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EXHIBIT 10.14
AGREEMENT OF SALE (OT/LL)
This Agreement of Sale (the "Agreement") is made this ___ day of
February, 2000, between Xxxxxxx XX Acquisition Corp., a Delaware corporation
(the "Seller"), and Xxxxxxx Family Towers, Inc., a Delaware corporation (the
"Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns four (4) communications tower facilities used in
the operation of radio broadcast stations WIKS-FM, WRXK-FM and WZFX-FM (each a
"Tower" and collectively the "Towers"), each such Tower situated on a certain
tract of land which Seller leases from a third party (such tracts of land
called collectively herein the "Tower Sites", and individually, a "Tower Site",
each such Tower and its corresponding Tower Site described on Exhibit A
attached hereto);
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Towers and certain personal property belonging to Seller and associated with
the Tower Sites;
NOW, THEREFORE, in consideration of the mutual premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Agreement to Sell and Purchase.
Seller agrees to sell, transfer, assign, convey and deliver to Buyer
and Buyer agrees to purchase and accept from Seller, the following assets upon
the terms and conditions contained herein (collectively, the "Assets"):
(a) The Towers;
(b) The leases for use of space on certain of the Towers
located at the Tower Sites as more particularly discussed in Section 5(d) of
this Agreement; and
(c) The ground leases for each of the Tower Sites (the
"Ground Leases"), such Ground Leases attached as Exhibit B hereto and
incorporated herein.
2. Assumption of Liabilities.
(a) Upon the terms and subject to the conditions
contained herein, Buyer shall assume and become responsible for any and all
liabilities and obligations arising out of, or relating to events occurring
after 12:01 am Eastern Standard Time on the Closing Date (the "Adjustment
Time") under the Tower Leases (as such term is defined in Section 5(d) hereof),
the Ground Leases, and with respect to the ownership of the Towers, and the
operation of the business relating to the Assets (collectively, the "Assumed
Liabilities").
(b) Subject to the provisions of Section 13 hereof, it
is understood and agreed that all liabilities to third parties relating to the
Assets that arise out of any act, event, or
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transaction of Seller or the ownership of the Assets or the operation of the
business relating to the Assets prior to the Closing Date (the "Retained
Liabilities") shall remain the responsibility of Seller. Buyer shall not be
required to defend any suit or claim arising out of any Retained Liabilities,
and Seller shall and hereby agrees to satisfy in due course all such Retained
Liabilities, and subject to the provisions of Section 13 hereof Seller shall
protect and forever hold Buyer harmless from all claims with respect to such
Retained Liabilities. Subject to the provisions of Section 13 hereof, it is
understood and agreed that all liabilities relating to the Assets that arise
out of any act, event, or transaction of Buyer following the Closing Date (the
"Assumed Liabilities") shall be the responsibility of Buyer. Seller shall not
be required to defend any suit or claim arising out of any Assumed Liabilities,
and Buyer shall and hereby agrees to satisfy in due course all such Assumed
Liabilities, and subject to the provisions of Section 13 hereof Buyer shall
protect and forever hold Seller harmless from all claims with respect to such
Assumed Liabilities.
3. Purchase Price.
(a) The purchase price for the Assets shall be the
amount of Nine Hundred Thirty Thousand Four Hundred Forty Eight Dollars
($930,448.00) (the "Purchase Price"). The Purchase Price shall be adjusted at
the Closing by the amount of any prorations derived by operation of Section 6
hereof, and for any other normal income and expense items related to the
operation of the Tower Sites as of 12:01 am on the day on which the Closing
occurs. The Purchase Price shall be allocated among the Assets in accordance
with Section 3(b)).
(b) Buyer and Seller agree to allocate the aggregate of
the Purchase Price, the Assumed Liabilities and other relevant items among the
Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Buyer and Seller will each report the federal, state, and
local and other tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
4. Delivery of Purchase Price.
(a) The Purchase Price shall be payable at Closing (as
defined in Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall
deliver to Seller at Closing an unsecured promissory note of Buyer in the
aggregate principal amount of (Nine Hundred Thirty Thousand Four Hundred Forty
Eight Dollars) ($930,448.00), substantially in the form of Exhibit C (the
"Purchase Note").
5. Transfer of Assets.
(a) Transfer of ownership of the Towers and assumption
of the Assumed Liabilities (except for the Ground Leases, which shall be
transferred according to Section(b) below) pursuant to Section 2 hereof shall
be pursuant to the Assignment, Xxxx of Sale
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and Assumption Agreement from the Seller to Buyer in the form of Exhibit D
attached hereto and incorporated herein (the "Assignment, Xxxx of Sale and
Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and
clear of all liens, encumbrances other than Permitted Encumbrances, if any.
"Permitted Encumbrances" shall mean: (i) encumbrances for taxes, assessments,
or governmental charges or levies which are not yet due and payable, or that,
subject to adequate security for payment, are being contested; (ii) existing
building restrictions, ordinances, easements of roads, privileges, or rights of
public service companies or other rights of way, other restrictions or
conditions of record, if any or other encumbrances disclosed in this Agreement
(including the Exhibits attached hereto); (iii) easements, rights of way or
other encumbrances that do not have a material adverse effect on the Assets or
the operation of the business relating to the Assets as currently operated;
(iv) encumbrances imposed by law, such as materialmen's, mechanic's, carrier's,
workmen's, or repairmen's liens or other similar encumbrances attaching in the
ordinary course of business or securing obligations that are not overdue; (v)
encumbrances securing indebtedness, which will be removed prior to or at the
Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed
by Buyer pursuant to Section 2.
(c) Assumption of the Ground Leases pursuant to Section
2 hereof shall be pursuant to the Ground Lease Assignment and Assumption
Agreement in the form of Exhibit E attached hereto and incorporated herein (the
"Ground Lease Assignment and Assumption Agreement").
(d) Buyer and Seller acknowledge that certain of the
Towers are occupied, or will be occupied, by various tenants pursuant to tower
leases between third party lessees and the Seller, for space on certain of the
Towers, such tower leases all made effective prior to the effective date of
this Agreement (the "Tower Leases"). Buyer acknowledges receipt of copies of
the Tower Leases from Seller. At Closing, Seller will assign all of its right,
title, and interest in the Tower Leases to Buyer, and Buyer shall assume the
obligations under such Tower Leases, in the Assignment, Xxxx of Sale and
Assumption Agreement. In the event that the Buyer receives after Closing any
payment from tenants pursuant to Tower Leases for rent (or other amounts owed)
that accrued prior to Closing, Buyer shall remit any such payment promptly to
Seller. Conversely, in the event Seller receives after Closing any such
payments from tenants pursuant to the Tower Leases for rent (or other amounts
owed) that accrued after Closing, Seller shall remit such payments promptly to
Buyer.
6. Apportionment of Real Estate Taxes, Rent, Utilities.
(a) Current real estate taxes, rent, utilities and all
other normal income and expense items related to the Assets shall be
apportioned between the parties to reflect the principle that all expenses and
income arising from the operation of the Assets up through the Adjustment Time
shall be for the account of Seller, and all expenses and income arising from
the operation of the business relating to the Assets acquired by Buyer after
the Adjustment Time shall be for the account of Buyer.
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(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.
All costs and expenses incurred by the Parties in this transaction,
including, but not limited to attorneys' fees, shall be paid by the party
incurring them.
8. Closing; Closing Conditions.
(a) Closing of the transactions contemplated by this
Agreement (the "Closing") shall occur at a place and time mutually agreeable to
Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good
faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be
conditioned upon (i) all representations and warranties of Buyer being then
true and complete in all material respects as if made on and as of the Closing
Date, except to the extent that any such representation or warranty is made as
of a specified date, in which case such representation or warranty shall have
been true and correct as of such date, (ii) all consents of third parties
required for Buyer to consummate the transactions contemplated under this
Agreement shall have been obtained, (iii) no order, decree or judgment of any
court, agency or other governmental authority shall have been issued based on
or arising out of the conduct, action, inaction, qualifications or status of
Buyer or any of its affiliates, which would render it unlawful as of the
Closing Date to effect the transactions contemplated by this Agreement in
accordance with its terms, (iv) the delivery by Buyer of the Purchase Price in
the manner set forth in Section 4(b) above, and (v) the delivery by Buyer of
Buyer's Closing Documents (as defined in Section 9 hereof) on or before the
Closing Date.
(c) Buyer's obligation to close hereunder shall be
conditioned upon (i) all representations and warranties of Seller being then
true and complete in all material respects
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as if made on and as of the Closing Date, except to the extent that any such
representation or warranty is made as of a specific date, in which case such
representation or warranty shall have been true and correct as of such date,
(ii) all consents of third parties required for Seller to consummate the
transactions contemplated under this Agreement shall have been obtained, (iii)
no order, decree or judgment of any court, agency or other governmental
authority shall have been issued based on or arising out of the conduct,
action, inaction, qualifications or status of Seller or any of its affiliates,
which would render it unlawful as of the Closing Date to effect that
transactions contemplated by this Agreement in accordance with its terms, and
(iv) the delivery by Seller of Seller's Closing Documents as set forth in
Section 9 hereof.
9. Closing Deliveries.
(a) At Closing, Seller shall execute and/or deliver to
Buyer the following (collectively "Seller's Closing Documents"):
(i) The Assignment, Xxxx of Sale and Assumption
Agreement;
(ii) The Ground Lease Assignment and Assumption
Agreement;
(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) Three (3) lease agreements, each lease
agreement by and between Buyer, as lessor,
and Seller, as lessee, and each lease
agreement substantially in the form of
Exhibit F (the "Lease Agreements").
(b) At Closing, Buyer shall execute and/or deliver to
Seller the following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving
this Agreement and the transactions
contemplated herein;
(ii) A certificate from an officer of Buyer
reasonably acceptable to Seller confirming
the accuracy of the representations and
warranties in Section 11 as of the Closing
Date;
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(iii) The Purchase Note executed by a duly
authorized officer of Buyer;
(iv) Three (3) lease agreements, each lease
agreement by and between Buyer, as lessor,
and Seller, as lessee, each lease agreement
substantially in the form of Exhibit F (the
"Lease Agreements"); and
(v) The Assignment, Xxxx of Sale and Assumption
Agreement.
(c) Seller's Closing Documents and Buyer's Closing
Documents shall be collectively called herein the "Closing Documents". Buyer
and Seller agree that such other documents as may be legally necessary or
appropriate to carry out the terms of this Agreement or as reasonably requested
by the other party shall be executed and delivered by the appropriate party at
Closing.
10. Representations and Warranties of Seller.
As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Towers,
and the Assets are free and clear of liens, encumbrances, restrictions and
security interests other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and
deliver this Agreement and Seller's Closing Documents, and to perform its
obligations hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when
executed and delivered, will constitute valid and binding agreements of Seller,
enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict
with, or result in, a breach of the terms of any agreements or instruments to
which the Seller is a party which would result in the creation or imposition of
any lien, charge or encumbrance on, or give to others any interest in or right
to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing,
all outstanding obligations for utilities and taxes through the Closing Date,
except for such items as are covered by the proration of items of income and
expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or
filing with, any person, entity, or authority will be required in connection
with the execution and delivery of this Agreement or the transactions
contemplated by this Agreement.
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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.
(d) Buyer acknowledges that the Towers are located on
land which is leased and subject to corresponding Ground Leases. Buyer
acknowledges that it has received copies of such Ground Leases and that there
are no assurances that such Ground Leases will be extended or, if extended,
whether the terms and conditions of any such extension will be the same as the
terms and conditions of the current Ground Leases.
12. Representations and Warranties Survive Closing.
All of the provisions of this Agreement and of the Closing Documents
and all of the representations, warranties, considerations, and agreements
contained herein and in the Closing Documents shall survive Closing and
continue in full force and effect for a period of twelve (12) months from the
Closing Date; provided that if a claim for indemnification is made
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by either party under Section 13 hereof within such twelve (12) month period,
the provisions of Section 13 shall survive until the resolution of such claim.
No claim may be brought under this Agreement unless written notice describing
in reasonable detail the nature of the claim is given on or prior to the last
day of the twelve (12) month period following the Closing Date.
13. Indemnification.
(a) Seller shall indemnify, defend, and hold Buyer, its
affiliates, partners, employees, officers, directors, agents, and
representatives harmless from and against any and all reasonable losses, costs,
expenses, liabilities, penalties, claims, and other damages including, but not
limited to, reasonable attorney's fees and other costs and expenses, including
reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or
warranties, or the breach of any other
provision contained in this Agreement;
(ii) nonfulfillment by Seller of any of its
covenants or agreements contained herein or
in any Seller's Closing Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages
resulting from Sellers' operations or
ownership of any Tower 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 subsequent to the
Closing Date, including any and all
liabilities arising
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under the Assets which related to events
occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the
"Indemnified Party") becomes aware of circumstances which would entitle such
party to indemnification by the other party hereunder (the "Indemnifying
Party"), the Indemnified Party shall give the Indemnifying Party prompt written
notice, with reasonable detail, of such claim. Upon receipt of such notice by
the Indemnified Party to the Indemnifying Party, the Indemnifying Party shall
have the option of defending against such pending litigation through engagement
of legal counsel of its choice, provided, however, that the Indemnifying
Party's choice of legal counsel must be acceptable to the Indemnified Party in
its reasonable discretion. In the event the Indemnifying Party elects to
defend, the Indemnifying Party shall keep the Indemnified Party fully informed
on a timely basis of the status of the pending litigation. In the event that
the Indemnifying Party elects to defend and is unsuccessful in such defense, it
shall promptly pay to the Indemnified Party any and all losses, costs,
expenses, liabilities, penalties, claims and other damages as described above,
including but not limited to, reasonable attorney's fees and other costs and
expenses associated with the pending litigation being so defended. In the event
the Indemnifying Party elects not to defend and the Indemnified Party defends,
but is unsuccessful, then the Indemnifying Party shall promptly pay to the
Indemnified Party any and all losses, costs, expenses, liabilities, penalties,
claims and other damages, as described above, including, but not limited to,
reasonable attorney's fees and other costs and expenses incurred, including
reasonable costs of investigation. In the event that Indemnifying Party elects
not to defend and the Indemnified Party defends successfully, then the
Indemnifying Party shall promptly pay to the Indemnified Party any and all
costs and expenses incurred, including, but not limited to, reasonable
attorney's fees and other costs and expenses incurred, including reasonable
costs of investigation. Finally, the Indemnifying Party shall reimburse the
Indemnified Party upon demand for any payment made by the Indemnified Party at
any time after Closing, based on the final judgement of any court of competent
jurisdiction or pursuant to a bona fide compromise or settlement of claims,
demands or actions in respect to any damages to which the foregoing
indemnification relates.
(d) Notwithstanding anything in this Agreement to the
contrary, Seller's obligation to indemnify Buyer shall be subject to all of the
following limitations:
(i) The amount of any losses, costs, expenses,
liabilities, penalties, claims, and other
damages ("Losses") incurred by Buyer shall
be reduced by (A) the amount Buyer recovers
(after deducting all attorneys' fees,
expenses, and other out-of-pocket costs of
recovery) from any insurer or other party
liable for such Losses, and Buyer shall use
commercially reasonable efforts to effect
any such recovery and (B) any tax benefit
realized by Buyer or its owners as a result
of any such Loss.
(ii) Buyer shall be entitled to indemnification
only for Losses as to which Buyer has given
Seller written notice describing in
reasonable detail the nature and basis for
such
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indemnification ("Notice of Claim") on or
prior to the first anniversary of the
Closing Date.
(iii) Seller shall not be required to make any
indemnification under clause (i) of Section
13(a) until the aggregate amount of Losses
resulting from or arising out of the matters
referred to in Section 13(a)(i) exceeds Five
Thousand Dollars ($5,000.00); provided that
if the aggregate amount of such Losses
exceeds such amount, Seller shall be
required to indemnify Buyer for all Losses
indemnifiable under Section 13(a)(i) without
regard to such Five Thousand Dollar
($5,000.00) limitation.
(iv) Any amounts owed to Buyer by Seller pursuant
to this Section 13 shall be limited to One
Hundred Thousand Dollars ($100,000.00) and
Seller shall have no other liability or
responsibility for indemnification
hereunder.
(e) Subsequent to the Closing, indemnification under
this Section 13 shall be the exclusive remedy of Buyer with respect to any
legal, equitable or other claim for relief based upon this Agreement or arising
hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, Buyer's obligation to indemnify Seller shall be subject to all of the
following limitations:
(i) The amount of any Losses incurred by
Seller shall be reduced by (A) the amount
Seller recovers (after deducting all
attorneys' fees, expenses and other
out-of-pocket costs of recovery) from any
insurer or other party liable for such
Losses, and Seller shall use commercially
reasonable efforts to effect any such
recovery and (B) any tax benefit realized by
Buyer or its owners as a result of any such
Loss.
(ii) Seller shall be entitled to indemnification
only for Losses as to which Seller has given
Buyer a Notice of Claim on or prior to the
first anniversary of the Closing Date.
(iii) Buyer shall not be required to make any
indemnification under clause (i) of Section
13(b) until the aggregate amount of Losses
resulting from or arising out of the matters
referred to in Section 13(b)(i) exceeds Five
Thousand Dollars ($5,000.00); provided that
if the aggregate amount of such Losses
exceeds such amount, Buyer shall be required
to indemnify Seller for all Losses
indemnifiable under Section 13(b)(i) without
regard to such Five Thousand Dollar
($5,000.00) limitation.
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(iv) Any amounts owed to Seller by Buyer pursuant to
this Section 13 shall be limited to One Hundred
Thousand Dollars ($100,000.00) and Buyer shall
have no other liability or responsibility for
Indemnification hereunder.
(g) Subsequent to the Closing, indemnification under this
Section 13 shall be the exclusive remedy of Seller with respect to any legal,
equitable or other claim for relief based upon this Agreement or arising
hereunder.
14. Termination; Liquidated Damages.
(a) Right of Termination. This Agreement may be terminated
prior to Closing:
(i) By written notice from a party that is not then
in material breach of this Agreement if:
(A) The other party has continued in
material breach of this Agreement for
twenty (20) days after written notice
of such breach from the terminating
party;
(B) Closing does not occur by May 31, 2000
or such other date as is mutually
agreed to by Buyer and Seller.
(b) Obligations Upon Termination.
(i) Upon termination of this Agreement, each party
shall thereafter remain liable for breach of
this Agreement prior to such termination and
remain liable to pay and perform any obligation
under Section 13.
(ii) If Closing shall not have occurred, Seller's
sole remedy at law or in equity for any breach
or default by Buyer described in Section
14(a)(i)(A) shall be the termination by Seller
of this Agreement by giving of written notice to
Buyer pursuant to Section 14(a)(i)(A).
(c) Termination Notice. Each notice given by a party
pursuant to Section 14(a) to terminate this Agreement shall specify the
subsection of Section 14(a) pursuant 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.
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15. Default; Disputes.
If Seller fails to perform under this Agreement, the Buyer may
exercise any right it has against the Seller, including bringing an action for
specific performance. The remedies provided by this Section are in addition to
any right or remedies provided elsewhere in this Agreement or at law or in
equity. In the event a dispute arises between the Parties over the
interpretation of this Agreement, or the performance, alleged non-performance
or breach by either Party hereunder, the Parties hereby agree to seek
resolution of such dispute in good faith through an alternative dispute
resolution process mutually agreeable to the Parties prior to the institution
of any legal proceedings related thereto.
16. Liabilities.
Buyer shall not, in connection with the purchase and sale of Assets
contemplating herein, assume any liabilities or obligations of the Seller
except as specifically set forth herein.
17. Third Party Brokerage.
Seller and Buyer hereby represent and warrant to each other that
neither Seller or Buyer has dealt with any broker or finder in connection with
the transaction which is the subject of this Agreement. Each party hereby
agrees to indemnify, save harmless and defend the other from and against all
claims, losses, liabilities and expenses, including reasonable attorney's fees,
arising out of any claim made by any broker, finder or other intermediary who
claims to have dealt with such party in connection with the transaction which
is the subject of this Agreement. The provisions of the paragraph shall survive
Closing hereunder.
18. Entire Agreement.
This Agreement (which includes the exhibits and schedules attached
hereto) constitutes the entire agreement between the Parties and there are no
other understandings, representations or warranties, oral or written, relating
to the subject matter hereof.
19. Amendment.
This Agreement may not be changed, modified or amended, in whole or in
part, except in writing, signed by all parties.
20. Notice.
Notices given pursuant to this Agreement shall be in writing and shall
be given by actual delivery or by mailing the same to the party entitled
thereto at the addresses set forth 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:
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If to the Seller: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx 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: Xx. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
21. Construction.
Whenever used in this Agreement the singular shall include the plural,
the plural the singular, and the use of any gender shall be applicable to all
genders.
