leased Premises. Lessor hereby leases to Lessee, and Lessee
leases from Lessor, with a right of access thereto and parking therefor in
accordance with Section 9:
Space on the Tower, as more fully described in Exhibit C
hereto, for the purpose of the broadcast transmission
of WAJY-FM, New Ellanton, South Carolina; and
Space in the transmitter building owned by Lessor and
located on the Tower Site, as such space is more fully
described in Exhibit D hereto (the "Transmitter
Building") for the purposes of the housing, operation
and maintenance of Lessee's transmitter and related
equipment (such space "Lessee's Building Space");
All of the property leased under this Paragraph 2.01 shall
hereinafter be called the "Leased Premises".
Ownership of Property; Access.
Except for "Lessee's Property" (as defined below), all
tenant improvements including all fixtures and trade
fixtures shall become the property of the Lessor, and
shall remain with the Leased Premises after the Lessee
vacates same.
4
The Lessee's antenna, transmission line, and other
equipment, including, without limitation, an electrical
power generator, together with any replacements thereof
and modifications and additions thereto, which are
permitted hereunder, shall be and remain lessee's
property, and are hereinafter referred to as "Lessee's
Property". Lessee will be solely responsible for the
maintenance of Lessee's Property, including all
expenses associated with such repair.
Lessee shall have reasonable right of access to the Leased
Premises at all times in emergency situations and
whenever reasonably necessary for equipment maintenance
and repair. Lessee shall also have reasonable rights of
access at any time to the Leased Premises for ingress,
egress, utilities, the locating and usage of cabling
and related equipment, operations, maintenance, repair
or remodeling, or other engineering purposes.
Permitted Uses.
--------------
By Lessee.
Subject to all appropriate government approvals, including
the Federal Communications Commission ("FCC"), the
Leased Premises may be used only for radio activities
related to the operation of radio broadcast stations.
Such operations, shall be conducted in accordance with
the standards imposed by the FCC and any other
governmental body with authority over such transmission
and operations.
Except as expressly permitted by this Lease and unless prior
written approval of Lessor has been given, Lessee shall
not construct or make any improvements or install any
equipment on the Tower. Lessee may repair and maintain
equipment as it reasonably deems necessary to its
operations within Lessee's space in all respects in
compliance with the terms hereof. Lessee's space on the
Tower, Lessee's Building Space, Lessee's interior and
exterior equipment, and all other improvements shall be
maintained in an orderly and professional manner.
5
By Lessor.
Subject to the rights elsewhere granted to Lessee in this
Lease and with prior notice to Lessee and no loss of
service or interruption (beyond a temporary, non-
recurring and de minimis amount), Lessor reserves the
right to use the Tower, at its own expense, as it sees
fit and to fasten additional equipment to the Tower for
any purpose, including the right to install
transmitting and/or receiving antennas of others;
provided that Lessor shall use reasonable efforts to
restrict any loss of Lessee's service or interruption
pursuant to this Section 3.02(a) to the hours of 1:00
a.m. to 5:00 a.m.
Subject to the rights elsewhere granted to Lessee in this
Lease, Lessor shall have the right to use for itself or
lease to others the remainder of the Tower Site or use
of any of the improvements thereon, space on the Tower
or in any building constructed by Lessor for any
purpose, including, but not limited to, any kind of
broadcasting or communication, simultaneous
transmissions on AM, FM, SSB, VBIF, UHF, and/or
microwave frequencies, and all rental revenues received
therefrom shall belong exclusively to Lessor. Prior to
permitting the fastening of a material amount of
additional equipment, Lessor shall cause a structural
analysis of the Tower to be conducted by a reputable
mechanical consultant chosen by Lessor in order to
ensure that any such additions conform to recognized
engineering standards.
Except as expressly provided for herein, Lessor shall have
no liability for any action or omission taken in
exercise of its rights hereunder upon reasonable
reliance on recommendation of its engineering
personnel.
Subject to the terms of this Lease, Lessor also reserves the
right to erect one (1) or more additional towers on the
Tower Site.
Term.
----
Term. This Lease shall have a term of twenty (20) years from the
Commencement Date established in Paragraph 1.01 hereof.
6
Rent.