22. Assignment and Recording.
Seller hereby covenants not to assign or record this Agreement except
with the prior written consent of the Buyer. Buyer may assign this Agreement
freely to any affiliated entity, provided such assignment shall not relieve
Buyer of its obligations hereunder.
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
13
14
contemplated by this Agreement and to vest, perfect, assign or confirm, of
record or otherwise, in Buyer title to the Assets.
25. Governing Law.
This Agreement is made and shall be governed by and construed in
accordance with the internal laws of the State of North Carolina.
26. Headings.
The headings and captions in this Agreement are for convenience only
and are not part of this Agreement.
27. Interpretation.
Neither this Agreement nor any provision contained herein shall be
interpreted for or against either party solely because that party or that
party's legal representative drafted the provision.
28. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute the same
Agreement.
29. Severability.
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then such provision shall be
severed from this Agreement and the remainder shall remain in full force and
effect.
[Signature page follows]
14
15
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound,
have caused this Agreement to be duly executed on the day and year first
written above.
SELLER:
XXXXXXX XX ACQUISITION CORP.
By:
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
BUYER:
XXXXXXX FAMILY TOWERS, INC.
BY:
------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
16
INDEX OF EXHIBITS
Exhibit A Description of Towers and Tower Sites
Exhibit B Ground Leases
Exhibit C Form of Purchase Note
Exhibit D Form of Assignment, Xxxx of
Sale and Assumption Agreement
Exhibit E Form of Ground Lease
Assignment and Assumption
Agreement
Exhibit F Form of Lease Agreements
17
EXHIBIT A
DESCRIPTION OF TOWERS AND TOWER SITES
WIKS-FM (MAIN TOWER)
That certain communications tower situated on a two-acre portion of a tract of
land situate in Township Nine, Xxxxxx County, North Carolina, described as the
second parcel in deed recorded in Book 903, Page 34 in the Office of the
Register of Deeds of Xxxxxx County, North Carolina.
Such land does not include that certain one-half acre lot described in deed
recorded in Book 983, Page 904, Xxxxxx County Registry, nor shall it include
the property described in Deed Book 1110, Page 917, Xxxxxx County Registry, nor
shall it include the property described in Deed Book 1508, Page 707, Xxxxxx
County Registry.
WIKS-FM (STL TOWER)
That certain one-hundred (100) foot tower providing a link to the WIKS main
transmitting tower, such one-hundred (100) foot tower situated on a tract of
land more particularly described as follows:
All that certain Piece, Parcel or Plot of land lying, situate and being in
Township No. Eight (8), Xxxxxx County, North Carolina and being more fully
described and bounded as follows:
Beginning at an existing iron pipe in the Southerly right-of-way line of
Glenburnie Drive (formerly Park Avenue), which point of beginning lies North 51
degrees 11'59" East at a distance of 762.92 feet from an existing iron pipe in
the intersection of the Southern right-of-way line of Glenburnie Drive with the
Eastern right-of-way line of Oaks Road.
Thence continuing along the Southerly right-of-way line of Glenburnie Drive,
North 50 degrees 14'00" East for a distance of 350.00 feet to an existing iron
pipe;
Thence South 36 degrees 50'00" East for a distance of 434.98 feet to a point;
Thence South 50 degrees 14'00" West for a distance of 350.00 feet to a point;
Thence North 36 degrees 50'00" West for a distance of 434.98 feet to the point
or place of beginning and containing 3.490 acres more or less.
Saving and excepting, however, from the hereinabove described property that
certain perpetual right-of-way and easement of ingress and egress, on, across
and upon the following described lands, to wit:
All that certain Piece, Parcel or Plot of land lying, situate and being in
Township No. Eight (8), Xxxxxx County, North Carolina and being more fully
described and bounded as follows:
18
Beginning at an existing iron pipe in the Southerly right-of-way line of
Glenburnie Drive (formerly Park Avenue), which point of beginning lies North 51
degrees 11'59" East a distance of 762.92 feet and North 50 degrees 14'00" East a
distance of 350.00 feet from an existing iron pipe in the intersection of the
Southern right-of-way line of Glenburnie Drive with the Eastern right-of-way
line of Oaks Road. Said point of beginning being the Northereasternmost corner
of the hereinabove described parcel of land.
Thence from said point of beginning South 36 degrees 50'00" East a distance of
434.98 feet to a point;
Thence South 50 degrees 14'00" West a distance of 15 feet more or less to a
point;
Thence North 36 degrees 50'00" West a distance of 434.98 feet to an existing
iron pin set in the Southerly right-of-way line of Glenburnie Drive;
Thence in an Easterly direction along said Southerly right-of-way line of
Glenburnie Drive North 50 degrees 14'00" East a distance of 15 feet more or less
to the point or place of beginning.
This being the same right-of-way easement as conveyed by an indenture dated
February 14, 1963 between Jefferay Broadcasting Corporation and Xxxxxx Xxxx and
wife Xxxxx X. Xxxx as recorded in Book 642 at Page 482 in the Office of the
Register of Deeds of Xxxxxx County.
All that certain perpetual right and easement to construct and maintain a
drainage ditch on, across and upon the lands of Xxxxxx Xxxx and wife Xxxxx X.
Xxxx as is set forth in that certain indenture dated February 14, 1963 between
Jefferay Broadcasting Corporation and Xxxxxx Xxxx and wife Xxxxx X. Xxxx
recorded on Book 642 at Page 482 in the Office of the Register of Deeds of
Xxxxxx County, over the following described lands:
Beginning at a point in the Southwesternmost corner of the parcel previously
described (Tract One). Said point of beginning being located 434.98 feet from
the Southern right-of-way line of Glenburnie Drive, along the Westernmost
boundary of Tract One hereinabove conveyed.
Thence from said point of beginning South 36 degrees 50'00" East a distance of
800 feet more or less to the Southern boundary of lands now or formerly owned
by Xxxxxx Xxxx and wife Xxxxx X. Xxxx;
Thence in an Easterly direction and parallel with Glenburnie Drive 15 feet more
or less to a point;
Thence North 36 degrees 50'00" West and parallel with the first call herein 800
feet more or less to the Southerly boundary line of the aforementioned and
described Tract One;
Thence along said Southerly line in a Westerly direction 15 feet more or less
to the point or place of beginning.
19
WRXK-FM
That certain five hundred (500) foot communications tower situated on a tract
of land more particularly described as follows:
All that of that Tract or Parcel of land lying and being in the East half (E
1/2) of the Northwest Quarter (NW 1/4) of Section 28, Township 46 South, Range
25 East, Xxx County, Florida, and being more particularly described as follows:
Commencing at the Northeast corner of the Northwest Quarter (NW 1/4) of said
Section 28, run North 89 degrees 12'00" West along the North line of Section 28
for a distance of 256.67 feet to a concrete monument at the point of beginning;
said corner lying on the Northwesterly right-of-way line of a 40 foot roadway
easement; thence South 30 degrees 34'30" West along the Northwesterly line of
said 00 xxxx xxxxxxx easement 615.00 feet; thence North 29 degrees 18'45" West,
617.09 feet to the North line of said Section; thence South 89 degrees 18'00"
East along said Section line 615.00 feet to the Norhwesterly line of said 40
foot roadway easement and the point of beginning.
WZFX-FM
That certain one thousand one hundred twenty-one (1121) foot communications
tower situated on a tract of land more particularly described as follows:
Lying and being in Bladen County, North Carolina near the Town of Tar Heel, and
being located in a part of a 145.1 acre tract of Land bounded on the south by
N.C. Highway Number 87, on the west by the Xxxxxxx Xxxxxxx Estate on the
northeast by the Cape Fear River and on the southeast by Lands of Xxxxx Xxxxx
Xxxxxxxx, it being contemplated and understood that the area includes only a 2
acre portion of a cleared field lying south of a mill pond and dam area in said
tract, with the central tower location to be within the cleared area of said
field, with sufficient area for its guy wires, as appropriate, not to exceed
the total 2 acres.
20
EXHIBIT B
GROUND LEASES
21
EXHIBIT C
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$930,448.00 February ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for
value received, promises to pay to the order of XXXXXXX XX ACQUISITION CORP., a
Delaware corporation, ("Payee"), the principal amount of NINE HUNDRED THIRTY
THOUSAND FOUR HUNDRED AND FORTY EIGHT DOLLARS ($930,448.00), together with
accrued interest thereon, calculated and payable as set forth below in this
Note. The principal and interest on this Note is payable in lawful money of the
United States of America in immediately available funds at such place in the
United States as Payee may from time to time designate in writing to Payor.
This Note is made pursuant to that certain Agreement of Sale (the
"Sale Agreement"), dated February ____, 2000, by and among Payor and Payee.
1. Payment of Principal and Interest.
(a) Calculation and Payment of Interest.
Interest on the principal balance of this Note outstanding from time
to time until paid in full shall accrue at the rate of six and seventy-seven
one hundredths percent (6.77%) compounded annually (the "Rate"), computed on
the basis of a 365 or 366-day year, as appropriate, for the actual number of
days elapsed, commencing on the date hereof.
(b) Payments Prior to Maturity Date.
On the first day of each month Maker shall pay, in advance, Seven
Thousand Forty Six Dollars and Eleven Cents ($7,046.11). 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.
22
(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 of it or
for all or any substantial portion of its
property or assets;
(iv) makes a general assignment for the benefit
of its creditors; or
(c) an involuntary case or proceeding is commenced
against Payor under any Bankruptcy Law and is not
dismissed, bonded or discharged within ninety (90)
days thereafter, or a court of competent
jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against Payor in an
involuntary case or proceeding;
(ii) appoints a Custodian of Payor or for all or
substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each
case the order or decree remains unstayed
and in effect for ninety (90) days.
(d) The following terms used in this Note have the
meaning assigned below:
2
23
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
federal, state or foreign law for the relief of debtors or any arrangement,
reorganization, assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of Payor.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Event of Default" means any of the occurrences specified in Section 2
of this Note.
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 North Carolina, without
giving effect to any conflicts of laws principles thereof that would otherwise
require the application of the law of any other jurisdiction.
(e) Notices. Any notice, request, instruction or other
document to be given hereunder by either party to the other shall be in writing
and shall be deemed given when received and shall be (i) delivered personally
or (ii) mailed by certified mail, postage prepaid,
3
24
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
Attention: Ms. B. Xxxxxxxx Xxxxxxx
Fax Number: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax Number: (000) 000-0000
If to Payee, addressed to:
Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxx
Fax Number: (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.
[Signature page follows]
4
25
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
26
EXHIBIT D
FORM OF ASSIGNMENT, XXXX OF SALE AND ASSUMPTION AGREEMENT
This Assignment, Xxxx of Sale and Assumption Agreement (this "Agreement") is
made effective as of 12:01 a.m. Eastern Time, on the ____ day of February, 2000
by and between XXXXXXX XX ACQUISITION CORP. ("Seller") and XXXXXXX FAMILY
TOWERS, INC.
("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the
"Asset Purchase Agreement") dated as of February _____, 2000 by and between
Seller and Purchaser. Capitalized terms used but not defined herein shall have
the meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell,
convey and assign to Purchaser all of Seller's right, title and interest to the
Towers and Tower Leases and Purchaser shall assume the Assumed Liabilities, as
defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties hereto agree as follows (capitalized terms used herein but not
defined herein shall have the meaning given to them in the Asset Purchase
Agreement):
1. Seller hereby bargains, sells, conveys, assigns and
delivers all of Seller's right, title and interest in and to:
a. The Towers, such Towers more particularly
described in Exhibit A of the Asset Purchase Agreement; and
b. The Tower Leases.
Items a. and b. above are hereinafter referred to as the "Assigned Assets."
2. Purchaser hereby accepts the sale, conveyance and
assignment of the Assigned Assets, effective as of 12:01 a.m. Eastern Time on
February __, 2000.
3. Purchaser hereby assumes and agrees to pay and
perform the Assumed Liabilities pursuant to Section 2 of the Asset Purchase
Agreement, effective as of 12:01 a.m. Eastern Time on February __, 2000.
4. After the date hereof, Purchaser and Seller will, at
the request of the other party, promptly obtain, execute and deliver, or cause
to be obtained, executed and delivered, to the other party such assignments,
bills of sale, endorsements, and other such instruments or documents to be
executed by Seller or Purchaser, as the case may be, in addition to this
Agreement, in form and substance reasonably satisfactory to the other party, as
such other party
27
may reasonably deem necessary or desirable so as (i) to vest in Purchaser title
to and possession of the Assigned Assets and (ii) to perfect and record, if
necessary, the sale, assignment, conveyance, transfer and delivery to Purchaser
of the Assigned Assets.
5. This Agreement is made pursuant to, and is subject
to all of the terms, representations, warranties and covenants of, the Asset
Purchase Agreement, the terms of which are hereby incorporated by reference. In
the event of any conflict between this Agreement and the Asset Purchase
Agreement, the terms of the Asset Purchase Agreement shall govern.
[Signature page follows]
28
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the day and year first written above.
SELLER:
XXXXXXX XX ACQUISITION CORP.
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By:
-------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
29
EXHIBIT E
FORM OF GROUND LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is entered into
as of this _____ day of February, 2000 by and between XXXXXXX XX ACQUISITION
CORP. ("Assignor"), and XXXXXXX FAMILY TOWERS, INC., ("Assignee").
WHEREAS, Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx
(collectively, "Lessor"), and Xxxxxx Communications, Inc. ("Xxxxxx"), entered
into that certain Lease Agreement, dated November 3, 1986, where Lessor,
pursuant to such Lease Agreement, leased to Xxxxxx certain real property in New
Bern, North Carolina (the "WIKS-FM Lease");
WHEREAS, Xxxxxx, pursuant to that certain Assignment Agreement dated
December 19, 1988, assigned all of its right, title and interest, in and to the
WIKS-FM Lease to WIKS-FM, Inc. ("WIKS");
WHEREAS, WIKS, pursuant to that certain Assignment of Lease dated
October 31, 1996, assigned all of its right, title and interest in and to the
WIKS-FM Lease to Assignor;
WHEREAS, D. Xxxxxxxx Xxxxxx and wife, Xxxxxx Xxxxxx (collectively
"Xxxxxx"), and Action Radio, Inc. ("Action"), entered into that certain Lease
Agreement, dated May 27, 1986, where Xxxxxx, pursuant to such Lease Agreement,
leased to Action an approximately two acre portion of a tract of land in
Whiteville, North Carolina (the "WZFX-FM Lease");
WHEREAS, Xxxxxx, by virtue of, and pursuant to, the merger of Action
and Power Broadcasting, Inc. on or about October 1, 1987, such merger forming
Xxxxxx, became lessee under the WZFX-FM Lease;
WHEREAS, Xxxxxx, pursuant to that certain Assignment of Lease
Agreement, dated May 20, 1997, assigned all of its right, title and interest in
and to the WZFX-FM Lease to Assignor;
WHEREAS, Assignor is the lessee under that certain Lease Agreement,
dated September 6, 1994, by and between Assignor and Xxxxxx X. Xxxxxxx, such
Lease Agreement leasing certain real property in Estero, Florida to Assignor
(such Lease Agreement called herein the "WRXK-FM Lease" and together with the
WIKS-FM Lease and the WZFX-FM Lease, called collectively herein, the "Leases");
WHEREAS, Assignor intends to sell and convey to Assignee certain tower
assets used and held for use in the operation of broadcast stations WIKS-FM,
New Bern, North Carolina, WZFX-FM, Whiteville, North Carolina and WRXK-FM,
Estero, Florida, pursuant to
30
the terms of that certain Agreement of Sale (the "Purchase Agreement"), dated
as of February ___, 2000, by and between Assignor and Assignee;
WHEREAS, in connection with such transaction, Assignor is required to
assign to Assignee all of Assignor's right, title and interest, as lessee, in
and to the Leases; and
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assignment. Assignor hereby transfers, conveys and assigns to
Assignee all of Assignor's right, title and interest in, to and under the
Leases.
2. Assumption of Liabilities under the Leases. Assignee hereby
assumes the liabilities, duties and obligations of Assignor under the Leases
which accrue on or after the date hereof, and Assignor shall have no further
liability or responsibility therefor.
3. Counterparts. This Assignment may be executed in counterparts.
[Signature pages follow]
31
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the day and year first written above.
[SEAL] ASSIGNOR:
XXXXXXX XX ACQUISITION CORP.
ATTEST: By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
-------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: )
-------------------------------
) ss.
COUNTY OF )
-------------------------------
This is to certify that on the _____ day of February, 2000, before me
personally appeared Xxxxxx X. Xxxxxxx with whom I am personally acquainted,
who, being by me duly sworn, says:
That he is Chief Executive Officer and B. Xxxxxxxx Xxxxxxx is the
Secretary of XXXXXXX XX ACQUISITION CORP., the corporation described in and
which executed the foregoing instrument; that he knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal, and the name of the corporation was subscribed thereto by the said Chief
Executive Officer, attested by said Secretary, and said common seal was
affixed, all by authority duly conferred, and that said instrument is the act
and deed of said corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
---------------------------------
NOTARY PUBLIC
My commission expires:
---------------------------------
32
[SEAL] ASSIGNEE:
XXXXXXX FAMILY TOWERS, INC.
ATTEST: By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
-------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: )
-------------------------------
) ss.
COUNTY OF )
-------------------------------
This is to certify that on the _____ day of February, 2000, before me
personally appeared Xxxxxx X. Xxxxxxx with whom I am personally acquainted,
who, being by me duly sworn, says:
That he is Chief Financial Officer and B. Xxxxxxxx Xxxxxxx is the
Secretary of XXXXXXX FAMILY TOWERS, INC., the corporation described in and
which executed the foregoing instrument; that she knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal, and the name of the corporation was subscribed thereto by the said Chief
Executive Officer, attested by said Secretary and said common seal was affixed,
all by authority duly conferred, and that said instrument is the act and deed
of said corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
-------------------------------------
NOTARY PUBLIC
My commission expires:
---------------------------
33
EXHIBIT F
FORM OF LEASE AGREEMENTS
34
LEASE AGREEMENT (O&L - WRXK-FM)
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower as such tower is described
on Exhibit B attached hereto ("Tower"), on a certain tract of real estate
located at Estero, Florida, as such land is more fully described in Exhibit A
attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower
Site" shall also include any appurtenant easements on such land);
WHEREAS, Lessor desires to lease the space on the Tower for the
purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such space from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 COMMENCEMENT OF TERM. The term of this Lease and the
payment of rent and other performances in accordance with the terms of this
Lease shall commence on the date hereof.
1.02 EXHIBITS. All Exhibits referred to in this Lease are
incorporated herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 TOWER SPACE. Lessor hereby leases to Lessee, and
Lessee leases from Lessor, space on the Tower, as such space is described on
Exhibit C attached hereto, for the purposes of the broadcast transmission of
WRXK-FM (the "Tower Space").
2.02 OWNERSHIP OF PROPERTY; ACCESS.
(a) Except for "Lessee's Property" (as defined
below), all tenant improvements including all fixtures and trade fixtures shall
become the property of the Lessor, and shall remain with the Tower Space after
the Lessee vacates same.
(b) The Lessee's antenna, transmission line, and
other equipment, together with any replacements thereof and modifications and
additions thereto, which are permitted hereunder, shall be and remain Lessee's
Property, and are hereinafter
35
referred to as "Lessee's Property". Lessee will be solely responsible for the
maintenance of Lessee's Property, including all expenses associated with such
repair.
(c) Lessee shall have reasonable right of access
to the Tower Space at all times in emergency situations and whenever reasonably
necessary for equipment maintenance and repair. Lessee shall also have
reasonable rights of access at any time to the Tower Space for ingress, egress,
utilities, the locating and usage of cabling and related equipment, operations,
maintenance, repair or remodeling, or other engineering purposes.
3. PERMITTED USES.
3.01 BY LESSEE.
(a) Subject to all appropriate government
approvals, including the Federal Communications Commission ("FCC"), the Tower
Space may be used only for radio transmitting and receiving. Such operations,
shall be conducted in accordance with the standards imposed by the FCC and any
other governmental body with authority over such transmission and operations.
(b) Except as expressly permitted by this Lease
and unless prior written approval of Lessor has been given, Lessee shall not
construct or make any improvements or install any equipment on the Tower.
Lessee may repair and maintain equipment as it deems necessary to its
operations within Lessee's space in all respects in compliance with the terms
hereof. The Tower Space, Lessee's interior and exterior equipment, and all
other improvements shall be maintained in an orderly and professional manner.