----
Rental. Lessee shall pay rent for each consecutive twelve-month
period beginning on the Commencement Date (each a "Lease Year") during the term
of this Lease. Such rental payment shall be payable in equal and successive
monthly installments in advance beginning with the Commencement Date and
continuing thereafter on the first day of each month during the term of this
Lease, such rental payments to be made according to the following schedule:
7
------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
------------------------------------------------------
1 $13,822.32 $1,151.86
------------------------------------------------------
2 $13,822.32 $1,151.86
------------------------------------------------------
3 $13,822.32 $1,151.86
------------------------------------------------------
4 $13,822.32 $1,151.86
------------------------------------------------------
5 $13,822.32 $1,151.86
------------------------------------------------------
6 $13,822.32 $1,151.86
------------------------------------------------------
7 $13,822.32 $1,151.86
------------------------------------------------------
8 $13,822.32 $1,151.86
------------------------------------------------------
9 $13,822.32 $1,151.86
------------------------------------------------------
10 $13,822.32 $1,151.86
------------------------------------------------------
11 $13,822.32 $1,151.86
------------------------------------------------------
12 $13,822.32 $1,151.86
------------------------------------------------------
13 $13,822.32 $1,151.86
------------------------------------------------------
14 $13,822.32 $1,151.86
------------------------------------------------------
15 $13,822.32 $1,151.86
------------------------------------------------------
16 $13,822.32 $1,151.86
------------------------------------------------------
17 $13,822.32 $1,151.86
------------------------------------------------------
18 $13,822.32 $1,151.86
------------------------------------------------------
19 $13,822.32 $1,151.86
------------------------------------------------------
20 $13,822.32 $1,151.86
------------------------------------------------------
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 the
Lessee by crediting the payment owed to Lessee by Lessor under that certain
Promissory Note made by Lessor in favor of Lessee dated ________, 2000, on the
first day of each month during the term of the Lease. In the event of prepayment
of the Promissory Note by Lessor or other action resulting in amounts equal to
any monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Towers, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Ms. B. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may
in writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
Electricity and Other Utilities. In addition to the payments
prescribed under Section 5.01 of this Lease, Lessee shall pay for its own
telephone lines and service, electrical service (including electrical service to
the Tower used by Lessee as measured by a separate electrical meter at Lessee's
expense). Lessor shall pay for the electrical service to the Tower for the Tower
lighting.
Authority.
---------
Quiet Enjoyment. Lessor represents and warrants that it has the
full power and authority to enter into this Lease, and covenants and agrees that
Lessee, upon paying the rents described herein and observing and keeping the
covenants, agreements, and stipulations of
8
this Lease on Lessee's part to be observed and kept, shall lawfully, peaceably,
and quietly hold, occupy, and enjoy the Leased Premises, and all other rights
and privileges granted herein, without hindrance, eviction, or molestation by
Lessor or any party claiming by or through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the
full power and authority to enter into and perform this Lease. Any and all
necessary corporate resolutions, encumbrance certificates, etc., shall be
supplied by Lessee upon the request of Lessor.
Permits.
-------
Permits. Lessor shall obtain all necessary licenses or permits in
connection with the Tower and the Transmitter Building except that Lessee shall
obtain, at its own expense, any and all necessary licenses or permits from such
governmental authorities as shall have jurisdiction in connection with the (b)
the operations, installation, repair, alteration, or replacement of Lessee's
equipment (including, without limitation, Lessee's antenna and transmission
and/or receiving equipment and generator); or (c) with any of Lessee's
activities thereon or contemplated by this Lease. At Lessor's request, Lessee
shall furnish Lessor with copies of same, and shall abide by the terms and
provisions of such licenses and permits.
Maintenance of Leased Premises and Lessee's Property.
----------------------------------------------------
During Term of Lease.
Lessee, at its own cost and expense, shall maintain and
repair Lessee's Property, including specifically its
antenna, related equipment, transmission lines,
transmitters, and other equipment. Lessor shall perform
the same tasks with respect to the Tower and
Transmitter Building. All such maintenance shall be
conducted by the parties in accordance with good
engineering standards and in conformity with the
requirements of the FCC or any other body having
jurisdiction over the Lessee and its property,
including, without limitation, any rules, regulations,
or guidelines of the FCC implementing the National
Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of
Lessor and Lessee shall take all reasonable precautions
to avoid interference or hindrance to and with the
operations of the other party hereto. In this regard,
each party hereto agrees to eliminate, without cost to
the other party hereto, any interference or hindrance
to such other party's operation. Maintenance and repair
of Lessee's Property shall be performed only by a
reputable contractor and in accordance with the
provisions of subsections (d), (e), and (f) hereof.
9
Lessor retains the right to inspect Lessee's Property during
normal business hours upon reasonable notice to Lessee,
except that, in the event of an emergency, as
determined by Lessor, Lessor may enter at any time,
giving notice of such emergency to Lessee as soon as is
practical. In the event that Lessor reasonably
determines that Lessee has not maintained Lessee's
Property and equipment in good order and repair
according to industry standards, and that such repairs
are necessary for the safety of the Tower, the
Transmitter Building, and the Tower Site, or the
prevention of interference with Lessor or any other
user of the Tower or any other broadcaster, Lessor may,
at its option, make such emergency repairs to the
Leased Premises as it deems reasonably necessary, and
any amount expended by Lessor therefor shall be
reimbursed to it by Lessee immediately upon
presentation of a statement and shall be deemed
additional rent. Lessor shall not be liable for
inconvenience, disturbance, loss of business, or other
damage to Lessee by reason of repairing any of Lessee's
Property which Lessee has failed to properly maintain.
With respect to the non-emergency repairs which Lessor, in
its reasonable discretion, determines that Lessee
should make to maintain Lessee's Property and equipment
in good order, and that such repairs are necessary for
the safety of the Tower, the Transmitter Building, and
the Tower Site, or the prevention of interference with
Lessor, in violation of the terms of this Agreement,
Lessor shall so notify Lessee in writing, specifying
the maintenance and repairs required to be performed by
Lessee. In the event that, within ten (10) business
days following such written notice (or such longer
period as may be reasonably necessary taking into
account all facts and circumstances), Lessee shall not
have performed such maintenance and repairs, Lessor
may, at its sole option, make such repairs as it deems
reasonably necessary, and any amount expended by Lessor
therefor shall be deemed additional rent. Lessor shall
not be liable for inconvenience, disturbance, loss of
business, or other damage to Lessee by reason of
repairing the property and equipment of Lessee which
Lessee has failed to properly maintain.
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,
10
maintenance, repair, or removal of any of Lessee's
transmission lines, antenna, and other equipment on the
Tower unless the Lessee submits to Lessor a copy of the
proposed contract and also detailed plans and
specifications of the work to be done, and both the
contract and the plans and specifications have been
approved in writing by Lessor not to be unreasonably
withheld, delayed or conditioned. Lessee, upon demand
therefor by Lessor, agrees to pay Lessor as additional
rent all amounts reasonably expended by Lessor in
connection with review of any such contract, plans, and
specifications.
With respect to any work to be performed by or on behalf of
Lessee in connection with the installation, alteration,
maintenance, repair, or removal of any equipment on the
Tower (including any ascension of the Tower), in the
Transmitter Building, or in or about the Tower Site,
Lessee may only employ a contractor who has been
approved in writing and in advance by Lessor. Lessor
agrees that it will not unreasonably withhold its
approval of any contractor who has the requisite
experience and industry standard insurance coverage and
who will, at the sole option of Lessor, provide a bond
to cover any work which it has been retained to
perform. Lessor agrees to consult on call in any
emergency situation and immediately give its approval
or disapproval.
All work by or on behalf of the Lessee or Lessor shall be
carried out (i) in a good and workmanlike manner; (ii)
in accordance with established engineering standards
and public ordinances, rules, and regulations
applicable to such work, including, without limitation,
any rules, regulations, or guidelines of the FCC
implementing the National Environmental Policy Act of
1969, pertaining to electromagnetic or radio frequency
radiation; (iii) in accordance with plans and
specifications, including mechanical and electrical
drawings, which have been submitted to and approved in
writing and in advance by Lessor; and (iv) in
accordance with Lessor's security procedures with
respect to protection of the Tower Site.
Notwithstanding the receipt of the approvals by Lessor as
required in this paragraph, Lessee shall not be
relieved of its responsibilities and liabilities for
interference or otherwise as herein provided, nor shall
said approval be deemed a waiver of any other rights of
Lessor under this Lease.
11
In the event that any notice of lien or lien shall be filed
against any part of the Tower Site for work claimed to
have been done or materials claimed to have been
furnished to Lessee, the same shall be dismissed,
withdrawn, discharged or bonded (to Lessor's reasonable
satisfaction) by Lessee within thirty (30) days
thereafter at Lessee's expense; and if Lessee shall
fail to take such action as shall cause such lien to be
discharged within thirty (30) days, Lessor may, at its
option, discharge the same by deposit or by bonding
proceedings. Lessor may require the lienor to prosecute
the appropriate action to enforce the lienor's claim.
In such case, Lessor shall give immediate notice to
Lessee of such pending action or proceeding so that
Lessee may have an opportunity to legally contest or
defend the action or proceeding. If, after such notice
to Lessee, a judgment is recovered on the claim,
Lessor, at its sole option, may pay the judgment. Any
reasonable amount paid or expense incurred or sum of
money paid by Lessor (including reasonable attorney's
fees) by reason of the failure of Lessee to comply with
the foregoing provisions of this paragraph, or in
defending any such action, shall be paid to Lessor by
Lessee, and shall be treated as additional rent
hereunder.
At Expiration or Termination. At the expiration or termination of
this Lease, Lessee shall promptly surrender possession of the Leased Premises to
Lessor in as good a condition as the same were received at the commencement of
the term, reasonable wear and tear and damage by fire or other casualty beyond
Lessee's reasonable control excepted.
Use and Maintenance of Common Premises.