3.02 BY LESSOR.
(a) Subject to the rights elsewhere granted to
Lessee in this Lease and with prior notice to Lessee and no loss of service or
interruption (beyond a temporary, non-recurring and de minimis amount), Lessor
reserves the right to use the Tower, at its own expense, as it sees fit and to
fasten additional equipment to the Tower for any purpose, including the right
to install transmitting and/or receiving antennas of others; provided that
Lessor shall use reasonable efforts to restrict any loss of Lessee's service or
interruption pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00
a.m.
(b) Subject to the rights elsewhere granted to
Lessee in this Lease, Lessor shall have the right to use for itself or lease to
others the remainder of the Tower Site or use of any of the improvements
thereon, space 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.
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(c) Except as expressly provided for herein,
Lessor shall have no liability for any action or omission taken in exercise of
its rights hereunder upon reasonable reliance on recommendation of its
engineering personnel.
(d) Subject to the terms of this Lease, Lessor
also reserves the right to erect one (1) or more additional towers on the Tower
Site.
4. TERM.
4.01 TERM. This Lease shall have a term of twenty (20)
years from the Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 RENTAL. Lessee shall pay rent for each consecutive
twelve-month period beginning on the Commencement Date (each a "Lease Year")
during the term of this Lease. Such rental payment shall be payable in equal
and successive monthly installments in advance beginning with the Commencement
Date and continuing thereafter on the first day of each month during the term
of this Lease, such rental payments to be made according to the following
schedule:
--------------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
--------------------------------------------------------------------------
1 $9,097.36 $757.28
--------------------------------------------------------------------------
2 $9,097.36 $757.28
--------------------------------------------------------------------------
3 $9,097.36 $757.28
--------------------------------------------------------------------------
4 $9,097.36 $757.28
--------------------------------------------------------------------------
5 $9,097.36 $757.28
--------------------------------------------------------------------------
6 $9,097.36 $757.28
--------------------------------------------------------------------------
7 $9,097.36 $757.28
--------------------------------------------------------------------------
8 $9,097.36 $757.28
--------------------------------------------------------------------------
9 $9,097.36 $757.28
--------------------------------------------------------------------------
10 $9,097.36 $757.28
--------------------------------------------------------------------------
11 $9,097.36 $757.28
--------------------------------------------------------------------------
12 $9,097.36 $757.28
--------------------------------------------------------------------------
13 $9,097.36 $757.28
--------------------------------------------------------------------------
14 $9,097.36 $757.28
--------------------------------------------------------------------------
15 $9,097.36 $757.28
--------------------------------------------------------------------------
16 $9,097.36 $757.28
--------------------------------------------------------------------------
17 $9,097.36 $757.28
--------------------------------------------------------------------------
18 $9,097.36 $757.28
--------------------------------------------------------------------------
19 $9,097.36 $757.28
--------------------------------------------------------------------------
20 $9,097.36 $757.28
--------------------------------------------------------------------------
5.02 PAYMENT OF RENTALS. Rentals to be paid hereunder
shall be paid monthly in lawful money of the United States of America and shall
be paid in advance on the first day of each month during the term of this Lease
by crediting the payment owed to Lessee by Lessor under that certain Promissory
Note, made by Lessor in favor of Lessee dated _______,
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2000, on the first day of each month during the term of this Lease. In the
event of prepayment of the Promissory Note by Lessor or other action resulting
in amounts equal to any monthly rental payment not being concurrently due from
Lessor under the Promissory Note, then Lessee shall pay the monthly rental
amount in advance on the first day of the month in question by mailing payment
to the Lessor c/x Xxxxxxx Family Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attn: Xx. Xxxxxxxx Xxxxxxx, or to such other person or
address as Lessor may in writing direct. The payment of the monthly rental for
the first month of the term of this Lease shall be prorated based on the number
of days remaining in such month, including the first day on which this Lease
become effective.
5.03 ELECTRICITY AND OTHER UTILITIES. In addition to the
payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its
own telephone lines and service, electrical service (including electrical
service to the Tower used by Lessee as measured by a separate electrical meter
at Lessee's expense). Lessor shall pay for the electrical service to the Tower
for the Tower lighting.
6. AUTHORITY.
6.01 QUIET ENJOYMENT. Lessor represents and warrants that
it has the full power and authority to enter into this Lease, and covenants and
agrees that Lessee, upon paying the rents described herein and observing and
keeping the covenants, agreements, and stipulations of this Lease on Lessee's
part to be observed and kept, shall lawfully, peaceably, and quietly hold,
occupy, and enjoy the Tower Space, and all other rights and privileges granted
herein, without hindrance, eviction, or molestation by Lessor or any party
claiming by or through Lessor.
6.02 LESSEE'S APPROVAL. Lessee represents and warrants
that it has the full power and authority to enter into and perform this Lease.
Any and all necessary corporate resolutions, encumbrance certificates, etc.,
shall be supplied by Lessee upon the request of Lessor.
7. PERMITS.
7.01 PERMITS. Lessor shall obtain all necessary licenses
or permits in connection with the Tower Space except that Lessee shall obtain,
at its own expense, any and all necessary licenses or permits from such
governmental authorities as shall have jurisdiction in connection with the (b)
the operations, installation, repair, alteration, or replacement of Lessee's
equipment (including, without limitation, Lessee's antenna and transmission
and/or receiving equipment); or (c) with any of Lessee's activities thereon or
contemplated by this Lease. At Lessor's request, Lessee shall furnish Lessor
with copies of same, and shall abide by the terms and provisions of such
licenses and permits.
8. MAINTENANCE OF TOWER SPACE AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
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(a) Lessee, at its own cost and expense, shall maintain
and repair Lessee's Property, including specifically its antenna, related
equipment, transmission lines, transmitters, and other equipment. Lessor shall
perform the same tasks with respect to the Tower. All such maintenance shall be
conducted by the parties in accordance with good engineering standards and in
conformity with the requirements of the FCC or any other body having
jurisdiction over the Lessee and its property, including, without limitation,
any rules, regulations, or guidelines of the FCC implementing the National
Environmental Policy Act of 1969 pertaining to electromagnetic or radio
frequency radiation. Each of Lessor and Lessee shall take all reasonable
precautions to avoid interference or hindrance to and with the operations of
the other party hereto. In this regard, each party hereto agrees to eliminate,
without cost to the other party hereto, any interference or hindrance to such
other party's operation. Maintenance and repair of Lessee's Property shall be
performed only by a reputable contractor and in accordance with the provisions
of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's Property
during normal business hours upon reasonable notice to Lessee, except that, in
the event of an emergency, as determined by Lessor, Lessor may enter at any
time, giving notice of such emergency to Lessee as soon as is practical. In the
event that Lessor reasonably determines that Lessee has not maintained Lessee's
Property and equipment in good order and repair according to industry
standards, and that such repairs are necessary for the safety of the Tower or
the Tower Site, or the prevention of interference with Lessor or any other user
of the Tower or any other broadcaster, Lessor may, at its option, make such
emergency repairs to the property as it deems reasonably necessary, and any
amount expended by Lessor therefor shall be reimbursed to it by Lessee
immediately upon presentation of a statement and shall be deemed additional
rent. Lessor shall not be liable for inconvenience, disturbance, loss of
business, or other damage to Lessee by reason of repairing any of Lessee's
Property which Lessee has failed to properly maintain.
(c) With respect to the non-emergency repairs which
Lessor, in its reasonable discretion, determines that Lessee should make to
maintain Lessee's Property and equipment in good order, and that such repairs
are necessary for the safety of the Tower or the Tower Site, or the prevention
of interference with Lessor, in violation of the terms of this Agreement,
Lessor shall so notify Lessee in writing, specifying the maintenance and
repairs required to be performed by Lessee. In the event that, within ten (10)
business days following such written notice (or such longer period as may be
reasonably necessary taking into account all facts and circumstances), Lessee
shall not have performed such maintenance and repairs, Lessor may, at its sole
option, make such repairs as it deems reasonably necessary, and any amount
expended by Lessor therefor shall be deemed additional rent. Lessor shall not
be liable for inconvenience, disturbance, loss of business, or other damage to
Lessee by reason of repairing the property and equipment of Lessee which Lessee
has failed to properly maintain.
(d) No work (including electrical work), except for
emergency repairs that Lessee shall perform to return to, or maintain the
station on air in the event of a failure, will be performed by the Lessee in
connection with the installation, alteration, maintenance, repair, or removal
of any of Lessee's transmission lines, antenna, and other equipment on the
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
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and specifications have been approved in writing by Lessor not to be
unreasonably withheld, delayed or conditioned. Lessee, upon demand therefor by
Lessor, agrees to pay Lessor as additional rent all amounts reasonably expended
by Lessor in connection with review of any such contract, plans, and
specifications.
(e) With respect to any work to be performed by or on
behalf of Lessee in connection with the installation, alteration, maintenance,
repair, or removal of any equipment on the Tower (including any ascension of
the Tower), or in or about the Tower Site. Lessee may only employ a contractor
who has been approved in writing and in advance by Lessor. Lessor agrees that
it will not unreasonably withhold its approval of any contractor who has the
requisite experience and industry standard insurance coverage and who will, at
the sole option of Lessor, provide a bond to cover any work which it has been
retained to perform. Lessor agrees to consult on call in any emergency
situation and immediately give its approval or disapproval.
(f) All work by or on behalf of the Lessee or Lessor
shall be carried out (i) in a good and workmanlike manner; (ii) in accordance
with established engineering standards and public ordinances, rules, and
regulations applicable to such work, including, without limitation, any rules,
regulations, or guidelines of the FCC implementing the National Environmental
Policy Act of 1969, pertaining to electromagnetic or radio frequency radiation;
(iii) in accordance with plans and specifications, including mechanical and
electrical drawings, which have been submitted to and approved in writing and
in advance by Lessor; and (iv) in accordance with Lessor's security procedures
with respect to protection of the Tower Site.
(g) Notwithstanding the receipt of the approvals by
Lessor as required in this paragraph, Lessee shall not be relieved of its
responsibilities and liabilities for interference or otherwise as herein
provided, nor shall said approval be deemed a waiver of any other rights of
Lessor under this Lease.
(h) In the event that any notice of lien or lien shall be
filed against any part of the Tower Site for work claimed to have been done or
materials claimed to have been furnished to Lessee, the same shall be
dismissed, withdrawn, discharged or bonded (to Lessor's reasonable
satisfaction) by Lessee within thirty (30) days thereafter at Lessee's expense;
and if Lessee shall fail to take such action as shall cause such lien to be
discharged within thirty (30) days, Lessor may, at its option, discharge the
same by deposit or by bonding proceedings. Lessor may require the lienor to
prosecute the appropriate action to enforce the lienor's claim. In such case,
Lessor shall give immediate notice to Lessee of such pending action or
proceeding so that Lessee may have an opportunity to legally contest or defend
the action or proceeding. If, after such notice to Lessee, a judgment is
recovered on the claim, Lessor, at its sole option, may pay the judgment. Any
reasonable amount paid or expense incurred or sum of money paid by Lessor
(including reasonable attorney's fees) by reason of the failure of Lessee to
comply with the foregoing provisions of this paragraph, or in defending any
such action, shall be paid to Lessor by Lessee, and shall be treated as
additional rent hereunder.
8.02 AT EXPIRATION OR TERMINATION. At the expiration or
termination of this Lease, Lessee shall promptly surrender possession of the
Tower Space to Lessor in as
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40
good a condition as the same were received at the commencement of the term,
reasonable wear and tear and damage by fire or other casualty beyond Lessee's
reasonable control excepted.
9. MAINTENANCE OF TOWER.
9.01 MAINTENANCE OF TOWER.
(a) Lessor shall maintain the Tower in good y
security policies reasonably established from time to time by Lessor.
(b) Lessor assumes the obligation and
responsibility for complying with trequirements of the FCC regarding
obstruction, marking and lighting of the Tower. Lessor shall maintain the Tower
and support systems in good repair and in good operating condition in
accordance with the requirements of governmental authorities.
(c) In the event that Lessor determines that
repairs, alterations, or improare necessary or desirable to the Tower or the
leased spaces of other tenants, Lessor may, upon reasonable notice and for the
shortest practical period of time (except for emergency situations), close
entrance doors, common areas, drive-ways, rights-of-way, service areas, parking
areas, or any other facilities at its discretion without being liable to
Lessee; provided that if any of the above would restrict Lessee's ability to
broadcast, Lessor shall use reasonable efforts to restrict any closure or
interruption pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00
a.m.. The closing of entrances, doors, common areas, parking areas, or other
facilities for the making of the repairs, alterations, or improvements
described herein shall, under no circumstances, constitute an eviction of the
Lessee or be grounds for termination of this Lease or the withholding of any
rental payments or other payments or performances required to be paid or made
by Lessee under the terms hereof, provided, Lessor shall use reasonable efforts
to ensure that any action taken in accordance with this paragraph shall not
adversely affect the rights of Lessee hereunder. Under no such circumstances
shall Lessee be entitled to terminate this Lease nor shall it be entitled to
compensation for any loss or damage it may sustain (including loss of use, loss
of advertising/sponsorship revenues, and consequential damages) by reason of
such changes or alterations.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own
expense, to make such changes and alterations in the Lessee's Property situated
on the Tower, subject to Paragraph 8.01 and Paragraph 11 hereof, as its
operations may require, including the renovation, replacement, or removal of
its antenna; provided, however, that such changes or alterations conform with
recognized engineering standards and, if necessary, have been approved by the
FCC and any other authority having jurisdiction over Lessee; and provided
further, that plans and specifications are first submitted to and approved in
writing by Lessor. Lessee shall make no changes in the equipment or equipment
position without such approval, and Lessor shall not unreasonably fail to give
such approval within ten (10) business days.
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(b) This Lease is based upon carefully computed
tower loading capacity. If any change proposed by Lessee in the type, location,
or positioning of Lessee's Property should, in Lessor's judgment, require a
computer or other type of feasibility study to determine Tower loading
capacity, such study shall be performed by an engineer chosen by Lessor, and
approved by Lessee (such approval not to be unreasonably withheld, delayed or
conditioned) whose decision shall be final and binding upon both parties. The
cost of such study or any other costs reasonably incurred by Lessor in
determining the feasibility of any proposed change or alteration in the type,
location, or positioning of Lessee's Property shall be borne entirely by
Lessee.
11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation on the Tower Space or on
the Tower after the date hereof, notification of the particulars of such
proposed installation shall be submitted to Lessor hereto and any other lessees
or users of Tower space whose names and addresses are supplied to Lessee by
Lessor in writing, and the Lessor and such other users will be requested to
advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days
after receipt of such notification, whether they have any reasonable objections
thereto on the grounds that objectionable interference may result; provided,
this Section 11.01 shall not apply to any currently installed Lessee's Property
or its replacement, maintenance or repair. If the Lessor or any other user
shall reasonably object within this period to such plans and Lessee is
unwilling to alter its plans to meet the objections, the dispute shall be
submitted to an independent professional engineer chosen by Lessor, and such
engineers decision shall be final and binding upon all parties. The cost of any
such studies shall be borne by Lessee.
11.02 INTERFERENCE WITH LESSOR, LESSEE, OR OTHERS.
Notwithstanding the provisions of Paragraph 11.01, should any change, after the
date hereof, in the facilities or mode of operation of Lessee or Lessee's
failure to comply with the Maintenance Standards, as defined in Paragraph
11.04, cause any objectionable electrical or physical interference (including
interference from any other structure erected on the Tower Site) to the
television and/or radio broadcasting and/or receiving operations of any other
lessee, then, promptly after written notification of such interference, the
Lessee, at its sole expense, will take such steps as may be reasonably required
to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filters or other equipment, provided that, if such interference is caused,
after the date hereof, by the failure of the Lessor or any other lessee
suffering the interference to comply with the Maintenance Standards, as defined
in Paragraph 11.04, then Lessor shall, or shall cause the other lessee
suffering the interference, at its sole expense, to comply with such
Maintenance Standards. Any dispute as to the cause of interference, or the
steps reasonably required to correct it, arising under this Paragraph. 11.02,
shall be submitted to an independent professional engineer chosen by Lessor,
and such engineer's decision shall be final and binding upon the parties. If
such interference is found to be caused by such changed facilities or
operation, the fees and charges of the engineer to whom the dispute is referred
shall be borne by the party whose changed facilities or mode of operations gave
rise to the claimed interference. If such interference is found not to be
caused by
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such changed facilities or operations, the fees and charges of the engineer to
whom the dispute is referred shall be borne by the objecting party. All other
leases and/or agreements to lease space at the Tower Site shall contain this
language.
11.03 INTERFERENCE BY OTHER USER. Any subsequent agreement
under which Lessor allows any other person to occupy any portion of the Tower
shall provide that, should the installation, operation, or maintenance of the
equipment or the activities of such other person cause any objectionable
interference with the operations of Lessor or Lessee, then, promptly after
written notification of such, such other tenant or user, at its sole expense,
will take such steps as may be reasonably necessary to correct such
interference, including, but not limited to, changing frequency, ceasing
transmission, reducing power, and/or the installation of any filter or other
equipment, provided that if such interference is caused by the failure of any
other lessee to comply with the Maintenance Standards, as defined in Paragraph
11.04, such other lessee will, at its sole expense, comply with such Maintenance
Standards. To the best of its ability, Lessor shall not permit any operations by
other tenants, the effect of which would be to prohibit Lessee from operating in
the manner contemplated herein, without the prior written consent of Lessee.
Lessor shall have no liability for any action or omission taken upon reasonable
reliance on the recommendation of qualified engineering personnel. Lessor agrees
that it will take commercially reasonable efforts to ensure that the
installation, operation or maintenance of its equipment which is installed after
the commencement date of this Lease on, in or around the Tower shall not cause
any objectionable interference with the operations of Lessee. Immediately upon
notification of such interference by Lessee, Lessor shall at its sole expense
take such steps as may be reasonably necessary to correct such interference,
including, but not limited to, changing frequency, ceasing transmission,
reducing power, and/or the installation of any filter or other equipment.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the
purposes of this Lease, compliance with "Maintenance Standards" shall mean that
a tenant or user of the Tower shall (a) maintain and operate its equipment in
accordance with the requirements, rules, regulations, and guidelines of the FCC,
and the standards of manufacturers of the equipment; and (b) maintain and
operate its equipment in accordance with good engineering practice.
12. UTILITIES.
12.01 UTILITIES. Subject to the required approvals and
cooperation of any governmental authority or public utilities, Lessee shall
arrange and be responsible for the installation and provision of electrical and
telephone lines serving Lessee's Property at any building on the Tower Site
owned by Lessor. Lessee shall be responsible for procurement of and payment for
all telephone services as described in Paragraph 5.03 and used by Lessee.
13. TAXES.
13.01 PAYMENT OF TAXES. Lessee shall pay all real estate
taxes, assessments, or levies assessed or imposed against the Tower Site
(including the Tower Space), and all taxes which may be assessed against the
Tower and any buildings thereon. [Foregoing obligation is subject to $200,000
12-month limit when aggregated with other borrowers under Credit Agreement per
of First Amendment to Credit Agreement]. Lessee shall pay all
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43
personal property or other taxes assessed or imposed on Lessee's Property, and
shall cooperate with Lessor to ensure that such property is properly separated
from that of Lessor or other tenants for assessment purposes.
14. INSURANCE.
14.01 PUBLIC LIABILITY. Lessee shall procure and maintain
comprehensive public liability insurance, naming Lessor as an additional insured
as its interests shall appear, covering all of the Lessee's operations and
activities on the Tower Space, including but not limited to, the operations of
contractors and subcontractors and the operation of vehicles and equipment
(including the Tower elevator), with limits of liability for the term of this
Lease of not less than Five Million Dollars ($5,000,000.00) in the aggregate for
personal injury or death in any occurrence and not less than Five Million
Dollars ($5,000,000.00) to cover property damage, with a liability umbrella of
not less than One Million Dollars ($1,000,000.00). Certificates evidencing such
insurance shall be furnished to Lessor upon its request. The amounts specified
hereunder shall be revised every five (5) years to such amounts as Lessor may
reasonably require upon the advice of its insurance consultants. [Foregoing
obligation is subject to $200,000 12-month limit when aggregated with other
borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement].
14.02 CONTRACTOR LIABILITY. Lessee shall also cause the
contractors erecting, installing, or maintaining Lessee's Property or performing
any other work for Lessee on the Tower Site to procure reasonable public
liability insurance acceptable to Lessor and naming the Lessee and Lessor as
named insureds. Certificates evidencing such insurance shall be furnished to
Lessor in advance of any work being performed.
14.03 TOWER INSURANCE. Lessee shall procure and maintain
physical damage insurance on the Tower in an amount sufficient to repair or
replace the Tower with such coverage to be on an "All Risks" basis, including,
without limitation, coverage for the perils of fire, lightning, windstorm, hall,
flood, earthquake, collapse, explosion, aircraft and vehicle damage, vandalism,
and malicious mischief. [Foregoing obligation is subject to $200,000 12-month
limit when aggregated with other borrowers under Credit Agreement per 1.5D of
First Amendment to Credit Agreement]. Lessee shall be solely responsible for its
insurance on Lessee's Property, together with business interruption insurance.