--------------------------------------
Use of Common Premises. Lessee, at its own risk, shall have the
right to use in common with Lessor and its licensees, invitees, and other
tenants, and in connection with Lessee's permissible activities and operations
(a) any access road from any public highway to the Tower Site or to any building
on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common
areas in the Transmitter Building (such items (a), (b) and (c) called
collectively herein the "Common Premises").
Maintenance of Common Premises.
Lessor shall maintain the Common Premises and any fence
around the Tower in good repair. Lessee shall comply
with any security policies reasonably established from
time to time by Lessor.
Lessor assumes the obligation and responsibility for
complying with the requirements of the FCC regarding
obstruction,
12
marking and lighting of the Tower. Lessor shall
maintain the Tower and support systems in good repair
and in good operating condition in accordance with the
requirements of governmental authorities.
In the event that Lessor determines that repairs,
alterations, or improvements are necessary or desirable
to the Tower or any building or structure constructed
by Lessor on the Tower Site, any common areas, or the
leased spaces of other tenants, Lessor may, upon
reasonable notice and for the shortest practical period
of time (except for emergency situations), close
entrance doors, common areas, drive-ways, rights-of-
way, service areas, parking areas, or any other
facilities at its discretion without being liable to
Lessee; provided that if any of the above would
restrict Lessee's ability to broadcast, Lessor shall
use reasonable efforts to restrict any closure or
interruption pursuant to this Section 9.02 to the hours
of 1:00 a.m. to 5:00 a.m.. The closing of entrances,
doors, common areas, parking areas, or other facilities
for the making of the repairs, alterations, or
improvements described herein shall, under no
circumstances, constitute an eviction of the Lessee or
be grounds for termination of this Lease or the
withholding of any rental payments or other payments or
performances required to be paid or made by Lessee
under the terms hereof, provided, Lessor shall use
reasonable efforts to ensure that any action taken in
accordance with this paragraph shall not adversely
affect the rights of Lessee hereunder. Under no such
circumstances shall Lessee be entitled to terminate
this Lease nor shall it be entitled to compensation for
any loss or damage it may sustain (including loss of
use, loss of advertising/sponsorship revenues, and
consequential damages) by reason of such changes or
alterations.
Alterations by Lessee.
---------------------
Alterations.
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
13
necessary, have been approved by the FCC and any other
authority having jurisdiction over Lessee; and provided
further, that plans and specifications are first
submitted to and approved in writing by Lessor. Lessee
shall make no changes in the equipment or equipment
position without such approval, and Lessor shall not
unreasonably fail to give such approval within ten (10)
business days.
This Lease is based upon carefully computed tower loading
capacity. If any change proposed by Lessee in the type,
location, or positioning of Lessee's Property should,
in Lessor's judgment, require a computer or other type
of feasibility study to determine the loading capacity
of the Tower, such study shall be performed by an
engineer chosen by Lessor, and approved by Lessee (such
approval not to be unreasonably withheld, delayed or
conditioned) whose decision shall be final and binding
upon both parties. The cost of such study or any other
costs reasonably incurred by Lessor in determining the
feasibility of any proposed change or alteration in the
type, location, or positioning of Lessee's Property
shall be borne entirely by Lessee.
Interference.
------------
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises
or on the Tower after the date hereof, notification of the particulars of such
proposed installation shall be submitted to Lessor hereto and any other lessees
or users of 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.
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
14
notification of such interference, the Lessee, at its sole expense, will take
such steps as may be reasonably required to correct such interference,
including, but not limited to, changing frequency, ceasing transmission,
reducing power, and/or the installation of any filters or other equipment,
provided that, if such interference is caused, after the date hereof, by the
failure of the Lessor or any other lessee suffering the interference to comply
with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor
shall, or shall cause the other lessee suffering the interference, at its sole
expense, to comply with such Maintenance Standards. Any dispute as to the cause
of interference, or the steps reasonably required to correct it, arising under
this Paragraph 11.02, shall be submitted to an independent professional engineer
chosen by Lessor, and such engineer's decision shall be final and binding upon
the parties. If such interference is found to be caused by such changed
facilities or operation, the fees and charges of the engineer to whom the
dispute is referred shall be borne by the party whose changed facilities or mode
of operations gave rise to the claimed interference. If such interference is
found not to be caused by such changed facilities or operations, the fees and
charges of the engineer to whom the dispute is referred shall be borne by the
objecting party. All other leases and/or agreements to lease space at the Tower
Site shall contain this language.