14.04 TOWER DAMAGE. In the event that the Tower is
destroyed or damaged by fire, lightning, windstorm, flood, earthquake,
explosion, collapse, aircraft, or other vehicle damage or other casualty covered
by insurance, Lessor shall promptly reconstruct or repair the Tower to such good
condition as existed before the destruction or damage, and give possession to
Lessee of substantially the same space leased hereunder. Lessee shall promptly
pay over to Lessor any insurance proceeds it receives from insurance policies
Lessee is required to procure under Section 14.03 hereof for the purpose of use
by Lessor to fund reconstruction of the Tower as required of Lessor under this
Section 14.04. If the Tower is in need of such repair or is so damaged by fire,
lightning, windstorm, flood, earthquake, explosion, aircraft or other vehicle
damage, collapse, or other casualty that reconstruction or repair cannot
reasonably be undertaken without dismantling Lessee's antenna, then upon written
notice to Lessee, Lessor may remove
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44
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
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 or (b) replace the Tower
within one (1) year if Lessor has provided the notice described in clause (a)
above, of the date of destruction, or repair the same within such shorter time
period after the casualty as may be reasonable, then Lessee, upon thirty (30)
days' written notice to Lessor, may terminate this Lease, provided if Lessor
has provided the notice described in clause (a) above, Lessee must make such
election within one hundred twenty (120) days prior to the expiration of said
repair or replacement period. Lessee agrees that it shall maintain adequate
business interruption insurance at all times during the term of this Lease to
adequately protect it from any interruption of signal activities due to Tower
damage (including costs of reinstallation of its equipment and lines), and
Lessor shall have no liability on account of such business interruption or
reinstallation costs due to damage or destruction under this paragraph.
15. EMINENT DOMAIN.
(a) In the event that all of the Tower (or any
portion of the Tower necessary for the guy wires, or other appurtenances
necessary to Lessee's broadcasting operations) is acquired or transferred or
condemned pursuant to eminent domain proceedings (or the threat thereof), the
obligation of the parties under this Lease shall be terminated as of the date
of acquisition or transfer. Lessor shall be entitled to the entire condemnation
award. If Lessor determines to build a new tower as a replacement for the Tower
on the condemned property, Lessor agrees to provide space on the new tower
reasonably comparable to the space leased to Lessee pursuant to this Lease on
terms reasonably equivalent to the terms of this Lease.
(b) In the event that this Lease is terminated
due to eminent domain proceedings, then Lessee shall be relieved of any further
obligations to make any rental payments or performances for any period after
the date of such termination of this Lease; and subject to offset or
withholding by Lessor to cover any unpaid additional rent or other authorized
charges which may be owed through the date of termination, Lessee shall be
entitled to a refund of any advance rental sums which it has paid in proportion
to the period of the Lease through such date of termination.
16. SUCCESSORS AND ASSIGNMENT.
16.01 SUCCESSORS. All rights and liabilities herein given
to or imposed upon the respective parties hereto shall, to the extent that such
are assignable, extend to and bind the several and respective successors and
assigns of the parties hereto.
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16.02 ASSIGNMENT. Lessee shall not assign, sublet,
or transfer this Lease or any interest therein, or permit or allow through any
act or default of itself, or of any other person, any transfer thereof by
operations of law or otherwise without the prior written consent of Lessor
except:
(a) Lessee may assign this Lease to any bona fide
third party purchaser of substantially all the assets comprising of Lessee's
radio station broadcasting from the Tower Site, who shall execute an assignment
and assumption agreement in form reasonably acceptable to Lessor; and
(b) Lessee may assign or transfer all or a
portion of the assets of Lessee, including this Lease, to any corporation
controlling, controlled by, or under common control with, Lessee.
(c) Any assignment or subletting by Lessee except
as permitted herein shall be void and of no effect. Any permitted assignment
shall not relieve Lessee of any of its liabilities hereunder. A change in
control of Lessee, but not the mortgaging by Lessee of its rights hereunder,
shall constitute an assignment of this Lease. Lessor agrees to enter into
documentation reasonably requested by any lender to Lessee in connection with
Lessee's mortgaging of its rights hereunder.
(d) Lessor may assign or transfer this
Lease without the consent of Lessee, but shall notify Lessee following any
transfer or assignment.
17. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the
event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not
be deemed fixtures) on the Tower Space within thirty (30) days of such
termination. Such removal shall be conducted in accordance with Paragraph 8.01
hereof Lessee shall promptly repair any and all damage caused by such removal.
Any of Lessee's Property remaining on the Tower Space after the expiration of
the thirty (30) day period shall be deemed to be the property of Lessor, which
Lessor may have removed at Lessee's expense.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(a) If Lessee shall make default in making any
payment herein provided for and any such default shall continue for a period of
ten (10) business days after written notice to Lessee, or if Lessee shall make
default in the performance of any obligation of Lessee herein (other than as to
payment of money) and any such default shall continue for a period of thirty
(30) days after written notice to Lessee, or if Lessee shall file a voluntary
petition in bankruptcy, or if Lessee shall file any petition or institute any
proceedings under any Insolvency or Bankruptcy Act or any amendment thereto
hereafter made, seeking to effect its
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46
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 Tower Space, or if any
proceedings shall be commenced for the reorganization of Lessee (which, in the
case of involuntary proceedings, are not dismissed or stayed within 30 days of
the commencement thereof), or if the leasehold estate created hereby shall be
taken on execution or by any process of law, or if Lessee shall admit in
writing its inability to pay its obligations generally as they become due, then
Lessor may, at its option, terminate this Lease without notice, and declare all
amounts due or to become due hereunder immediately due and payable, and
Lessor's agents and servants may immediately, or any time thereafter, reenter
the Tower Space by reasonably necessary force, summary proceedings, or
otherwise, and remove all persons and properly therein, without being liable to
indictment, prosecution, or damage therefor, and Lessee hereby expressly waives
the service of any notice in writing of intention to reenter said Tower Space.
Lessor may, in addition to any other remedy provided by law or permitted
herein, at its option, relet the Tower Space (or any part thereof) on behalf of
Lessee, applying any monies collected first to the payment of expenses of
resuming or obtaining possession, and, second, to the payment of the costs of
placing the premises in rentable condition, including any leasing commission,
and, third, to the payment of rent due hereunder, and any other damages due to
the Lessor. Any surplus remaining thereafter shall be paid to Lessee, and
Lessee shall remain liable for any deficiency in rental, the amount of which
deficiency shall be paid upon demand therefor to Lessor.
(b) Should Lessor re-enter and terminate
according to the provisions of this subparagraph, Lessor may remove and store
the Lessee's Property at the expense and for the account of Lessee.
Alternatively, Lessor may sell, or cause to be sold, Lessee's Property at
public sale to the highest bidder for cash, and remove from the proceeds of
such sale any rent or other payment then due Lessor under this Lease. Any
disposition of the Lessee's Property pursuant thereto shall be subject to the
rights of any lender to Lessee holding a mortgage on Lessee's Property and
shall be made in a manner that is commercially reasonable within the meaning of
the Uniform Commercial Code as in effect in the State of Florida at the time of
such disposition.
19. INDEMNIFICATION.
(a) Each party warrants and represents that it
has the authority to enter into this Lease and to grant the rights it grants
hereunder, and that performance of its obligations pursuant to this Lease will
not violate the rights of any third party whatsoever. Lessee agrees to indemnify
and defend Lessor against any claim for damages, losses, liabilities, costs, or
expenses, including reasonable attorney's fees, arising (a) out of any breach by
Lessee of its warranties, representations, or covenants under this Lease; (b)
out of the use, management, or occupancy of the Tower Space by Lessee, its
agents, or invitees; (c) out of any omissions, negligence or willful misconduct
of Lessee, its agents, servants, employees, licensees, or invitees; (d) out of
failure of Lessee to comply with any laws, statutes, ordinances, or regulations;
(e) out of Lessee's failure to maintain equipment in proper working order; and
(f) out of Lessee's failure to comply with any of its other obligations under
the terms of this Lease.
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(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 Tower Space by Lessor, its agents, or
invitees; (c) out of any omissions, negligence or willful misconduct of Lessor,
its agents, servants, employees, licensees, or invitees; (d) out of failure of
Lessor to comply with any laws, statutes, ordinances, or regulations; (e) out of
Lessor's failure to maintain equipment in proper working order; and (f) out of
Lessor's failure to comply with any of its other obligations under the terms of
this Lease.
(c) Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other party ("Indemnifying Party")
reasonably prompt notice of known claims giving rise to any claim for indemnity,
and the Indemnifying Party shall have the right and opportunity to undertake the
legal defense of such claims. The Indemnified Party and its counsel may
nevertheless participate in (but not control) such proceedings, negotiations, or
defense at its own expense. In all such cases, the Indemnified Party will give
all reasonable assistance to the Indemnifying Party, including making the
Indemnified Party's employees and documents available as reasonably requested
without charge.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 ESTOPPEL CERTIFICATE. Within ten (10) days after
either party's request, the other party shall deliver, executed in recordable
form, a declaration to any person designated by the requesting party (a)
ratifying this Lease; (b) stating the commencement and termination dates; and
(c) certifying (i) that this Lease is in full force and effect, and has not been
assigned, modified, supplemented, or amended (except by such writings as shall
be stated); (ii) that all conditions under this Lease to be performed have been
satisfied (stating exceptions, if any); (iii) that no defenses or offsets
against the enforcement of this Lease by the requesting party exist (or stating
those claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which
rent has been paid; (vi) the amount of security deposited with Lessor (if
hereafter applicable for any reason); and (vii) such other information as the
requesting party reasonably requires. Persons receiving such statements shall be
entitled to rely upon them.
20.02 ATTORNMENT. Lessee shall, in the event of a sale or
assignment of Lessor's interest in any of the Tower Space, or, if any of the
Tower Space comes into the hands of any Trustee under a Deed of Trust or a
mortgagee or any other person, whether because of a foreclosure, exercise of a
power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the
purchaser or such mortgagee, Trustee, or other person, and recognize the same as
Landlord hereunder. Lessee shall execute at Lessor's request any attornment
agreement reasonably required by any mortgagee, Trustee, or other such person to
be executed containing such provisions as such mortgagee, Trustee, or other
person reasonably requires, provided, however, that such attornment shall not
modify the terms of this Lease.
20.03 FAILURE TO EXECUTE INSTRUMENTS. Either party's
failure, without good and reasonable cause, to execute instruments or
certificates provided for in this Paragraph
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20, within fifteen (15) days after the receipt by such party of a written
request, shall be a default under his Lease.
21. MISCELLANEOUS.
21.01 RELATIONSHIP OF PARTIES. Nothing contained herein and
no acts of the parties herein shall be deemed or construed as creating any
relationship between the parties hereto other than the relationship of Lessor
and Lessee or Landlord and Tenant.
21.02 GOVERNING LAW. This Lease shall be governed and
construed and enforced in accordance with the laws of the State of Florida.
21.03 CAPTIONS. The captions contained in this Lease are
included solely for convenience and shall in no event affect or be used in
connection with the interpretation of this Lease.
21.04 AMENDMENTS. This Lease only may be amended or
modified as may be agreed upon by written instrument executed by the parties
hereto.
21.05 INTEREST AND ATTORNEY'S FEES. All sums becoming due
or payable under this Lease, including all money expended pursuant to the
provisions hereof or on account of any default in the performance and observance
of any agreements or covenants herein, shall bear interest at the rate of eight
and one-half percent (8.5%) per annum (or at such lesser rate which is the
maximum permitted by applicable law) from thirty (30) days after the date such
sums become due or payable, or, in the event one of the parties expends money
because of a default by the other, from thirty (30) days after the date the
defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
21.06 BROKERS AND THIRD PARTIES. Each party represents that
it has not had dealings with any real estate broker or other person who may
claim a commission or finder's fee with respect to this Lease in any manner.
Each party shall hold harmless the other party from all damages resulting from
any claims that may be asserted against the Indemnified Party by any broker,
finder, or other person with whom the Indemnifying Party has or purportedly has
dealt.
21.07 NOTICES. Notices given pursuant to this Lease shall
be in writing and shall be given by actual delivery or by mailing the same to
the party entitled thereto at the addresses set forth below or at any such other
address as any Party may designate in writing to any other Party pursuant to the
provisions of this paragraph. Notice given by mail shall be sent by United
States mail, certified or registered, return receipt requested or by nationally
recognized courier serviced providing receipt of delivery. Notices shall be
deemed to be received on the date of actual receipt, in the case of personal
delivery, or on the date of mailing, in the case of mailing. Notices shall be
served or mailed to the following addresses, subject to change as provided
above:
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49
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
21.08 WAIVER. It is agreed that the waiving of any of the
covenants of this Lease by either party shall be limited to the particular
instance, and shall not be deemed to waive any other breaches of such covenant
or any provision herein contained.
21.09 ACCORD AND SATISFACTION. No receipt of money by
Lessor after the termination of this Lease or after the service of any notice or
after the commencement of any suit reinstates, continues, or extends the term of
this Lease or affects any such notice or suit.
21.10 LIMITATION OF LIABILITY. Except as otherwise expressly
stated herein, Lessor shall not be liable or responsible to the Lessee or to
anyone claiming under or through the Lessee for any loss or damage caused by the
acts or omissions of any other tenants or any other users of the Tower, or Tower
Site, or for any loss or damage to Lessee's Property caused by fire, water,
bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials
falling from the Tower, or the malfunction of any utility, facility, or
installation, or by reason of any other existing condition or defect in the
Tower Space; 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
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of the Tower and Tower Site, or any other broadcasters. Except for Lessor's own
negligent acts, willful misconduct or for breaches of its obligations under
this Agreement, Lessor shall not be liable to Lessee, or to any other person
for property damage or personal injury, including death. Lessor shall not be
liable under any circumstances for loss of use, loss of sponsorship or
advertising revenue, or any other consequential damages sustained by Lessee.
21.11 PARTIAL INVALIDITY. The invalidity of any provision,
clause, or phrase contained in this Lease shall not serve to render the balance
of this Lease ineffective or void; and the same shall be construed as if such
had not been herein set forth.
21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of any
documentary stamps occasioned by this Lease should it wish to record this Lease.
21.13 RULES AND REGULATIONS. Lessor may from time to time
issue such rules and regulations in writing which it may consider necessary and
desirable. Lessee agrees to abide by such rules and regulations so long as they
do not unreasonably interfere with Lessee's use and occupancy of the Tower Space
or conflict with this Lease.
21.14 FORCE MAJEURE. Lessor assumes no responsibility for
any losses or damages to Lessee's Property caused by acts of God, including, but
not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water,
or by aircraft or vehicle damage. Lessor furthermore assumes no responsibility
for losses or damages to Lessee's Property caused by any person other than
employees and agents of Lessor. In the event that Lessor shall be delayed,
hindered in or prevented from the performance of any act required hereunder by
reason of acts of God (including, but not limited to, wind, lightning, rain,
ice, earthquake, flood, or rising water), aircraft or vehicle damage or other
casualty, unforeseen soil conditions, acts of third parties who are not
employees of Lessor, strikes, lock-outs, labor troubles, inability to procure
material, failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of delay and the period for performance
of any such act shall be extended for a period equivalent to the period of such
delay.
21.15 ENTIRE AGREEMENT. This Lease, together with its
Exhibits, constitutes and sets forth the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersedes all prior
or contemporaneous offers, negotiations, and agreements (whether oral or
written) between the parties (or any of their related entities) concerning the
subject matter of this Lease.
21.16 COUNTERPARTS AND DUPLICATES. This Lease may be
executed in counterparts, which, when combined, shall constitute a single
instrument. The Lease may also be executed in duplicate editions, each of which
shall be effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: ` LESSOR:
XXXXXXX FAMILY TOWERS, INC.
By: (SEAL)
-------------------------------- --------------------------------------
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX XX ACQUISITION CORP.
By: (SEAL)
-------------------------------- --------------------------------------
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A
DESCRIPTION OF THE TOWER SITE
WRXK-FM
All of that Tract or Parcel of land lying and being in the East half (E1/2) of
the Northwest Quarter (NW 1/4) of Section 28, Township 46 South, Range 25 East,
Xxx County, Florida, and being more particularly described as follows:
Commencing at the Northeast corner of the Northwest Quarter (NW 1/4) of said
Section 28, run North 89 degrees 12'00" West along the North line of Section 28
for a distance of 256.67 feet to a concrete monument at the point of beginning;
said corner lying on the Northwesterly right-of-way line of a 40 foot roadway
easement; thence South 30 degrees 34'30" West along the Northwesterly line of
said 00 xxxx xxxxxxx easement 615.00 feet; thence North 29 degrees 18'45" West,
617.09 feet to the North line of said Section; thence South 89 degrees 18'00"
East along said Section line 615.00 feet to the Norhwesterly line of said 40
foot roadway easement and the point of beginning.
Together with the rights, privileges and the use of the following described 00
xxxx xxxxxxx easement.
Commencing at the Northeast corner of the Northwest Quarter (NW 1/4) of Section
28, Township 46 South, Range 25 East, run North 89 degrees 12'00" West along the
North line of said Section, 210.59 feet to the Southeasterly line of a 40 foot
roadway easement and the point of beginning; thence run South 30 degrees 34'30"
West along the Southeasterly line of said roadway easement 1038.0 feet to the
Northeasterly right-of-way line of U. S. #41 (State Road #45) new alignment;
thence North 56 degrees 02'00" West along said right-of-way line 40.07 feet to
the Northwesterly line of said 00 xxxx xxxxxxx easement; thence North 30 degrees
34'30" East along said Easement line 1012.75 feet to the North line of Section
28 of said Township and range; thence South 89 degrees 12'00" East along said
Section line 46.08 feet to the Southeasterly line of said 40 foot roadway
easement and the point of beginning.
Description of Ingress-Egress and Utility Easement Area:
A portion of lands described in official records Book 1238, Page 1903, lying in
the East 1/2 of the Northwest 1/4 of Section 28, Township 46 South, Range 25
East, Xxx County, Florida, and being more particularly described as follows:
Commence at the Northeast corner of the Northwest 1/4 of said Section 28,
proceed North 89 degrees 12'00" West along the North line of Section 28 a
distance of 256.67 feet; thence South 30 degrees 34'05" West along the Westerly
right-of-way line of a 40 foot roadway easement (as described in O.R.B. 1238,
Page 1903, Xxx County, Florida) a distance of 527.48 feet to the point of
beginning; thence continue South 30 degrees 34'05" West along said right-of-way
line a distance of 20.33 feet; thence North 49 degrees 03'31" West a distance
of 38.58 feet; thence North 35 degrees 36'36" West a distance of 125.83 feet;
thence North 11 degrees 49'52 West a distance of 119.12 feet; thence North
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53
23 degrees 07'25" East a distance of 76.27 feet: thence North 52 degrees 56'39"
East a distance of 89.87 feet; thence South 56 degrees 49'08" East a distance of
57.04 feet; thence South 33 degrees 18'52" West a distance of 20.00 feet; thence
North 56 degrees 49'08" West a distance of 42.93 feet; thence South 52 degrees
56'39" West a distance of 70.48 feet; thence South 23 degrees 07'25" West a
distance of 64.64 feet; thence South 11 degrees 49'52" East a distance of 108.61
feet; thence South 35 degrees 36'36" East a distance of 119.26 feet; thence
South 49 degrees 03'31" East a distance of 32.56 feet to the point of beginning.
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EXHIBIT B
WRXK-FM
That certain five hundred (500) foot communications tower situated on a tract
of land more particularly described as follows:
All of that Tract or Parcel of land lying and being in the East half (E 1/2) of
the Northwest Quarter (NW 1/4) of Section 28, Township 46 South, Range 25 East,
Xxx County, Florida, and being more particularly described as follows:
Commencing at the Northeast corner of the Northwest Quarter (NW 1/4) of said
Section 28, run North 89 degrees 12'00" West along the North line of Section 28
for a distance of 256.67 feet to a concrete monument at the point of beginning;
said corner lying on the Northwesterly right-of-way line of a 40 foot roadway
easement; thence South 30 degrees 34'30" West along the Northwesterly line of
said 00 xxxx xxxxxxx easement 615.00 feet; thence North 29 degrees 18'45" West,
617.09 feet to the North line of said Section; thence South 89 degrees 18'00"
East along said Section line 615.00 feet to the Norhwesterly line of said 40
foot roadway easement and the point of beginning.