Interference by Other User. Any subsequent agreement under which
Lessor allows any other person to occupy any portion of the Tower, Tower Site or
any building on the Tower Site shall provide that, should the installation,
operation, or maintenance of the equipment or the activities of such other
person cause any objectionable interference with the operations of Lessor or
Lessee, then, promptly after written notification of such, such other tenant or
user, at its sole expense, will take such steps as may be reasonably necessary
to correct such interference, including, but not limited to, changing frequency,
ceasing transmission, reducing power, and/or the installation of any filter or
other equipment, provided that if such interference is caused by the failure of
any other lessee to comply with the Maintenance Standards, as defined in
Paragraph 11.04, such other lessee will, at its sole expense, comply with such
Maintenance Standards. To the best of its ability, Lessor shall not permit any
operations by other tenants, the effect of which would be to prohibit Lessee
from operating in the manner contemplated herein, without the prior written
consent of Lessee. Lessor shall have no liability for any action or omission
taken upon reasonable reliance on the recommendation of qualified engineering
personnel. Lessor agrees that it will take commercially reasonable efforts to
ensure that the installation, operation or maintenance of its equipment which is
installed after the commencement date of this Lease on, in or around the Tower,
Tower Site or any buildings on the Tower Site shall not cause any objectionable
interference with the operations of Lessee. Immediately upon notification of
such interference by Lessee, Lessor shall at its sole expense take such steps as
may be reasonably necessary to correct such interference, including, but not
limited to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filter or other equipment.
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.
15
Utilities.
---------
Utilities. Subject to the required approvals and cooperation of
any governmental authority or public utilities, Lessee shall arrange and be
responsible for the installation and provision of electrical and telephone lines
serving Lessee's Property at any building on the Tower Site owned by Lessor.
Lessee shall be responsible for procurement of and payment for all telephone
services as described in Paragraph 5.03 and used by Lessee.
Taxes.
-----
Payment of Taxes. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall pay all personal property or other taxes assessed or
imposed on Lessee's Property, and shall cooperate with Lessor to ensure that
such property is properly separated from that of Lessor or other tenants for
assessment purposes.
Insurance.
---------
Public Liability. Lessee shall procure and maintain comprehensive
public liability insurance, naming Lessor as an additional insured as its
interests shall appear, covering all of the Lessee's operations and activities
on the Leased Premises, including but not limited to, the operations of
contractors and subcontractors and the operation of vehicles and equipment
(including 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].
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.
Tower and Transmitter Building Insurance. Lessee shall procure
and maintain physical damage insurance on the Tower and any building on the
Tower Site used or leased by Lessee pursuant to this Lease in an amount
sufficient to repair or replace the Tower and any such building with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse,
explosion, aircraft and vehicle damage, vandalism, and malicious mischief.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per
16
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.
Tower and/or Transmitter Building Damage. In the event that the
Tower and/or the Transmitter Building are destroyed or damaged by fire,
lightning, windstorm, flood, earthquake, explosion, collapse, aircraft, or other
vehicle damage or other casualty covered by insurance, Lessor shall promptly
reconstruct or repair the Tower and/or the Transmitter Building affected to such
good condition as existed before the destruction or damage, and give possession
to Lessee of substantially the same space leased hereunder. Lessee shall
promptly pay over to Lessor any insurance proceeds it receives from insurance
policies Lessee is required to procure under Section 14.03 hereof for the
purpose of use by Lessor to fund reconstruction of the Tower and/or Transmitter
Building as required of Lessor under this Section 14.01. If the Tower and/or the
Transmitter Building are in need of such repair or is so damaged by fire,
lightning, windstorm, flood, earthquake, explosion, aircraft or other vehicle
damage, collapse, or other casualty that reconstruction or repair cannot
reasonably be undertaken without dismantling Lessee's antenna, then upon written
notice to Lessee, Lessor may remove any such antenna and interrupt the signal
activity of Lessee, but will use its best efforts to have the antenna replaced
as soon as reasonably possible. Lessor agrees to provide Lessee alternative
space, if available, on the Tower and/or in the Transmitter Building during such
reconstruction/repair period. If such space is not available, then Lessee shall
be responsible for procuring its own alternative space. No monetary or other
rental shall be due pursuant to the terms of this Lease for such time as Lessee
is unable to conduct its broadcasting activities on the Tower without
significant diminution of signal quality as a result of such total or partial
destruction or damage or need of repair, and Lessor shall refund to Lessee any
rent paid in advance for such time. Should Lessor not either (a) inform Lessee
in writing within ninety (90) days of the date of destruction of Lessor's intent
to replace the Tower and/or the Transmitter Building or (b) replace the Tower
and/or the Transmitter Building within one (1) year if Lessor has provided the
notice described in clause (a) above, of the date of destruction, or repair the
same within such shorter time period after the casualty as may be reasonable,
then Lessee, upon thirty (30) days' written notice to Lessor, may terminate this
Lease, provided if Lessor has provided the notice described in clause (a) above,
Lessee must make such election within one hundred twenty (120) days prior to the
expiration of said repair or replacement period. Lessee agrees that it shall
maintain adequate business interruption insurance at all times during the term
of this Lease to adequately protect it from any interruption of signal
activities due to damage to the Tower and/or Transmitter Building (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.
Eminent Domain.
--------------
In the event that all of the Tower Site (or any portion of
the Tower Site necessary for the Tower, 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
17
be terminated as of the date of acquisition or
transfer. Lessor shall be entitled to the entire
condemnation award. If Lessor determines to build a new
tower or a new transmitter building as a replacement
for the Tower and/or Transmitter Building on the
condemned property, Lessor agrees to lease space to
Lessee on the new tower and space in the new building
reasonably comparable to the space leased to Lessee
pursuant to this Lease and on terms reasonably
equivalent to the terms of this Lease.
In the event that this Lease is terminated due to eminent
domain proceedings, then Lessee shall be relieved of
any further obligations to make any rental payments or
performances for any period after the date of such
termination of this Lease; and subject to offset or
withholding by Lessor to cover any unpaid additional
rent or other authorized charges which may be owed
through the date of termination, Lessee shall be
entitled to a refund of any advance rental sums which
it has paid in proportion to the period of the Lease
through such date of termination.
Successors and Assignment.
-------------------------
Successors. All rights and liabilities herein given to or imposed
upon the respective parties hereto shall, to the extent that such are
assignable, extend to and bind the several and respective successors and assigns
of the parties hereto.
Assignment. Lessee shall not assign, sublet, or transfer this
Lease or any interest therein, or permit or allow through any act or default of
itself, or of any other person, any transfer thereof by operations of law or
otherwise without the prior written consent of Lessor except:
Lessee may assign this Lease to any bona fide third party
purchaser of substantially all the assets comprising of
Lessee's radio station broadcasting from the Tower
Site, who shall execute an assignment and assumption
agreement in form reasonably acceptable to Lessor; and
Lessee may assign or transfer all or a portion of the assets
of Lessee, including this Lease, to any corporation
controlling, controlled by, or under common control
with, Lessee.
Any assignment or subletting by Lessee except as permitted
herein shall be void and of no effect. Any permitted assignment shall not
relieve Lessee of any of its liabilities hereunder. A change in control of
Lessee, but not the mortgaging by Lessee of its rights hereunder, shall
constitute an assignment of this Lease. Lessor agrees to enter into
18
documentation reasonably requested by any lender to Lessee in connection with
Lessee's mortgaging of its rights hereunder.
Lessor may assign or transfer this Lease without the consent
of Lessee, but shall notify Lessee following any transfer or assignment.
Right to Remove Lessee's Property in Event of Termination. In the
---------------------------------------------------------
event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not be
deemed fixtures) on the Leased Premises within thirty (30) days of such
termination. Such removal shall be conducted in accordance with Paragraph 8.01
hereof Lessee shall promptly repair any and all damage caused by such removal.
Any of Lessee's Property remaining on the Leased Premises after the expiration
of the thirty (30) day period shall be deemed to be the property of Lessor,
which Lessor may have removed at Lessee's expense.
Lessor's Protection.
-------------------
Default by Lessee.
If Lessee shall make default in making any payment herein
provided for and any such default shall continue for a
period of ten (10) business days after written notice
to Lessee, or if Lessee shall make default in the
performance of any obligation of Lessee herein (other
than as to payment of money) and any such default shall
continue for a period of thirty (30) days after written
notice to Lessee, or if Lessee shall file a voluntary
petition in bankruptcy, or if Lessee shall file any
petition or institute any proceedings under any
Insolvency or Bankruptcy Act or any amendment thereto
hereafter made, seeking to effect its reorganization or
a composition with its creditors, or if, in any
proceedings based on the insolvency of Lessee or
relating to bankruptcy proceedings, a receiver or
trustee shall be appointed for Lessee or the Leased
Premises, or if any proceedings shall be commenced for
the reorganization of Lessee (which, in the case of
involuntary proceedings, are not dismissed or stayed
within 30 days of the commencement thereof), or if the
leasehold estate created hereby shall be taken on
execution or by any process of law, or if Lessee shall
admit in writing its inability to pay its obligations
generally as they become due, then Lessor may, at its
option, terminate this Lease without notice, and
declare all amounts due or to become due hereunder
immediately due and payable, and Lessor's agents and
servants may immediately, or any time
19
thereafter, reenter the Leased Premises by reasonably
necessary force, summary proceedings, or otherwise, and
remove all persons and properly therein, without being
liable to indictment, prosecution, or damage therefor,
and Lessee hereby expressly waives the service of any
notice in writing of intention to reenter said Leased
Premises. Lessor may, in addition to any other remedy
provided by law or permitted herein, at its option,
relet the Leased Premises (or any part thereof) on
behalf of Lessee, applying any monies collected first
to the payment of expenses of resuming or obtaining
possession, and, second, to the payment of the costs of
placing the premises in rentable condition, including
any leasing commission, and, third, to the payment of
rent due hereunder, and any other damages due to the
Lessor. Any surplus remaining thereafter shall be paid
to Lessee, and Lessee shall remain liable for any
deficiency in rental, the amount of which deficiency
shall be paid upon demand therefor to Lessor.