Together with the rights, privileges and the use of the following described 00
xxxx xxxxxxx easement.
Commencing at the Northeast corner of the Northwest Quarter (NW 1/4) of Section
28, Township 46 South, Range 25 East, run North 89 degrees 12'00" West along the
North line of said Section, 210.59 feet to the Southeasterly line of a 40 foot
roadway easement and the point of beginning; thence run South 30 degrees 34'30"
West along the Southeasterly line of said roadway easement 1038.0 feet to the
Northeasterly right-of-way line of U. S. #41 (State Road #45) new alignment;
thence North 56 degrees 02'00" West along said right-of-way line 40.07 feet to
the Northwesterly line of said 00 xxxx xxxxxxx easement; thence North 30 degrees
34'30" East along said Easement line 1012.75 feet to the North line of Section
28 of said Township and range; thence South 89 degrees 12'00" East along said
Section line 46.08 feet to the Southeasterly line of said 40 foot roadway
easement and the point of beginning.
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EXHIBIT C
DESCRIPTION OF TOWER SPACE
22
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EXHIBIT D
DESCRIPTION OF TOWER SPACE
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LEASE AGREEMENT (O&L - WZFX-FM)
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower as such tower is described
on Exhibit B attached hereto ("Tower"), on a certain tract of real estate
located at Whiteville, North Carolina, as such land is more fully described in
Exhibit A attached hereto (hereinafter referred to as the "Tower Site"; the
term "Tower Site" shall also include any appurtenant easements on such land);
WHEREAS, Lessor desires to lease the space on the Tower for the
purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such space from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 COMMENCEMENT OF TERM. The term of this Lease and the
payment of rent and other performances in accordance with the terms of this
Lease shall commence on the date hereof.
1.02 EXHIBITS. All Exhibits referred to in this Lease are
incorporated herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 TOWER SPACE. Lessor hereby leases to Lessee, and
Lessee leases from Lessor, space on the Tower, as such space is described on
Exhibit C attached hereto, for the purposes of the broadcast transmission of
WZFX-FM, Whiteville, North Carolina (the "Tower Space").
2.02 OWNERSHIP OF PROPERTY; ACCESS.
(a) Except as otherwise provided for herein
below as "Lessee's Property" (as defined below), all tenant improvements
including all fixtures and trade fixtures shall become the property of the
Lessor, and shall remain with the Tower Space after the Lessee vacates same.
58
(b) The Lessee's antenna, transmission line, and
other equipment, together with any replacements thereof and modifications and
additions thereto, which are permitted hereunder, shall be and remain Lessee's
Property, and are hereinafter referred to as "Lessee's Property". Lessee will
be solely responsible for the maintenance of Lessee's Property, including all
expenses associated with such repair.
(c) Lessee shall have reasonable right of access
to the Tower Space at all times in emergency situations and whenever reasonably
necessary for equipment maintenance and repair. Lessee shall also have
reasonable rights of access at any time to the Tower Space for ingress, egress,
utilities, the locating and usage of cabling and related equipment, operations,
maintenance, repair or remodeling, or other engineering purposes.
3. PERMITTED USES.
3.01 BY LESSEE.
(a) Subject to all appropriate government
approvals, including the Federal Communications Commission ("FCC"), the Tower
Space may be used only for activities related to the operation of radio
broadcast stations. Such operations, shall be conducted in accordance with the
standards imposed by the FCC and any other governmental body with authority
over such transmission and operations.
(b) Except as expressly permitted by this Lease
and unless prior written approval of Lessor has been given, Lessee shall not
construct or make any improvements or install any equipment on the Tower.
Lessee may repair and maintain equipment as it deems necessary to its
operations within Lessee's space in all respects in compliance with the terms
hereof. The Tower Space, Lessee's interior and exterior equipment, and all
other improvements shall be maintained in an orderly and professional manner.
3.02 BY LESSOR.
(a) Subject to the rights elsewhere granted to
Lessee in this Lease and with prior notice to Lessee and no loss of service or
interruption (beyond a temporary, non-recurring and de minimis amount), Lessor
reserves the right to use the Tower, at its own expense, as it sees fit and to
fasten additional equipment to the Tower for any purpose, including the right
to install transmitting and/or receiving antennas of others; provided that
Lessor shall use reasonable efforts to restrict any loss of Lessee's service or
interruption pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00
a.m.
(b) Subject to the rights elsewhere granted to
Lessee in this Lease, Lessor shall have the right to use for itself or lease to
others the remainder of the Tower Site or use of any of the improvements
thereon, space 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
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59
structural analysis of the Tower to be conducted by a reputable mechanical
consultant chosen by Lessor in order to ensure that any such additions conform
to recognized engineering standards.
(c) Except as expressly provided for herein,
Lessor shall have no liability for any action or omission taken in exercise of
its rights hereunder upon reasonable reliance on recommendation of its
engineering personnel.
(d) Subject to the terms of this Lease, Lessor
also reserves the right to erect one (1) or more additional towers on the Tower
Site.
4. TERM.
4.01 TERM. This Lease shall have a term of twenty (20)
years from the Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 RENTAL. Lessee shall pay rent for each consecutive
twelve-month period beginning on the Commencement Date (each a "Lease Year")
during the term of this Lease. Such rental payment shall be payable in equal
and successive monthly installments in advance beginning with the Commencement
Date and continuing thereafter on the first day of each month during the term
of this Lease, such rental payments to be made according to the following
schedule:
--------------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
--------------------------------------------------------------------------
1 $21,422.16 $1,785.18
--------------------------------------------------------------------------
2 $21,422.16 $1,785.18
--------------------------------------------------------------------------
3 $21,422.16 $1,785.18
--------------------------------------------------------------------------
4 $21,422.16 $1,785.18
--------------------------------------------------------------------------
5 $21,422.16 $1,785.18
--------------------------------------------------------------------------
6 $21,422.16 $1,785.18
--------------------------------------------------------------------------
7 $21,422.16 $1,785.18
--------------------------------------------------------------------------
8 $21,422.16 $1,785.18
--------------------------------------------------------------------------
9 $21,422.16 $1,785.18
--------------------------------------------------------------------------
10 $21,422.16 $1,785.18
--------------------------------------------------------------------------
11 $21,422.16 $1,785.18
--------------------------------------------------------------------------
12 $21,422.16 $1,785.18
--------------------------------------------------------------------------
13 $21,422.16 $1,785.18
--------------------------------------------------------------------------
14 $21,422.16 $1,785.18
--------------------------------------------------------------------------
15 $21,422.16 $1,785.18
--------------------------------------------------------------------------
16 $21,422.16 $1,785.18
--------------------------------------------------------------------------
17 $21,422.16 $1,785.18
--------------------------------------------------------------------------
18 $21,422.16 $1,785.18
--------------------------------------------------------------------------
19 $21,422.16 $1,785.18
--------------------------------------------------------------------------
20 $21,422.16 $1,785.18
--------------------------------------------------------------------------
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60
5.02 PAYMENT OF RENTALS. Rentals to be paid hereunder
shall be paid monthly in lawful money of the United States of America and shall
be paid in advance on the first day of each month during the term of this Lease
by crediting the payment owed to Lessee by Lessor under that certain Promissory
Note made by Lessor in favor of Lessee dated _______, 2000, on the first day of
each month during the term of this Lease. In the event of prepayment of the
Promissory Note by Lessor or other action resulting in amounts equal to any
monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may in
writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
5.03 ELECTRICITY AND OTHER UTILITIES. In addition to the
payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its
own telephone lines and service, electrical service (including electrical
service to the Tower used by Lessee as measured by a separate electrical meter
at Lessee's expense). Lessor shall pay for the electrical service to the Tower
for the Tower lighting.
6. AUTHORITY.
6.01 QUIET ENJOYMENT. Lessor represents and warrants that
it has the full power and authority to enter into this Lease, and covenants and
agrees that Lessee, upon paying the rents described herein and observing and
keeping the covenants, agreements, and stipulations of this Lease on Lessee's
part to be observed and kept, shall lawfully, peaceably, and quietly hold,
occupy, and enjoy the Tower Space, and all other rights and privileges granted
herein, without hindrance, eviction, or molestation by Lessor or any party
claiming by or through Lessor.
6.02 LESSEE'S APPROVAL. Lessee represents and warrants
that it has the full power and authority to enter into and perform this Lease.
Any and all necessary corporate resolutions, encumbrance certificates, etc.,
shall be supplied by Lessee upon the request of Lessor.
7. PERMITS.
7.01 PERMITS. Lessor shall obtain all necessary licenses
or permits in connection with the Tower Space except that Lessee shall obtain,
at its own expense, any and all necessary licenses or permits from such
governmental authorities as shall have jurisdiction in connection with the (b)
the operations, installation, repair, alteration, or replacement of Lessee's
equipment (including, without limitation, Lessee's antenna and transmission
and/or receiving equipment); or (c) with any of Lessee's activities thereon or
contemplated by this Lease. At Lessor's request, Lessee shall furnish Lessor
with copies of same, and shall abide by the terms and provisions of such
licenses and permits.
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8. MAINTENANCE OF TOWER SPACE AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
(a) Lessee, at its own cost and expense, shall
maintain and repair Lessee's Property, including specifically its antenna,
related equipment, transmission lines, transmitters, and other equipment.
Lessor shall perform the same tasks with respect to the Tower. All such
maintenance shall be conducted by the parties in accordance with good
engineering standards and in conformity with the requirements of the FCC or any
other body having jurisdiction over the Lessee and its property, including,
without limitation, any rules, regulations, or guidelines of the FCC
implementing the National Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of Lessor and Lessee shall
take all reasonable precautions to avoid interference or hindrance to and with
the operations of the other party hereto. In this regard, each party hereto
agrees to eliminate, without cost to the other party hereto, any interference
or hindrance to such other party's operation. Maintenance and repair of
Lessee's Property shall be performed only by a reputable contractor and in
accordance with the provisions of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's
Property during normal business hours upon reasonable notice to Lessee, except
that, in the event of an emergency, as determined by Lessor, Lessor may enter
at any time, giving notice of such emergency to Lessee as soon as is practical.
In the event that Lessor reasonably determines that Lessee has not maintained
Lessee's Property and equipment in good order and repair according to industry
standards, and that such repairs are necessary for the safety of the Tower or
the Tower Site, or the prevention of interference with Lessor or any other user
of the Tower or any other broadcaster, Lessor may, at its option, make such
emergency repairs to the property as it deems reasonably necessary, and any
amount expended by Lessor therefor shall be reimbursed to it by Lessee
immediately upon presentation of a statement and shall be deemed additional
rent. Lessor shall not be liable for inconvenience, disturbance, loss of
business, or other damage to Lessee by reason of repairing any of Lessee's
Property which Lessee has failed to properly maintain.
(c) With respect to the non-emergency repairs
which Lessor, in its reasonable discretion, determines that Lessee should make
to maintain Lessee's Property and equipment in good order, and that such
repairs are necessary for the safety of the Tower or the Tower Site, or the
prevention of interference with Lessor, in violation of the terms of this
Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance
and repairs required to be performed by Lessee. In the event that, within ten
(10) business days following such written notice (or such longer period as may
be reasonably necessary taking into account all facts and circumstances),
Lessee shall not have performed such maintenance and repairs, Lessor may, at
its sole option, make such repairs as it deems reasonably necessary, and any
amount expended by Lessor therefor shall be deemed additional rent. Lessor
shall not be liable for inconvenience, disturbance, loss of business, or other
damage to Lessee by reason of repairing the property and equipment of Lessee
which Lessee has failed to properly maintain.
(d) No work (including electrical work), except
for emergency repairs that Lessee shall perform to return to, or maintain the
station on air in the event of a
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failure, will be performed by the Lessee in connection with the installation,
alteration, maintenance, repair, or removal of any of Lessee's transmission
lines, antenna, and other equipment on the Tower unless the Lessee submits to
Lessor a copy of the proposed contract and also detailed plans and
specifications of the work to be done, and both the contract and the plans and
specifications have been approved in writing by Lessor not to be unreasonably
withheld, delayed or conditioned. Lessee, upon demand therefor by Lessor,
agrees to pay Lessor as additional rent all amounts reasonably expended by
Lessor in connection with review of any such contract, plans, and
specifications.
(e) With respect to any work to be performed by
or on behalf of Lessee in connection with the installation, alteration,
maintenance, repair, or removal of any equipment on the Tower (including any
ascension of the Tower), or in or about the Tower Site. Lessee may only employ
a contractor who has been approved in writing and in advance by Lessor. Lessor
agrees that it will not unreasonably withhold its approval of any contractor
who has the requisite experience and industry standard insurance coverage and
who will, at the sole option of Lessor, provide a bond to cover any work which
it has been retained to perform. Lessor agrees to consult on call in any
emergency situation and immediately give its approval or disapproval.
(f) All work by or on behalf of the Lessee or
Lessor shall be carried out (i) in a good and workmanlike manner; (ii) in
accordance with established engineering standards and public ordinances, rules,
and regulations applicable to such work, including, without limitation, any
rules, regulations, or guidelines of the FCC implementing the National
Environmental Policy Act of 1969, pertaining to electromagnetic or radio
frequency radiation; (iii) in accordance with plans and specifications,
including mechanical and electrical drawings, which have been submitted to and
approved in writing and in advance by Lessor; and (iv) in accordance with
Lessor's security procedures with respect to protection of the Tower Site.
(g) Notwithstanding the receipt of the approvals
by Lessor as required in this paragraph, Lessee shall not be relieved of its
responsibilities and liabilities for interference or otherwise as herein
provided, nor shall said approval be deemed a waiver of any other rights of
Lessor under this Lease.
(h) In the event that any notice of lien or lien
shall be filed against any part of the Tower Site for work claimed to have been
done or materials claimed to have been furnished to Lessee, the same shall be
dismissed, withdrawn, discharged or bonded (to Lessor's reasonable
satisfaction) by Lessee within thirty (30) days thereafter at Lessee's expense;
and if Lessee shall fail to take such action as shall cause such lien to be
discharged within thirty (30) days, Lessor may, at its option, discharge the
same by deposit or by bonding proceedings. Lessor may require the lienor to
prosecute the appropriate action to enforce the lienor's claim. In such case,
Lessor shall give immediate notice to Lessee of such pending action or
proceeding so that Lessee may have an opportunity to legally contest or defend
the action or proceeding. If, after such notice to Lessee, a judgment is
recovered on the claim, Lessor, at its sole option, may pay the judgment. Any
reasonable amount paid or expense incurred or sum of money paid by Lessor
(including reasonable attorney's fees) by reason of the failure of Lessee to
comply with the
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foregoing provisions of this paragraph, or in defending any such action, shall
be paid to Lessor by Lessee, and shall be treated as additional rent hereunder.
8.02 AT EXPIRATION OR TERMINATION. At the expiration or
termination of this Lease, Lessee shall promptly surrender possession of the
Tower Space to Lessor in as good a condition as the same were received at the
commencement of the term, reasonable wear and tear and damage by fire or other
casualty beyond Lessee's reasonable control excepted.
9. MAINTENANCE OF TOWER.
9.01 MAINTENANCE OF TOWER.
(a) Lessor shall maintain the Tower in good
repair. Lessee shall comply with any security policies reasonably established
from time to time by Lessor.
(b) Lessor assumes the obligation and
responsibility for complying with the requirements of the FCC regarding
obstruction, marking and lighting of the Tower. Lessor shall maintain the Tower
and support systems in good repair and in good operating condition in
accordance with the requirements of governmental authorities.
(c) In the event that Lessor determines that
repairs, alterations, or improvements are necessary or desirable to the Tower
or the leased spaces of other tenants, Lessor may, upon reasonable notice and
for the shortest practical period of time (except for emergency situations),
close entrance doors, common areas, drive-ways, rights-of-way, service areas,
parking areas, or any other facilities at its discretion without being liable
to Lessee; provided that if any of the above would restrict Lessee's ability to
broadcast, Lessor shall use reasonable efforts to restrict any closure or
interruption pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00
a.m.. The closing of entrances, doors, common areas, parking areas, or other
facilities for the making of the repairs, alterations, or improvements
described herein shall, under no circumstances, constitute an eviction of the
Lessee or be grounds for termination of this Lease or the withholding of any
rental payments or other payments or performances required to be paid or made
by Lessee under the terms hereof, provided, Lessor shall use reasonable efforts
to ensure that any action taken in accordance with this paragraph shall not
adversely affect the rights of Lessee hereunder. Under no such circumstances
shall Lessee be entitled to terminate this Lease nor shall it be entitled to
compensation for any loss or damage it may sustain (including loss of use, loss
of advertising/sponsorship revenues, and consequential damages) by reason of
such changes or alterations.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own
expense, to make such changes and alterations in the Lessee's Property situated
on the Tower, subject to Paragraph 8.01 and Paragraph 11 hereof, as its
operations may require, including the renovation, replacement, or removal of
its antenna; provided, however, that such changes or alterations conform with
recognized engineering standards and, if necessary, have been approved by the
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FCC and any other authority having jurisdiction over Lessee; and provided
further, that plans and specifications are first submitted to and approved in
writing by Lessor. Lessee shall make no changes in the equipment or equipment
position without such approval, and Lessor shall not unreasonably fail to give
such approval within ten (10) business days.
(b) This Lease is based upon carefully computed
tower loading capacity. If any change proposed by Lessee in the type, location,
or positioning of Lessee's Property should, in Lessor's judgment, require a
computer or other type of feasibility study to determine Tower loading
capacity, such study shall be performed by an engineer chosen by Lessor, and
approved by Lessee (such approval not to be unreasonably withheld, delayed or
conditioned) whose decision shall be final and binding upon both parties. The
cost of such study or any other costs reasonably incurred by Lessor in
determining the feasibility of any proposed change or alteration in the type,
location, or positioning of Lessee's Property shall be borne entirely by
Lessee.
11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation in the Tower Space 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.
11.02 INTERFERENCE WITH LESSOR, LESSEE, OR OTHERS.
Notwithstanding the provisions of Paragraph 11.01, should any change, after the
date hereof, in the facilities or mode of operation of Lessee or Lessee's
failure to comply with the Maintenance Standards, as defined in Paragraph
11.04, cause any objectionable electrical or physical interference (including
interference from any other structure erected on the Tower Site) to the
television and/or radio broadcasting and/or receiving operations of any other
lessee, then, promptly after written notification of such interference, the
Lessee, at its sole expense, will take such steps as may be reasonably required
to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filters or other equipment, provided that, if such interference is caused,
after the date hereof, by the failure of the Lessor or any other lessee
suffering the interference to comply with the Maintenance Standards, as defined
in Paragraph 11.04, then Lessor shall, or shall cause the other lessee
suffering the interference, at its sole expense, to comply with such
Maintenance Standards. Any dispute as to the cause of interference, or the
steps reasonably required to correct it, arising under this
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Paragraph 11.02, shall be submitted to an independent professional engineer
chosen by Lessor, and such engineer's decision shall be final and binding upon
the parties. If such interference is found to be caused by such changed
facilities or operation, the fees and charges of the engineer to whom the
dispute is referred shall be borne by the party whose changed facilities or
mode of operations gave rise to the claimed interference. If such interference
is found not to be caused by such changed facilities or operations, the fees
and charges of the engineer to whom the dispute is referred shall be borne by
the objecting party. All other leases and/or agreements to lease space at the
Tower Site shall contain this language.
11.03 INTERFERENCE BY OTHER USER. Any subsequent agreement
under which Lessor allows any other person to occupy any portion of the Tower
shall provide that, should the installation, operation, or maintenance of the
equipment or the activities of such other person cause any objectionable
interference with the operations of Lessor or Lessee, then, promptly after
written notification of such, such other tenant or user, at its sole expense,
will take such steps as may be reasonably necessary to correct such
interference, including, but not limited to, changing frequency, ceasing
transmission, reducing power, and/or the installation of any filter or other
equipment, provided that if such interference is caused by the failure of any
other lessee to comply with the Maintenance Standards, as defined in Paragraph
11.04, such other lessee will, at its sole expense, comply with such Maintenance
Standards. To the best of its ability, Lessor shall not permit any operations by
other tenants, the effect of which would be to prohibit Lessee from operating in
the manner contemplated herein, without the prior written consent of Lessee.
Lessor shall have no liability for any action or omission taken upon reasonable
reliance on the recommendation of qualified engineering personnel. Lessor agrees
that it will take commercially reasonable efforts to ensure that the
installation, operation or maintenance of its equipment which is installed after
the commencement date of this Lease on, in or around the Tower shall not cause
any objectionable interference with the operations of Lessee. Immediately upon
notification of such interference by Lessee, Lessor shall at its sole expense
take such steps as may be reasonably necessary to correct such interference,
including, but not limited to, changing frequency, ceasing transmission,
reducing power, and/or the installation of any filter or other equipment.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the
purposes of this Lease, compliance with "Maintenance Standards" shall mean that
a tenant or user of the Tower shall (a) maintain and operate its equipment in
accordance with the requirements, rules, regulations, and guidelines of the FCC,
and the standards of manufacturers of the equipment; and (b) maintain and
operate its equipment in accordance with good engineering practice.
12. UTILITIES.
12.01 UTILITIES. Subject to the required approvals and
cooperation of any governmental authority or public utilities, Lessee shall
arrange and be responsible for the installation and provision of electrical and
telephone lines serving Lessee's Property at any building on the Tower Site
owned by Lessor. Lessee shall be responsible for procurement of and payment for
all telephone services as described in Paragraph 5.03 and used by Lessee.
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13. TAXES.
13.01 PAYMENT OF TAXES. Lessee shall pay all real estate
taxes, assessments, or levies assessed or imposed against the Tower Site
(including the Tower Space), and all taxes which may be assessed against the
Tower and any buildings thereon. [Foregoing obligation is subject to $200,000
12-month limit when aggregated with other borrowers under Credit Agreement per
1.5D of First Amendment to Credit Agreement]. Lessee shall pay all personal
property or other taxes assessed or imposed on Lessee's Property, and shall
cooperate with Lessor to ensure that such property is properly separated from
that of Lessor or other tenants for assessment purposes.
14. INSURANCE.
14.01 PUBLIC LIABILITY. Lessee shall procure and maintain
comprehensive public liability insurance, naming Lessor as an additional insured
as its interests shall appear, covering all of the Lessee's operations and
activities on the Tower Space, including but not limited to, the operations of
contractors and subcontractors and the operation of vehicles and equipment
(including the Tower elevator), with limits of liability for the term of this
Lease of not less than Five Million Dollars ($5,000,000.00) in the aggregate for
personal injury or death in any occurrence and not less than Five Million
Dollars ($5,000,000.00) to cover property damage, with a liability umbrella of
not less than One Million Dollars ($1,000,000.00). Certificates evidencing such
insurance shall be furnished to Lessor upon its request. The amounts specified
hereunder shall be revised every five (5) years to such amounts as Lessor may
reasonably require upon the advice of its insurance consultants. [Foregoing
obligation is subject to $200,000 12-month limit when aggregated with other
borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement].
14.02 CONTRACTOR LIABILITY. Lessee shall also cause the
contractors erecting, installing, or maintaining Lessee's Property or performing
any other work for Lessee on the Tower Site to procure reasonable public
liability insurance acceptable to Lessor and naming the Lessee and Lessor as
named insureds. Certificates evidencing such insurance shall be furnished to
Lessor in advance of any work being performed.
14.03 TOWER INSURANCE. Lessee shall procure and maintain
physical damage insurance on the Tower in an amount sufficient to repair or
replace the Tower with such coverage to be on an "All Risks" basis, including,
without limitation, coverage for the perils of fire, lightning, windstorm, hall,
flood, earthquake, collapse, explosion, aircraft and vehicle damage, vandalism,
and malicious mischief. [Foregoing obligation is subject to $200,000 12-month
limit when aggregated with other borrowers under Credit Agreement per 1.5D of
First Amendment to Credit Agreement]. Lessee shall be solely responsible for its
insurance on Lessee's Property together with business interruption insurance.
14.04 TOWER DAMAGE. In the event that the Tower is
destroyed or damaged by fire, lightning, windstorm, flood, earthquake,
explosion, collapse, aircraft, or other vehicle damage or other casualty covered
by insurance, Lessor shall promptly reconstruct or repair the Tower to such good
condition as existed before the destruction or damage, and give
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possession to Lessee of substantially the same space leased hereunder. Lessee
shall promptly pay over to Lessor any insurance proceeds it receives from
insurance policies Lessee is required to procure under Section 14.03 hereof for
the purpose of use by Lessor to fund reconstruction of the Tower as required of
Lessor under this Section 14.04. If the Tower is in need of such repair or is
so damaged by fire, lightning, windstorm, flood, earthquake, explosion,
aircraft or other vehicle damage, collapse, or other casualty that
reconstruction or repair cannot reasonably be undertaken without dismantling
Lessee's antenna, then upon written notice to Lessee, Lessor may remove any
such antenna and interrupt the signal activity of Lessee, but will use its best
efforts to have the antenna replaced as soon as reasonably possible. Lessor
agrees to provide Lessee alternative space, if available, on the Tower 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 or (b) replace the Tower within one (1) year if
Lessor has provided the notice described in clause (a) above, of the date of
destruction, or repair the same within such shorter time period after the
casualty as may be reasonable, then Lessee, upon thirty (30) days' written
notice to Lessor, may terminate this Lease, provided if Lessor has provided the
notice described in clause (a) above, Lessee must make such election within one
hundred twenty (120) days prior to the expiration of said repair or replacement
period. Lessee agrees that it shall maintain adequate business interruption
insurance at all times during the term of this Lease to adequately protect it
from any interruption of signal activities due to Tower damage (including costs
of reinstallation of its equipment and lines), and Lessor shall have no
liability on account of such business interruption or reinstallation costs due
to damage or destruction under this paragraph.
15. EMINENT DOMAIN.
(a) In the event that all of the Tower (or any
portion of the Tower necessary for the guy wires, or other appurtenances
necessary to Lessee's broadcasting operations) is acquired or transferred or
condemned pursuant to eminent domain proceedings (or the threat thereof), the
obligation of the parties under this Lease shall be terminated as of the date
of acquisition or transfer. Lessor shall be entitled to the entire condemnation
award. If Lessor determines to build a new tower as a replacement for the Tower
on the condemned property, Lessor agrees to provide space on the new tower
reasonably comparable to the space leased to Lessee pursuant to this Lease on
terms reasonably equivalent to the terms of this Lease.
(b) In the event that this Lease is terminated
due to eminent domain proceedings, then Lessee shall be relieved of any further
obligations to make any rental payments or performances for any period after
the date of such termination of this Lease; and subject to offset or
withholding by Lessor to cover any unpaid additional rent or other authorized
charges which may be owed through the date of termination, Lessee shall be
entitled to a refund of any advance rental sums which it has paid in proportion
to the period of the Lease through such date of termination.
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16. SUCCESSORS AND ASSIGNMENT.
16.01 SUCCESSORS. All rights and liabilities herein given
to or imposed upon the respective parties hereto shall, to the extent that such
are assignable, extend to and bind the several and respective successors and
assigns of the parties hereto.
16.02 ASSIGNMENT. Lessee shall not assign, sublet, or
transfer this Lease or any interest therein, or permit or allow through any act
or default of itself, or of any other person, any transfer thereof by
operations of law or otherwise without the prior written consent of Lessor
except:
(a) Lessee may assign this Lease to any bona
fide third party purchaser of substantially all the assets comprising of
Lessee's radio station broadcasting from the Tower Site, who shall execute an
assignment and assumption agreement in form reasonably acceptable to Lessor;
and
(b) Lessee may assign or transfer all or a
portion of the assets of Lessee, including this Lease, to any corporation
controlling, controlled by, or under common control with, Lessee.
Any assignment or subletting by Lessee except as
permitted herein shall be void and of no effect. Any permitted assignment shall
not relieve Lessee of any of its liabilities hereunder. A change in control of
Lessee, but not the mortgaging by Lessee of its rights hereunder, shall
constitute an assignment of this Lease. Lessor agrees to enter into
documentation reasonably requested by any lender to Lessee in connection with
Lessee's mortgaging of its rights hereunder.
Lessor may assign or transfer this Lease without the
consent of Lessee, but shall notify Lessee following any transfer or assignment.
17. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the
event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not
be deemed fixtures) on the Tower Space within thirty (30) days of such
termination. Such removal shall be conducted in accordance with Paragraph 8.01
hereof Lessee shall promptly repair any and all damage caused by such removal.
Any of Lessee's Property remaining on the Tower Space after the expiration of
the thirty (30) day period shall be deemed to be the property of Lessor, which
Lessor may have removed at Lessee's expense.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(a) If Lessee shall make default in making any
payment herein provided for and any such default shall continue for a period of
ten (10) business days after
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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 Tower
Space, or if any proceedings shall be commenced for the reorganization of
Lessee (which, in the case of involuntary proceedings, are not dismissed or
stayed within 30 days of the commencement thereof), or if the leasehold estate
created hereby shall be taken on execution or by any process of law, or if
Lessee shall admit in writing its inability to pay its obligations generally as
they become due, then Lessor may, at its option, terminate this Lease without
notice, and declare all amounts due or to become due hereunder immediately due
and payable, and Lessor's agents and servants may immediately, or any time
thereafter, reenter the Tower Space by reasonably necessary force, summary
proceedings, or otherwise, and remove all persons and properly therein, without
being liable to indictment, prosecution, or damage therefor, and Lessee hereby
expressly waives the service of any notice in writing of intention to reenter
said Tower Space. Lessor may, in addition to any other remedy provided by law
or permitted herein, at its option, relet the Tower Space (or any part thereof)
on behalf of Lessee, applying any monies collected first to the payment of
expenses of resuming or obtaining possession, and, second, to the payment of
the costs of placing the premises in rentable condition, including any leasing
commission, and, third, to the payment of rent due hereunder, and any other
damages due to the Lessor. Any surplus remaining thereafter shall be paid to
Lessee, and Lessee shall remain liable for any deficiency in rental, the amount
of which deficiency shall be paid upon demand therefor to Lessor.
(b) Should Lessor re-enter and terminate
according to the provisions of this subparagraph, Lessor may remove and store
the Lessee's Property at the expense and for the account of Lessee.
Alternatively, Lessor may sell, or cause to be sold, Lessee's Property at
public sale to the highest bidder for cash, and remove from the proceeds of
such sale any rent or other payment then due Lessor under this Lease. Any
disposition of the Lessee's Property pursuant thereto shall be subject to the
rights of any lender to Lessee holding a mortgage on Lessee's Property and
shall be made in a manner that is commercially reasonable within the meaning of
the Uniform Commercial Code as in effect in the State of North Carolina at the
time of such disposition.
19. INDEMNIFICATION.
(a) Each party warrants and represents that it
has the authority to enter into this Lease and to grant the rights it grants
hereunder, and that performance of its obligations pursuant to this Lease will
not violate the rights of any third party whatsoever. Lessee agrees to
indemnify and defend Lessor against any claim for damages, losses, liabilities,
costs, or expenses, including reasonable attorney's fees, arising (a) out of
any breach by Lessee of its warranties, representations, or covenants under
this Lease; (b) out of the use, management, or occupancy of the Tower Space by
Lessee, its agents, or invitees; (c) out of any omissions, negligence or
willful misconduct of Lessee, its agents, servants, employees, licensees, or
invitees;
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(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 Tower Space by Lessor, its agents, or
invitees; (c) out of any omissions, negligence or willful misconduct of Lessor,
its agents, servants, employees, licensees, or invitees; (d) out of failure of
Lessor to comply with any laws, statutes, ordinances, or regulations; (e) out
of Lessor's failure to maintain equipment in proper working order; and (f) out
of Lessor's failure to comply with any of its other obligations under the terms
of this Lease.
(c) Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other party ("Indemnifying Party")
reasonably prompt notice of known claims giving rise to any claim for
indemnity, and the Indemnifying Party shall have the right and opportunity to
undertake the legal defense of such claims. The Indemnified Party and its
counsel may nevertheless participate in (but not control) such proceedings,
negotiations, or defense at its own expense. In all such cases, the Indemnified
Party will give all reasonable assistance to the Indemnifying Party, including
making the Indemnified Party's employees and documents available as reasonably
requested without charge.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 ESTOPPEL CERTIFICATE. Within ten (10) days after
either party's request, the other party shall deliver, executed in recordable
form, a declaration to any person designated by the requesting party (a)
ratifying this Lease; (b) stating the commencement and termination dates; and
(c) certifying (i) that this Lease is in full force and effect, and has not been
assigned, modified, supplemented, or amended (except by such writings as shall
be stated); (ii) that all conditions under this Lease to be performed have been
satisfied (stating exceptions, if any); (iii) that no defenses or offsets
against the enforcement of this Lease by the requesting party exist (or stating
those claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which
rent has been paid; (vi) the amount of security deposited with Lessor (if
hereafter applicable for any reason); and (vii) such other information as the
requesting party reasonably requires. Persons receiving such statements shall be
entitled to rely upon them.
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20.02 ATTORNMENT. Lessee shall, in the event of a sale or
assignment of Lessor's interest in any of the Tower Space, or, if any of the
Tower Space comes into the hands of any Trustee under a Deed of Trust or a
mortgagee or any other person, whether because of a foreclosure, exercise of a
power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the
purchaser or such mortgagee, Trustee, or other person, and recognize the same as
Landlord hereunder. Lessee shall execute at Lessor's request any attornment
agreement reasonably required by any mortgagee, Trustee, or other such person to
be executed containing such provisions as such mortgagee, Trustee, or other
person reasonably requires, provided, however, that such attornment shall not
modify the terms of this Lease.
20.03 FAILURE TO EXECUTE INSTRUMENTS. Either party's
failure, without good and reasonable cause, to execute instruments or
certificates provided for in this Paragraph 20, within fifteen (15) days after
the receipt by such party of a written request, shall be a default under his
Lease.
21. MISCELLANEOUS.
21.01 RELATIONSHIP OF PARTIES. Nothing contained herein and
no acts of the parties herein shall be deemed or construed as creating any
relationship between the parties hereto other than the relationship of Lessor
and Lessee or Landlord and Tenant.
21.02 GOVERNING LAW. This Lease shall be governed and
construed and enforced in accordance with the laws of the State of North
Carolina.
21.03 CAPTIONS. The captions contained in this Lease are
included solely for convenience and shall in no event affect or be used in
connection with the interpretation of this Lease.
21.04 AMENDMENTS. This Lease only may be amended or
modified as may be agreed upon by written instrument executed by the parties
hereto.
21.05 INTEREST AND ATTORNEY'S FEES. All sums becoming due
or payable under this Lease, including all money expended pursuant to the
provisions hereof or on account of any default in the performance and observance
of any agreements or covenants herein, shall bear interest at the rate of eight
and one half percent (8.5%) per annum (or at such lesser rate which is the
maximum permitted by applicable law) from thirty (30) days after the date such
sums become due or payable, or, in the event one of the parties expends money
because of a default by the other, from thirty (30) days after the date the
defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
21.06 BROKERS AND THIRD PARTIES. Each party represents that
it has not had dealings with any real estate broker or other person who may
claim a commission or finder's fee with respect to this Lease in any manner.
Each party shall hold harmless the other party from
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all damages resulting from any claims that may be asserted against the
Indemnified Party by any broker, finder, or other person with whom the
Indemnifying Party has or purportedly has dealt.
21.07 NOTICES. Notices given pursuant to this Lease shall
be in writing and shall be given by actual delivery or by mailing the same to
the party entitled thereto at the addresses set forth below or at any such other
address as any Party may designate in writing to any other Party pursuant to the
provisions of this paragraph. Notice given by mail shall be sent by United
States mail, certified or registered, return receipt requested or by nationally
recognized courier serviced providing receipt of delivery. Notices shall be
deemed to be received on the date of actual receipt, in the case of personal
delivery, or on the date of mailing, in the case of mailing. Notices shall be
served or mailed to the following addresses, subject to change as provided
above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
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21.08 WAIVER. It is agreed that the waiving of any of the
covenants of this Lease by either party shall be limited to the particular
instance, and shall not be deemed to waive any other breaches of such covenant
or any provision herein contained.
21.09 ACCORD AND SATISFACTION. No receipt of money by
Lessor after the termination of this Lease or after the service of any notice or
after the commencement of any suit reinstates, continues, or extends the term of
this Lease or affects any such notice or suit.
21.10 LIMITATION OF LIABILITY, Except as otherwise
expressly stated herein, Lessor shall not be liable or responsible to the Lessee
or to anyone claiming under or through the Lessee for any loss or damage caused
by the acts or omissions of any other tenants or any other users of the Tower,
or Tower Site, or for any loss or damage to Lessee's Property caused by fire,
water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or
materials falling from the Tower, or the malfunction of any utility, facility,
or installation, or by reason of any other existing condition or defect in the
Tower Space; nor shall Lessor be liable or responsible to the Lessee for any
injury or damage suffered by the Lessee and allegedly caused by technical
interference with the Lessee's operations, by the activities of any other
tenants or users of the Tower and Tower Site, or any other broadcasters. Except
for Lessor's own negligent acts, willful misconduct or for breaches of its
obligations under this Agreement, Lessor shall not be liable to Lessee, or to
any other person for property damage or personal injury, including death. Lessor
shall not be liable under any circumstances for loss of use, loss of sponsorship
or advertising revenue, or any other consequential damages sustained by Lessee.
21.11 PARTIAL INVALIDITY. The invalidity of any provision,
clause, or phrase contained in this Lease shall not serve to render the balance
of this Lease ineffective or void; and the same shall be construed as if such
had not been herein set forth.
21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of
any documentary stamps occasioned by this Lease should it wish to record this
Lease.
21.13 RULES AND REGULATIONS. Lessor may from time to time
issue such rules and regulations in writing which it may consider necessary and
desirable. Lessee agrees to abide by such rules and regulations so long as they
do not unreasonably interfere with Lessee's use and occupancy of the Tower Space
or conflict with this Lease.
21.14 FORCE MAJEURE. Lessor assumes no responsibility for
any losses or damages to Lessee's Property caused by acts of God, including, but
not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water,
or by aircraft or vehicle damage. Lessor furthermore assumes no responsibility
for losses or damages to Lessee's Property caused by any person other than
employees and agents of Lessor. In the event that Lessor shall be delayed,
hindered in or prevented from the performance of any act required hereunder by
reason of acts of God (including, but not limited to, wind, lightning, rain,
ice, earthquake, flood, or rising water), aircraft or vehicle damage or other
casualty, unforeseen soil conditions, acts of third parties who are not
employees of Lessor, strikes, lock-outs, labor troubles, inability to procure
material, failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of
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delay and the period for performance of any such act shall be extended for a
period equivalent to the period of such delay.
21.15 ENTIRE AGREEMENT. This Lease, together with its
Exhibits, constitutes and sets forth the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersedes all prior
or contemporaneous offers, negotiations, and agreements (whether oral or
written) between the parties (or any of their related entities) concerning the
subject matter of this Lease.
21.16 COUNTERPARTS AND DUPLICATES. This Lease may be
executed in counterparts, which, when combined, shall constitute a single
instrument. The Lease may also be executed in duplicate editions, each of which
shall be effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
By: (SEAL)
-------------------------------- --------------------------------------
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX XX ACQUISITION CORP.
By: (SEAL)
-------------------------------- --------------------------------------
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A
DESCRIPTION OF TOWER SITE
WZFX-FM
That certain tract of land more particularly described as follows:
Lying and being in Bladen County, North Carolina near the Town of Tar Heel, and
being located in a part of a 145.1 acre tract of Land bounded on the south by
N.C. Highway Number 87, on the west by the Xxxxxxx Xxxxxxx Estate on the
northeast by the Cape Fear River and on the southeast by Lands of Xxxxx Xxxxx
Xxxxxxxx, it being contemplated and understood that the area includes only a 2
acre portion of a cleared field lying south of a mill pond and dam area in said
tract, with the central tower location to be within the cleared area of said
field, with sufficient area for its guy wires, as appropriate, not to exceed
the total 2 acres.
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EXHIBIT B
DESCRIPTION OF TOWER
WZFX-FM
That certain one thousand one hundred twenty-one (1121) foot communications
tower situated on a tract of land more particularly described as follows:
Lying and being in Bladen County, North Carolina near the Town of Tar Heel, and
being located in a part of a 145.1 acre tract of Land bounded on the south by
N.C. Highway Number 87, on the west by the Xxxxxxx Xxxxxxx Estate on the
northeast by the Cape Fear River and on the southeast by Lands of Xxxxx Xxxxx
Xxxxxxxx, it being contemplated and understood that the area includes only a 2
acre portion of a cleared field lying south of a mill pond and dam area in said
tract, with the central tower location to be within the cleared area of said
field, with sufficient area for its guy wires, as appropriate, not to exceed
the total 2 acres.