Should Lessor re-enter and terminate according to the
provisions of this subparagraph, Lessor may remove and
store the Lessee's Property at the expense and for the
account of Lessee. Alternatively, Lessor may sell, or
cause to be sold, Lessee's Property at public sale to
the highest bidder for cash, and remove from the
proceeds of such sale any rent or other payment then
due Lessor under this Lease. Any disposition of the
Lessee's Property pursuant thereto shall be subject to
the rights of any lender to Lessee holding a mortgage
on Lessee's Property and shall be made in a manner that
is commercially reasonable within the meaning of the
Uniform Commercial Code as in effect in the State of
South Carolina at the time of such disposition.
Indemnification.
---------------
Each party warrants and represents that it has the authority
to enter into this Lease and to grant the rights it
grants hereunder, and that performance of its
obligations pursuant to this Lease will not violate the
rights of any third party whatsoever. Lessee agrees to
indemnify and defend Lessor against any claim for
damages, losses, liabilities, costs, or expenses,
including reasonable attorney's fees, arising (a) out
of any breach by Lessee of its warranties,
representations, or covenants under this Lease; (b) out
of the use, management, or occupancy of the Leased
Premises by Lessee, its agents, or invitees; (c) out of
any omissions,
20
negligence or willful misconduct of Lessee, its
agents, servants, employees, licensees, or invitees;
(d) out of failure of Lessee to comply with any
laws, statutes, ordinances, or regulations; (e) out
of Lessee's failure to maintain equipment in proper
working order; and (f) out of Lessee's failure to
comply with any of its other obligations under the
terms of this Lease.
(b) Lessor agrees to indemnify and defend Lessee against
any claim for damages, losses, liabilities, costs, or expenses, including
reasonable attorney's fees, arising (a) out of any breach by Lessor of its
warranties, representations, or covenants under this Lease; (b) out of the use,
management, or occupancy of the Leased Premises by Lessor, its agents, or
invitees; (c) out of any omissions, negligence or willful misconduct of Lessor,
its agents, servants, employees, licensees, or invitees; (d) out of failure of
Lessor to comply with any laws, statutes, ordinances, or regulations; (e) out of
Lessor's failure to maintain equipment in proper working order; and (f) out of
Lessor's failure to comply with any of its other obligations under the terms of
this Lease.
Any party seeking indemnification hereunder ("Indemnified
Party") shall provide the other party ("Indemnifying
Party") reasonably prompt notice of known claims giving
rise to any claim for indemnity, and the Indemnifying
Party shall have the right and opportunity to undertake
the legal defense of such claims. The Indemnified Party
and its counsel may nevertheless participate in (but
not control) such proceedings, negotiations, or defense
at its own expense. In all such cases, the Indemnified
Party will give all reasonable assistance to the
Indemnifying Party, including making the Indemnified
Party's employees and documents available as reasonably
requested without charge.
Estoppel Certificate and Attornment.
-----------------------------------
Estoppel Certificate. Within ten (10) days after either party's
request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
21
Attornment. Lessee shall, in the event of a sale or assignment of
Lessor's interest in any of the Leased Premises, or, if any of the Leased
Premises or any building thereon comes into the hands of any Trustee under a
Deed of Trust or a mortgagee or any other person, whether because of a
foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or
otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person,
and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's
request any attornment agreement reasonably required by any mortgagee, Trustee,
or other such person to be executed containing such provisions as such
mortgagee, Trustee, or other person reasonably requires, provided, however, that
such attornment shall not modify the terms of this Lease.
Failure to Execute Instruments. Either party's failure, without
good and reasonable cause, to execute instruments or certificates provided for
in this Paragraph 20, within fifteen (15) days after the receipt by such party
of a written request, shall be a default under his Lease.
Miscellaneous.
-------------
Relationship of Parties. Nothing contained herein and no acts of
the parties herein shall be deemed or construed as creating any relationship
between the parties hereto other than the relationship of Lessor and Lessee or
Landlord and Tenant.
Governing Law. This Lease shall be governed and construed and
enforced in accordance with the laws of the State of South Carolina.
Captions. The captions contained in this Lease are included
solely for convenience and shall in no event affect or be used in connection
with the interpretation of this Lease.