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EXHIBIT C
DESCRIPTION OF TOWER SPACE
[HAVE FM ANTENNA, STL AND EAS EQUIPMENT]
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LEASE AGREEMENT (O&L - WIKS-FM)
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns two communications towers as such towers are
described on Exhibit B (collectively, the "Towers") one of such Towers being a
one hundred (100) foot Tower used to transmit to the main tower for WIKS-FM and
called herein the "STL Tower", and the other Tower called herein the "Main
Tower", both the Main Tower and STL Tower situated on a certain tract of real
estate located at New Bern, North Carolina, as such land is more fully
described in Exhibit A attached hereto (hereinafter referred to as the "Tower
Site"; the term "Tower Site" shall also include any appurtenant easements on
such land);
WHEREAS, Lessor desires to lease the Tower for the purpose of Lessee's
radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower from Lessor therefor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 COMMENCEMENT OF TERM. The term of this Lease and
the payment of rent and other performances in accordance with the terms of this
Lease shall commence on the date hereof.
1.02 EXHIBITS. All Exhibits referred to in this Lease
are incorporated herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 LEASED PREMISES. Lessor hereby leases to Lessee,
and Lessee leases from Lessor, with a right of access thereto and parking
therefor in accordance with Section 9:
(a) Space on the Main Tower as such space is
described on Exhibit C attached hereto, for the purposes of the broadcast
transmission of WIKS-FM, New Bern, North Carolina ("WIKS").
(b) Space on the STL Tower, as such space is
described on Exhibit D attached hereto, for the purposes of transmitting the
broadcast signal of WIKS from the STL Tower to the Main Tower;
80
(c) The transmitter building on the Tower Site
used in the operation of WIKS, as more fully described in Exhibit E hereto,
(the "WIKS Transmitter Building"), for the purposes of housing, operation and
maintenance of transmitter and related equipment used in the operation of WIKS
(such space "Lessee's WIKS Transmitter Building Space); and ;
(d) The transmitter building on the Tower Site,
used in the operation of WXNR-FM ("WXNR"), as more particularly described in
Exhibit F hereto (the "WXNR Transmitter Building"), for the purposes of the
housing, operation and maintenance of transmitter and related equipment used in
the operation of WXNR. The WXNR Transmitter Building, together with the WIKS
Transmitter Building, collectively, called herein the "Transmitter Buildings".
(e) All of the property leased under this
Paragraph 2.01 shall hereinafter be called the "Leased Premises".
2.02 OWNERSHIP OF PROPERTY; ACCESS.
(a) Except for "Lessee's Property" (as defined
below) all tenant improvements including all fixtures and trade fixtures shall
become the property of the Lessor, and shall remain with the Leased Premises
after the Lessee vacates same.
(b) The Lessee's antenna, transmission line, and
other equipment, together with any replacements thereof and modifications and
additions thereto, which are permitted hereunder, shall be and remain Lessee's
Property, and are hereinafter referred to as "Lessee's Property". Lessee will
be solely responsible for the maintenance of Lessee's Property, including all
expenses associated with such repair.
(c) Lessee shall have reasonable right of access
to the Tower at all times in emergency situations and whenever reasonably
necessary for equipment maintenance and repair. Lessee shall also have
reasonable rights of access at any time to the Tower for ingress, egress,
utilities, the locating and usage of cabling and related equipment, operations,
maintenance, repair or remodeling, or other engineering purposes.
3. PERMITTED USES.
3.01 BY LESSEE.
(a) Subject to all appropriate government
approvals, including the Federal Communications Commission ("FCC"), the Leased
Premises may be used only for activities related to the operation of radio
broadcast stations. Such operations, shall be conducted in accordance with the
standards imposed by the FCC and any other governmental body with authority
over such transmission and operations.
(b) Except as expressly permitted by this Lease
and unless prior written approval of Lessor has been given, Lessee shall not
construct or make any improvements or install any equipment on the Leased
Premises. Lessee may repair and maintain
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equipment as it deems necessary to its operations within Lessee's space in all
respects in compliance with the terms hereof. The Leased Premises, Lessee's
interior and exterior equipment, and all other improvements shall be maintained
in an orderly and professional manner.
3.02 BY LESSOR.
(a) Subject to the rights elsewhere granted to
Lessee in this Lease and with prior notice to Lessee and no loss of service or
interruption (beyond a temporary, non-recurring and de minimis amount), Lessor
reserves the right to use the Leased Premises, at its own expense, as it sees
fit and to fasten additional equipment to the Tower or Transmitter Buildings
for any purpose, including the right to install transmitting and/or receiving
antennas of others; provided that Lessor shall use reasonable efforts to
restrict any loss of Lessee's service or interruption pursuant to this Section
3.02(a) to the hours of 1:00 a.m. to 5:00 a.m.
(b) Subject to the rights elsewhere granted to
Lessee in this Lease, Lessor shall have the right to use for itself or lease to
others the remainder of the Leased Premises or use of any of the improvements
thereon, space in any building constructed by Lessor for any purpose,
including, but not limited to, any kind of broadcasting or communication,
simultaneous transmissions on AM, FM, SSB, VBIF, UHF, and/or microwave
frequencies, and all rental revenues received therefrom shall belong
exclusively to Lessor. Prior to permitting the fastening of a material amount
of additional equipment, Lessor shall cause a structural analysis of the Tower
to be conducted by a reputable mechanical consultant chosen by Lessor in order
to ensure that any such additions conform to recognized engineering standards.
(c) Except as expressly provided for herein,
Lessor shall have no liability for any action or omission taken in exercise of
its rights hereunder upon reasonable reliance on recommendation of its
engineering personnel.
(d) Subject to the terms of this Lease, Lessor
also reserves the right to erect one (1) or more additional towers on the Tower
Site.
4. TERM.
4.01 TERM. This Lease shall have an term of twenty (20)
years from the Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 RENTAL. Lessee shall pay rent for each consecutive
twelve-month period beginning on the Commencement Date (each a "Lease Year")
during the term of this Lease. Such rental payment shall be payable in equal
and successive monthly installments in advance beginning with the Commencement
Date and continuing thereafter on the first day of each month during the term
of this Lease, such rental payments to be made according to the following
schedule:
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------------------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
------------------------------------------------------------------------------
1 $54,043.80 $4,503.65
------------------------------------------------------------------------------
2 $54,043.80 $4,503.65
------------------------------------------------------------------------------
3 $54,043.80 $4,503.65
------------------------------------------------------------------------------
4 $54,043.80 $4,503.65
------------------------------------------------------------------------------
5 $54,043.80 $4,503.65
------------------------------------------------------------------------------
6 $54,043.80 $4,503.65
------------------------------------------------------------------------------
7 $54,043.80 $4,503.65
------------------------------------------------------------------------------
8 $54,043.80 $4,503.65
------------------------------------------------------------------------------
9 $54,043.80 $4,503.65
------------------------------------------------------------------------------
10 $54,043.80 $4,503.65
------------------------------------------------------------------------------
11 $54,043.80 $4,503.65
------------------------------------------------------------------------------
12 $54,043.80 $4,503.65
------------------------------------------------------------------------------
13 $54,043.80 $4,503.65
------------------------------------------------------------------------------
14 $54,043.80 $4,503.65
------------------------------------------------------------------------------
15 $54,043.80 $4,503.65
------------------------------------------------------------------------------
16 $54,043.80 $4,503.65
------------------------------------------------------------------------------
17 $54,043.80 $4,503.65
------------------------------------------------------------------------------
18 $54,043.80 $4,503.65
------------------------------------------------------------------------------
19 $54,043.80 $4,503.65
------------------------------------------------------------------------------
20 $54,043.80 $4,503.65
------------------------------------------------------------------------------
5.02 PAYMENT OF RENTALS. Rentals to be paid hereunder
shall be paid monthly in lawful money of the United States of America and shall
be paid in advance on the first day of each month during the term of this Lease
by crediting the payment owed to Lessee by Lessor under that certain Promissory
Note made by Lessor in favor of Lessee dated ______, 2000, on the first day of
each month during the term of this Lease. In the event of prepayment of the
Promissory Note by Lessor or other action resulting in amounts equal to any
monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may in
writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
5.03 ELECTRICITY AND OTHER UTILITIES. In addition to
the payments prescribed under Section 5.01 of this Lease, Lessee shall pay for
its own telephone lines and service, electrical service (including electrical
service to the Tower and/or Transmitter Buildings used by Lessee as measured by
a separate electrical meter at Lessee's expense). Lessor shall pay for the
electrical service to the Tower for the Tower lighting.
6. AUTHORITY.
6.01 QUIET ENJOYMENT. Lessor represents and warrants
that it has the full power and authority to enter into this Lease, and
covenants and agrees that Lessee, upon paying the rents described herein and
observing and keeping the covenants, agreements, and
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stipulations of this Lease on Lessee's part to be observed and kept, shall
lawfully, peaceably, and quietly hold, occupy, and enjoy the Leased Premises,
and all other rights and privileges granted herein, without hindrance,
eviction, or molestation by Lessor or any party claiming by or through Lessor.
6.02 LESSEE'S APPROVAL. Lessee represents and warrants
that it has the full power and authority to enter into and perform this Lease.
Any and all necessary corporate resolutions, encumbrance certificates, etc.,
shall be supplied by Lessee upon the request of Lessor.
7. PERMITS.
7.01 PERMITS. Lessor shall obtain all necessary
licenses or permits in connection with the Towers and Transmitter Buildings
except that Lessee shall obtain, at its own expense, any and all necessary
licenses or permits from such governmental authorities as shall have
jurisdiction in connection with the (b) the operations, installation, repair,
alteration, or replacement of Lessee's equipment (including, without
limitation, Lessee's antenna and transmission and/or receiving equipment); or
(c) with any of Lessee's activities thereon or contemplated by this Lease. At
Lessor's request, Lessee shall furnish Lessor with copies of same, and shall
abide by the terms and provisions of such licenses and permits.
8. MAINTENANCE OF TOWER AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
(a) Lessee, at its own cost and expense, shall
maintain and repair Lessee's Property, including specifically its antenna,
related equipment, transmission lines, transmitters, and other equipment.
Lessor shall perform the same tasks with respect to the Towers and the
Transmitter Buildings. All such maintenance shall be conducted by the parties
in accordance with good engineering standards and in conformity with the
requirements of the FCC or any other body having jurisdiction over the Lessee
and its property, including, without limitation, any rules, regulations, or
guidelines of the FCC implementing the National Environmental Policy Act of
1969 pertaining to electromagnetic or radio frequency radiation. Each of Lessor
and Lessee shall take all reasonable precautions to avoid interference or
hindrance to and with the operations of the other party hereto. In this regard,
each party hereto agrees to eliminate, without cost to the other party hereto,
any interference or hindrance to such other party's operation. Maintenance and
repair of Lessee's Property shall be performed only by a reputable contractor
and in accordance with the provisions of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's
Property during normal business hours upon reasonable notice to Lessee, except
that, in the event of an emergency, as determined by Lessor, Lessor may enter
at any time, giving notice of such emergency to Lessee as soon as is practical.
In the event that Lessor reasonably determines that Lessee has not maintained
Lessee's Property and equipment in good order and repair according to industry
standards, and that such repairs are necessary for the safety of the Towers,
Transmitter Buildings or the Tower Site, or the prevention of interference with
Lessor or any other user of
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the Towers or any other broadcaster, Lessor may, at its option, make such
emergency repairs to the property as it deems reasonably necessary, and any
amount expended by Lessor therefor shall be reimbursed to it by Lessee
immediately upon presentation of a statement and shall be deemed additional
rent. Lessor shall not be liable for inconvenience, disturbance, loss of
business, or other damage to Lessee by reason of repairing any of Lessee's
Property which Lessee has failed to properly maintain.
(c) With respect to the non-emergency repairs
which Lessor, in its reasonable discretion, determines that Lessee should make
to maintain Lessee's Property and equipment in good order, and that such
repairs are necessary for the safety of the Towers or Tower Site, or the
prevention of interference with Lessor, in violation of the terms of this
Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance
and repairs required to be performed by Lessee. In the event that, within ten
(10) business days following such written notice (or such longer period as may
be reasonably necessary taking into account all facts and circumstances),
Lessee shall not have performed such maintenance and repairs, Lessor may, at
its sole option, make such repairs as it deems reasonably necessary, and any
amount expended by Lessor therefor shall be deemed additional rent. Lessor
shall not be liable for inconvenience, disturbance, loss of business, or other
damage to Lessee by reason of repairing the property and equipment of Lessee
which Lessee has failed to properly maintain.
(d) No work (including electrical work), except
for emergency repairs that Lessee shall perform to return to, or maintain the
station on air in the event of a failure, will be performed by the Lessee in
connection with the installation, alteration, maintenance, repair, or removal
of any of Lessee's transmission lines, antenna, and other equipment on the
Towers or in the Transmitter Buildings unless the Lessee submits to Lessor a
copy of the proposed contract and also detailed plans and specifications of the
work to be done, and both the contract and the plans and specifications have
been approved in writing by Lessor not to be unreasonably withheld, delayed or
conditioned. Lessee, upon demand therefor by Lessor, agrees to pay Lessor as
additional rent all amounts reasonably expended by Lessor in connection with
review of any such contract, plans, and specifications.
(e) With respect to any work to be performed by
or on behalf of Lessee in connection with the installation, alteration,
maintenance, repair, or removal of any equipment on the Towers or in the
Transmitter Buildings (including any ascension of the Towers), or in or about
the Tower Site. Lessee may only employ a contractor who has been approved in
writing and in advance by Lessor. Lessor agrees that it will not unreasonably
withhold its approval of any contractor who has the requisite experience and
industry standard insurance coverage and who will, at the sole option of
Lessor, provide a bond to cover any work which it has been retained to perform.
Lessor agrees to consult on call in any emergency situation and immediately
give its approval or disapproval.
(f) All work by or on behalf of the Lessee or
Lessor shall be carried out (i) in a good and workmanlike manner; (ii) in
accordance with established engineering standards and public ordinances, rules,
and regulations applicable to such work, including, without limitation, any
rules, regulations, or guidelines of the FCC implementing the National
Environmental Policy Act of 1969, pertaining to electromagnetic or radio
frequency
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radiation; (iii) in accordance with plans and specifications, including
mechanical and electrical drawings, which have been submitted to and approved
in writing and in advance by Lessor; and (iv) in accordance with Lessor's
security procedures with respect to protection of the Tower Site.
(g) Notwithstanding the receipt of the approvals
by Lessor as required in this paragraph, Lessee shall not be relieved of its
responsibilities and liabilities for interference or otherwise as herein
provided, nor shall said approval be deemed a waiver of any other rights of
Lessor under this Lease.
(h) In the event that any notice of lien or
lien shall be filed against any part of the Leased Premises Site for work
claimed to have been done or materials claimed to have been furnished to
Lessee, the same shall be dismissed, withdrawn, discharged or bonded (to
Lessor's reasonable satisfaction) by Lessee within thirty (30) days thereafter
at Lessee's expense; and if Lessee shall fail to take such action as shall
cause such lien to be discharged within thirty (30) days, Lessor may, at its
option, discharge the same by deposit or by bonding proceedings. Lessor may
require the lienor to prosecute the appropriate action to enforce the lienor's
claim. In such case, Lessor shall give immediate notice to Lessee of such
pending action or proceeding so that Lessee may have an opportunity to legally
contest or defend the action or proceeding. If, after such notice to Lessee, a
judgment is recovered on the claim, Lessor, at its sole option, may pay the
judgment. Any reasonable amount paid or expense incurred or sum of money paid
by Lessor (including reasonable attorney's fees) by reason of the failure of
Lessee to comply with the foregoing provisions of this paragraph, or in
defending any such action, shall be paid to Lessor by Lessee, and shall be
treated as additional rent hereunder.
8.02 AT EXPIRATION OR TERMINATION. At the expiration or
termination of this Lease, Lessee shall promptly surrender possession of the
Leased Premises to Lessor in as good a condition as the same were received at
the commencement of the term, reasonable wear and tear and damage by fire or
other casualty beyond Lessee's reasonable control excepted.
9. MAINTENANCE OF TOWER.
9.01 MAINTENANCE OF TOWER.
(a) Lessor shall maintain the Leased Premises
(including any common areas therein or any fence thereon) in good repair.
Lessee shall comply with any security policies reasonably established from time
to time by Lessor.
(b) Lessor assumes the obligation and
responsibility for complying with the requirements of the FCC regarding
obstruction, marking and lighting of the Towers. Lessor shall maintain the
Towers and support systems in good repair and in good operating condition in
accordance with the requirements of governmental authorities.
(c) In the event that Lessor determines that
repairs, alterations, or improvements are necessary or desirable to the Leased
Premises 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,
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service areas, parking areas, or any other facilities at its discretion without
being liable to Lessee; provided that if any of the above would restrict
Lessee's ability to broadcast, Lessor shall use reasonable efforts to restrict
any closure or interruption pursuant to this Section 9.02 to the hours of 1:00
a.m. to 5:00 a.m.. The closing of entrances, doors, common areas, parking
areas, or other facilities for the making of the repairs, alterations, or
improvements described herein shall, under no circumstances, constitute an
eviction of the Lessee or be grounds for termination of this Lease or the
withholding of any rental payments or other payments or performances required
to be paid or made by Lessee under the terms hereof, provided, Lessor shall use
reasonable efforts to ensure that any action taken in accordance with this
paragraph shall not adversely affect the rights of Lessee hereunder. Under no
such circumstances shall Lessee be entitled to terminate this Lease nor shall
it be entitled to compensation for any loss or damage it may sustain (including
loss of use, loss of advertising/sponsorship revenues, and consequential
damages) by reason of such changes or alterations.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own
expense, to make such changes and alterations in the Lessee's Property situated
on the Towers, subject to Paragraph 8.01 and Paragraph 11 hereof, as its
operations may require, including the renovation, replacement, or removal of
its antenna; provided, however, that such changes or alterations conform with
recognized engineering standards and, if necessary, have been approved by the
FCC and any other authority having jurisdiction over Lessee; and provided
further, that plans and specifications are first submitted to and approved in
writing by Lessor. Lessee shall make no changes in the equipment or equipment
position without such approval, and Lessor shall not unreasonably fail to give
such approval within ten (10) business days.
(b) This Lease is based upon carefully computed
tower loading capacity. If any change proposed by Lessee in the type, location,
or positioning of Lessee's Property should, in Lessor's judgment, require a
computer or other type of feasibility study to determine loading capacity of
the Towers, such study shall be performed by an engineer chosen by Lessor, and
approved by Lessee (such approval not to be unreasonably withheld, delayed or
conditioned) whose decision shall be final and binding upon both parties. The
cost of such study or any other costs reasonably incurred by Lessor in
determining the feasibility of any proposed change or alteration in the type,
location, or positioning of Lessee's Property shall be borne entirely by
Lessee.
11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation on the Leased Premises
after the date hereof, notification of the particulars of such proposed
installation shall be submitted to Lessor hereto and any other lessees or users
of space on the Towers whose names and addresses are supplied to Lessee by
Lessor in writing, and the Lessor and such other users will be requested
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to advise, in writing, the Lessee and Lessor, as applicable, within ten (10)
days after receipt of such notification, whether they have any reasonable
objections thereto on the grounds that objectionable interference may result;
provided, this Section 11.01 shall not apply to any currently installed
Lessee's Property or its replacement, maintenance or repair. If the Lessor or
any other user shall reasonably object within this period to such plans and
Lessee is unwilling to alter its plans to meet the objections, the dispute
shall be submitted to an independent professional engineer chosen by Lessor,
and such engineers decision shall be final and binding upon all parties. The
cost of any such studies shall be borne by Lessee.
11.02 INTERFERENCE WITH LESSOR, LESSEE, OR OTHERS.
Notwithstanding the provisions of Paragraph 11.01, should any change, after the
date hereof, in the facilities or mode of operation of Lessee or Lessee's
failure to comply with the Maintenance Standards, as defined in Paragraph
11.04, cause any objectionable electrical or physical interference (including
interference from any other structure erected on the Tower Site) to the
television and/or radio broadcasting and/or receiving operations of any other
lessee, then, promptly after written notification of such interference, the
Lessee, at its sole expense, will take such steps as may be reasonably required
to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filters or other equipment, provided that, if such interference is caused,
after the date hereof, by the failure of the Lessor or any other lessee
suffering the interference to comply with the Maintenance Standards, as defined
in Paragraph 11.04, then Lessor shall, or shall cause the other lessee
suffering the interference, at its sole expense, to comply with such
Maintenance Standards. Any dispute as to the cause of interference, or the
steps reasonably required to correct it, arising under this Paragraph. 11.02,
shall be submitted to an independent professional engineer chosen by Lessor,
and such engineer's decision shall be final and binding upon the parties. If
such interference is found to be caused by such changed facilities or
operation, the fees and charges of the engineer to whom the dispute is referred
shall be borne by the party whose changed facilities or mode of operations gave
rise to the claimed interference. If such interference is found not to be
caused by such changed facilities or operations, the fees and charges of the
engineer to whom the dispute is referred shall be borne by the objecting party.
All other leases and/or agreements to lease space at the Tower Site shall
contain this language.