Amendments. This Lease only may be amended or modified as may be
agreed upon by written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or payable
under this Lease, including all money expended pursuant to the provisions hereof
or on account of any default in the performance and observance of any agreements
or covenants herein, shall bear interest at the rate of eight and one-half
percent (8.5%) per annum (or at such lesser rate which is the maximum permitted
by applicable law) from thirty (30) days after the date such sums become due or
payable, or, in the event one of the parties expends money because of a default
by the other, from thirty (30) days after the date the defaulting party received
written notice that such money was expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not
had dealings with any real estate broker or other person who may claim a
commission or finder's fee with respect to this Lease in any manner. Each party
shall hold harmless the other party from all
22
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.
Notices. Notices given pursuant to this Lease shall be in writing
and shall be given by actual delivery or by mailing the same to the party
entitled thereto at the addresses set forth below or at any such other address
as any Party may designate in writing to any other Party pursuant to the
provisions of this paragraph. Notice given by mail shall be sent by United
States mail, certified or registered, return receipt requested or by nationally
recognized courier serviced providing receipt of delivery. Notices shall be
deemed to be received on the date of actual receipt, in the case of personal
delivery, or on the date of mailing, in the case of mailing. Notices shall be
served or mailed to the following addresses, subject to change as provided
above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx Broadcasting of Augusta, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
23
Waiver. It is agreed that the waiving of any of the covenants of
this Lease by either party shall be limited to the particular instance, and
shall not be deemed to waive any other breaches of such covenant or any
provision herein contained.
Accord and Satisfaction. No receipt of money by Lessor after the
termination of this Lease or after the service of any notice or after the
commencement of any suit reinstates, continues, or extends the term of this
Lease or affects any such notice or suit.
Limitation of Liability. Except as otherwise expressly stated
herein, Lessor shall not be liable or responsible to the Lessee or to anyone
claiming under or through the Lessee for any loss or damage caused by the acts
or omissions of any other tenants or any other users of the Tower, Transmitter
Building, or Tower Site, or for any loss or damage to Lessee's Property caused
by fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice,
or materials falling from the Tower, or the malfunction of any utility,
facility, or installation, or by reason of any other existing condition or
defect in the Leased Premises; nor shall Lessor be liable or responsible to the
Lessee for any injury or damage suffered by the Lessee and allegedly caused by
technical interference with the Lessee's operations, by the activities of any
other tenants or users of the Tower, Transmitter Building, and Tower Site, or
any other broadcasters. Except for Lessor's own negligent acts, willful
misconduct or for breaches of its obligations under this Agreement, Lessor shall
not be liable to Lessee, or to any other person for property damage or personal
injury, including death. Lessor shall not be liable under any circumstances for
loss of use, loss of sponsorship or advertising revenue, or any other
consequential damages sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or
phrase contained in this Lease shall not serve to render the balance of this
Lease ineffective or void; and the same shall be construed as if such had not
been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary
stamps occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such
rules and regulations in writing which it may consider necessary and desirable.
Lessee agrees to abide by such rules and regulations so long as they do not
unreasonably interfere with Lessee's use and occupancy of the Leased Premises or
conflict with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or
damages to Lessee's Property caused by acts of God, including, but not limited
to, wind, lightning, rain, ice, earthquake, floods, or rising water, or by
aircraft or vehicle damage. Lessor furthermore assumes no responsibility for
losses or damages to Lessee's Property caused by any person other than employees
and agents of Lessor. In the event that Lessor shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of acts
of God (including, but not limited to, wind, lightning, rain, ice, earthquake,
flood, or rising water), aircraft or vehicle damage or other casualty,
unforeseen soil conditions, acts of third parties who are not employees of
Lessor, strikes, lock-outs, labor troubles, inability to procure material,
failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other
24
reasons beyond its control, then the performance of such act shall be excused
for the period of delay and the period for performance of any such act shall be
extended for a period equivalent to the period of such delay.
Entire Agreement. This Lease, together with its Exhibits,
constitutes and sets forth the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous offers, negotiations, and agreements (whether oral or written)
between the parties (or any of their related entities) concerning the subject
matter of this Lease.
Counterparts and Duplicates. This Lease may be executed in
counterparts, which, when combined, shall constitute a single instrument. This
Lease may also be executed in duplicate editions, each of which shall be
effective as an original.
25
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
_________________________ By: ____________________________ (SEAL)
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX BROADCASTING OF AUGUSTA, INC.
_________________________ By: ____________________________ (SEAL)
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
26
EXHIBIT A
---------
DESCRIPTION OF TOWER
--------------------
WAJY-FM
That certain communications tower situated on that certain tract of land
described on Exhibit B herein.
27
EXHIBIT B
---------
DESCRIPTION OF TOWER SITE
WAJY-FM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
EXHIBIT C
---------
[TOWER SPACE DIAGRAM OR DESCRIPTION]
EXHIBIT D
---------
[TRANSMITTER BUILDING SPACE DIAGRAM OR DESCRIPTION]