11.03 INTERFERENCE BY OTHER USER. Any subsequent
agreement under which Lessor allows any other person to occupy any portion of
the Leased Premises 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
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reasonable efforts to ensure that the installation, operation or maintenance of
its equipment which is installed after the commencement date of this Lease on,
in or around the Tower shall not cause any objectionable interference with the
operations of Lessee. Immediately upon notification of such interference by
Lessee, Lessor shall at its sole expense take such steps as may be reasonably
necessary to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filter or other equipment.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the
purposes of this Lease, compliance with "Maintenance Standards" shall mean that
a tenant or user of the Towers shall (a) maintain and operate its equipment in
accordance with the requirements, rules, regulations, and guidelines of the
FCC, and the standards of manufacturers of the equipment; and (b) maintain and
operate its equipment in accordance with good engineering practice.
12. UTILITIES.
12.01 UTILITIES. Subject to the required approvals and
cooperation of any governmental authority or public utilities, Lessee shall
arrange and be responsible for the installation and provision of electrical and
telephone lines serving Lessee's Property at any building on the Tower Site
owned by Lessor. Lessee shall be responsible for procurement of and payment for
all telephone services as described in Paragraph 5.03 and used by Lessee.
13. TAXES.
13.01 PAYMENT OF TAXES. Lessee shall pay all real estate
taxes, assessments, or levies assessed or imposed against the Tower Site
(including the Towers), and all taxes which may be assessed against the Towers
or the Transmitter Buildings. [Foregoing obligation is subject to $200,000
12-month limit when aggregated with other borrowers under Credit Agreement per
1.5D of First Amendment to Credit Agreement]. Lessee shall pay all personal
property or other taxes assessed or imposed on Lessee's Property, and shall
cooperate with Lessor to ensure that such property is properly separated from
that of Lessor or other tenants for assessment purposes.
14. INSURANCE.
14.01 PUBLIC LIABILITY. Lessee shall procure and
maintain comprehensive public liability insurance, naming Lessor as an
additional insured as its interests shall appear, covering all of the Lessee's
operations and activities on the Leased Premises, including but not limited to,
the operations of contractors and subcontractors and the operation of vehicles
and equipment (including any 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
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to $200,000 12-month limit when aggregated with other borrowers under Credit
Agreement per 1.5D of First Amendment to Credit Agreement].
14.02 CONTRACTOR LIABILITY. Lessee shall also cause the
contractors erecting, installing, or maintaining Lessee's Property or
performing any other work for Lessee on the Tower Site to procure reasonable
public liability insurance acceptable to Lessor and naming the Lessee and
Lessor as named insureds. Certificates evidencing such insurance shall be
furnished to Lessor in advance of any work being performed.
14.03 TOWER INSURANCE. Lessee shall procure and maintain
physical damage insurance on the Towers and Transmitter Buildings in an amount
sufficient to repair or replace the Towers or Transmitter Buildings with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake,
collapse, explosion, aircraft and vehicle damage, vandalism, and malicious
mischief. [Foregoing obligation is subject to $200,000 12-month limit when
aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement]. Lessee shall be solely responsible for its
insurance on Lessee's Property, together with business interruption insurance.
14.04 TOWER DAMAGE. In the event that the Towers and
Transmitter Buildings are destroyed or damaged by fire, lightning, windstorm,
flood, earthquake, explosion, collapse, aircraft, or other vehicle damage or
other casualty covered by insurance, Lessor shall promptly reconstruct or
repair the Towers and/or Transmitter Buildings 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 Towers and Transmitter Buildings as required of
Lessor under this Section 14.04. If the Towers and/or Transmitter Buildings are
in need of such repair or is so damaged by fire, lightning, windstorm, flood,
earthquake, explosion, aircraft or other vehicle damage, collapse, or other
casualty that reconstruction or repair cannot reasonably be undertaken without
dismantling Lessee's antenna, then upon written notice to Lessee, Lessor may
remove any such antenna and interrupt the signal activity of Lessee, but will
use its best efforts to have the antenna replaced as soon as reasonably
possible. Lessor agrees to provide Lessee an alternative tower or transmitter
building, if available, during such reconstruction/repair period. If such tower
is not available, then Lessee shall be responsible for procuring its own
alternative tower or transmitter building. No monetary or other rental shall be
due pursuant to the terms of this Lease for such time as Lessee is unable to
conduct its broadcasting activities on the Towers without significant
diminution of signal quality as a result of such total or partial destruction
or damage or need of repair, and Lessor shall refund to Lessee any rent paid in
advance for such time. Should Lessor not either (a) inform Lessee in writing
within ninety (90) days of the date of destruction of Lessor's intent to
replace the Towers and/or Transmitter Buildings or (b) replace the Towers
and/or Transmitter Buildings 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
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within one hundred twenty (120) days prior to the expiration of said repair or
replacement period. Lessee agrees that it shall maintain adequate business
interruption insurance at all times during the term of this Lease to adequately
protect it from any interruption of signal activities due to damage to the
Towers or Transmitter Buildings (including costs of reinstallation of its
equipment and lines), and Lessor shall have no liability on account of such
business interruption or reinstallation costs due to damage or destruction
under this paragraph.
15. EMINENT DOMAIN.
(a) In the event that all of the Tower Site (or
any portion of the Tower Site necessary for the guy wires, or other
appurtenances necessary to Lessee's broadcasting operations) is acquired or
transferred or condemned pursuant to eminent domain proceedings (or the threat
thereof), the obligation of the parties under this Lease shall be terminated as
of the date of acquisition or transfer. Lessor shall be entitled to the entire
condemnation award. If Lessor determines to build a new tower or transmitter
building as a replacement for the Tower on the condemned property, Lessor
agrees to lease the new tower or transmitter building on terms reasonably
equivalent to the terms of this Lease.
(b) In the event that this Lease is terminated
due to eminent domain proceedings, then Lessee shall be relieved of any further
obligations to make any rental payments or performances for any period after
the date of such termination of this Lease; and subject to offset or
withholding by Lessor to cover any unpaid additional rent or other authorized
charges which may be owed through the date of termination, Lessee shall be
entitled to a refund of any advance rental sums which it has paid in proportion
to the period of the Lease through such date of termination.
16. SUCCESSORS AND ASSIGNMENT.
16.01 SUCCESSORS. All rights and liabilities herein
given to or imposed upon the respective parties hereto shall, to the extent
that such are assignable, extend to and bind the several and respective
successors and assigns of the parties hereto.
16.02 ASSIGNMENT. Lessee shall not assign, sublet, or
transfer this Lease or any interest therein, or permit or allow through any act
or default of itself, or of any other person, any transfer thereof by
operations of law or otherwise without the prior written consent of Lessor
except:
(a) Lessee may assign this Lease to any bona fide
third party purchaser of substantially all the assets comprising of Lessee's
radio station broadcasting from the Tower Site, who shall execute an assignment
and assumption agreement in form reasonably acceptable to Lessor; and
(b) Lessee may assign or transfer all or a
portion of the assets of Lessee, including this Lease, to any corporation
controlling, controlled by, or under common control with, Lessee.
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(c) Any assignment or subletting by Lessee except
as permitted herein shall be void and of no effect. Any permitted assignment
shall not relieve Lessee of any of its liabilities hereunder. A change in
control of Lessee, but not the mortgaging by Lessee of its rights hereunder,
shall constitute an assignment of this Lease. Lessor agrees to enter into
documentation reasonably requested by any lender to Lessee in connection with
Lessee's mortgaging of its rights hereunder.
(d) Lessor may assign or transfer this Lease
without the consent of Lessee, but shall notify Lessee following any transfer
or assignment.
17. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the
event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not
be deemed fixtures) on the Tower or within the Transmitter Building within
thirty (30) days of such termination. Such removal shall be conducted in
accordance with Paragraph 8.01 hereof Lessee shall promptly repair any and all
damage caused by such removal. Any of Lessee's Property remaining on the Tower
or within the Transmitter Building after the expiration of the thirty (30) day
period shall be deemed to be the property of Lessor, which Lessor may have
removed at Lessee's expense.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(a) If Lessee shall make default in making any
payment herein provided for and any such default shall continue for a period of
ten (10) business days after written notice to Lessee, or if Lessee shall make
default in the performance of any obligation of Lessee herein (other than as to
payment of money) and any such default shall continue for a period of thirty
(30) days after written notice to Lessee, or if Lessee shall file a voluntary
petition in bankruptcy, or if Lessee shall file any petition or institute any
proceedings under any Insolvency or Bankruptcy Act or any amendment thereto
hereafter made, seeking to effect its reorganization or a composition with its
creditors, or if, in any proceedings based on the insolvency of Lessee or
relating to bankruptcy proceedings, a receiver or trustee shall be appointed
for Lessee or the Leased Premises, or if any proceedings shall be commenced for
the reorganization of Lessee (which, in the case of involuntary proceedings,
are not dismissed or stayed within 30 days of the commencement thereof), or if
the leasehold estate created hereby shall be taken on execution or by any
process of law, or if Lessee shall admit in writing its inability to pay its
obligations generally as they become due, then Lessor may, at its option,
terminate this Lease without notice, and declare all amounts due or to become
due hereunder immediately due and payable, and Lessor's agents and servants may
immediately, or any time thereafter, reenter the Leased Premises by reasonably
necessary force, summary proceedings, or 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
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provided by law or permitted herein, at its option, relet the Leased Premises
(or any part thereof) on behalf of Lessee, applying any monies collected first
to the payment of expenses of resuming or obtaining possession, and, second, to
the payment of the costs of placing the premises in rentable condition,
including any leasing commission, and, third, to the payment of rent due
hereunder, and any other damages due to the Lessor. Any surplus remaining
thereafter shall be paid to Lessee, and Lessee shall remain liable for any
deficiency in rental, the amount of which deficiency shall be paid upon demand
therefor to Lessor.
(b) Should Lessor re-enter and terminate
according to the provisions of this subparagraph, Lessor may remove and store
the Lessee's Property at the expense and for the account of Lessee.
Alternatively, Lessor may sell, or cause to be sold, Lessee's Property at
public sale to the highest bidder for cash, and remove from the proceeds of
such sale any rent or other payment then due Lessor under this Lease. Any
disposition of the Lessee's Property pursuant thereto shall be subject to the
rights of any lender to Lessee holding a mortgage on Lessee's Property and
shall be made in a manner that is commercially reasonable within the meaning of
the Uniform Commercial Code as in effect in the State of North Carolina at the
time of such disposition.
19. INDEMNIFICATION.
(a) Each party warrants and represents that it
has the authority to enter into this Lease and to grant the rights it grants
hereunder, and that performance of its obligations pursuant to this Lease will
not violate the rights of any third party whatsoever. Lessee agrees to
indemnify and defend Lessor against any claim for damages, losses, liabilities,
costs, or expenses, including reasonable attorney's fees, arising (a) out of
any breach by Lessee of its warranties, representations, or covenants under
this Lease; (b) out of the use, management, or occupancy of the Leased Premises
by Lessee, its agents, or invitees; (c) out of any omissions, negligence or
willful misconduct of Lessee, its agents, servants, employees, licensees, or
invitees; (d) out of failure of Lessee to comply with any laws, statutes,
ordinances, or regulations; (e) out of Lessee's failure to maintain equipment
in proper working order; and (f) out of Lessee's failure to comply with any of
its other obligations under the terms of this Lease.
(b) Lessor agrees to indemnify and defend Lessee
against any claim for damages, losses, liabilities, costs, or expenses,
including reasonable attorney's fees, arising (a) out of any breach by Lessor
of its warranties, representations, or covenants under this Lease; (b) out of
the use, management, or occupancy of the Leased Premises by Lessor, its agents,
or invitees; (c) out of any omissions, negligence or willful misconduct of
Lessor, its agents, servants, employees, licensees, or invitees; (d) out of
failure of Lessor to comply with any laws, statutes, ordinances, or
regulations; (e) out of Lessor's failure to maintain equipment in proper
working order; and (f) out of Lessor's failure to comply with any of its other
obligations under the terms of this Lease.
(c) Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other party ("Indemnifying Party")
reasonably prompt notice of known claims giving rise to any claim for
indemnity, and the Indemnifying Party shall have the right and opportunity to
undertake the legal defense of such claims. The Indemnified Party and its
counsel
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may nevertheless participate in (but not control) such proceedings,
negotiations, or defense at its own expense. In all such cases, the Indemnified
Party will give all reasonable assistance to the Indemnifying Party, including
making the Indemnified Party's employees and documents available as reasonably
requested without charge.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 ESTOPPEL CERTIFICATE. Within ten (10) days after
either party's request, the other party shall deliver, executed in recordable
form, a declaration to any person designated by the requesting party (a)
ratifying this Lease; (b) stating the commencement and termination dates; and
(c) certifying (i) that this Lease is in full force and effect, and has not
been assigned, modified, supplemented, or amended (except by such writings as
shall be stated); (ii) that all conditions under this Lease to be performed
have been satisfied (stating exceptions, if any); (iii) that no defenses or
offsets against the enforcement of this Lease by the requesting party exist (or
stating those claimed); (iv) advance rent, if any, paid by Lessee; (v) the date
to which rent has been paid; (vi) the amount of security deposited with Lessor
(if hereafter applicable for any reason); and (vii) such other information as
the requesting party reasonably requires. Persons receiving such statements
shall be entitled to rely upon them.
20.02 ATTORNMENT. Lessee shall, in the event of a sale
or assignment of Lessor's interest in any of the Leased Premises, or, if any of
the Leased Premises comes into the hands of any Trustee under a Deed of Trust
or a mortgagee or any other person, whether because of a foreclosure, exercise
of a power of sale under a mortgage or Deed of Trust, or otherwise, attorn to
the purchaser or such mortgagee, Trustee, or other person, and recognize the
same as Landlord hereunder. Lessee shall execute at Lessor's request any
attornment agreement reasonably required by any mortgagee, Trustee, or other
such person to be executed containing such provisions as such mortgagee,
Trustee, or other person reasonably requires, provided, however, that such
attornment shall not modify the terms of this Lease.
20.03 FAILURE TO EXECUTE INSTRUMENTS. Either party's
failure, without good and reasonable cause, to execute instruments or
certificates provided for in this Paragraph 20, within fifteen (15) days after
the receipt by such party of a written request, shall be a default under his
Lease.
21. MISCELLANEOUS.
21.01 RELATIONSHIP OF PARTIES. Nothing contained herein
and no acts of the parties herein shall be deemed or construed as creating any
relationship between the parties hereto other than the relationship of Lessor
and Lessee or Landlord and Tenant.
21.02 GOVERNING LAW. This Lease shall be governed and
construed and enforced in accordance with the laws of the State of North
Carolina.
21.03 CAPTIONS. The captions contained in this Lease are
included solely for convenience and shall in no event affect or be used in
connection with the interpretation of this Lease.
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21.04 AMENDMENTS. This Lease only may be amended or
modified as may be agreed upon by written instrument executed by the parties
hereto.
21.05 INTEREST AND ATTORNEY'S FEES. All sums becoming
due or payable under this Lease, including all money expended pursuant to the
provisions hereof or on account of any default in the performance and
observance of any agreements or covenants herein, shall bear interest at the
rate of eight and one half percent (8.5%) per annum (or at such lesser rate
which is the maximum permitted by applicable law) from thirty (30) days after
the date such sums become due or payable, or, in the event one of the parties
expends money because of a default by the other, from thirty (30) days after
the date the defaulting party received written notice that such money was
expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
21.06 BROKERS AND THIRD PARTIES. Each party represents
that it has not had dealings with any real estate broker or other person who
may claim a commission or finder's fee with respect to this Lease in any
manner. Each party shall hold harmless the other party from all damages
resulting from any claims that may be asserted against the Indemnified Party by
any broker, finder, or other person with whom the Indemnifying Party has or
purportedly has dealt.
21.07 NOTICES. Notices given pursuant to this Lease
shall be in writing and shall be given by actual delivery or by mailing the
same to the party entitled thereto at the addresses set forth below or at any
such other address as any Party may designate in writing to any other Party
pursuant to the provisions of this paragraph. Notice given by mail shall be
sent by United States mail, certified or registered, return receipt requested
or by nationally recognized courier serviced providing receipt of delivery.
Notices shall be deemed to be received on the date of actual receipt, in the
case of personal delivery, or on the date of mailing, in the case of mailing.
Notices shall be served or mailed to the following addresses, subject to change
as provided above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
00
00
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx XX Acquisition Corp.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
21.08 WAIVER. It is agreed that the waiving of any of
the covenants of this Lease by either party shall be limited to the particular
instance, and shall not be deemed to waive any other breaches of such covenant
or any provision herein contained.
21.09 ACCORD AND SATISFACTION. No receipt of money by
Lessor after the termination of this Lease or after the service of any notice
or after the commencement of any suit reinstates, continues, or extends the
term of this Lease or affects any such notice or suit.
21.10 LIMITATION OF LIABILITY. Except as otherwise
expressly stated herein, Lessor shall not be liable or responsible to the
Lessee or to anyone claiming under or through the Lessee for any loss or damage
caused by the acts or omissions of any other tenants or any other users of the
Tower, or Tower Site, or for any loss or damage to Lessee's Property caused by
fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or
materials falling from the Tower, or the malfunction of any utility, facility,
or installation, or by reason of any other existing condition or defect in the
Tower; nor shall Lessor be liable or responsible to the Lessee for any injury
or damage suffered by the Lessee and allegedly caused by technical interference
with the Lessee's operations, by the activities of any other tenants or users
of the Tower and Tower Site, or any other broadcasters. Except for Lessor's own
negligent acts, willful misconduct or for breaches of its obligations under
this Agreement, Lessor shall not be liable to Lessee, or to any other person
for property damage or personal injury, including death. Lessor shall not be
liable under any circumstances for loss of use, loss of sponsorship or
advertising revenue, or any other consequential damages sustained by Lessee.
21.11 PARTIAL INVALIDITY. The invalidity of any
provision, clause, or phrase contained in this Lease shall not serve to render
the balance of this Lease ineffective or void; and the same shall be construed
as if such had not been herein set forth.
21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of
any documentary stamps occasioned by this Lease should it wish to record this
Lease.
21.13 RULES AND REGULATIONS. Lessor may from time to
time issue such rules and regulations in writing which it may consider
necessary and desirable. Lessee agrees to abide by such rules and regulations
so long as they do not unreasonably interfere with Lessee's use and occupancy
of the Tower or conflict with this Lease.
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21.14 FORCE MAJEURE. Lessor assumes no responsibility
for any losses or damages to Lessee's Property caused by acts of God,
including, but not limited to, wind, lightning, rain, ice, earthquake, floods,
or rising water, or by aircraft or vehicle damage. Lessor furthermore assumes
no responsibility for losses or damages to Lessee's Property caused by any
person other than employees and agents of Lessor. In the event that Lessor
shall be delayed, hindered in or prevented from the performance of any act
required hereunder by reason of acts of God (including, but not limited to,
wind, lightning, rain, ice, earthquake, flood, or rising water), aircraft or
vehicle damage or other casualty, unforeseen soil conditions, acts of third
parties who are not employees of Lessor, strikes, lock-outs, labor troubles,
inability to procure material, failure of power, governmental actions, laws or
regulations, riots, insurrection, war, or other reasons beyond its control,
then the performance of such act shall be excused for the period of delay and
the period for performance of any such act shall be extended for a period
equivalent to the period of such delay.
21.15 ENTIRE AGREEMENT. This Lease, together with its
Exhibits, constitutes and sets forth the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersedes all prior
or contemporaneous offers, negotiations, and agreements (whether oral or
written) between the parties (or any of their related entities) concerning the
subject matter of this Lease.
21.16 COUNTERPARTS AND DUPLICATES. This Lease may be
executed in counterparts, which, when combined, shall constitute a single
instrument. The Lease may also be executed in duplicate editions, each of which
shall be effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their
respective hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
-------------------------------- By: (SEAL)
Witness --------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX XX ACQUISITION CORP.
-------------------------------- By: (SEAL)
Witness --------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A
DESCRIPTION OF TOWER SITE
WIKS-FM (MAIN TOWER)
That certain two-acre portion of a tract of land situate in Township Nine,
Xxxxxx County, North Carolina, described as the second parcel in deed recorded
in Book 903, Page 34 in the Office of the Register of Deeds of Xxxxxx County,
North Carolina.
Such land does not include that certain one-half acre lot described in deed
recorded in Book 983, Page 904, Xxxxxx County Registry, nor shall it include
the property described in Deed Book 1110, Page 917, Xxxxxx County Registry, nor
shall it include the property described in Deed Book 1508, Page 707, Xxxxxx
County Registry.
WIKS-FM (STL TOWER)
That certain tract of land more particularly described as follows:
All that certain Piece, Parcel or Plot of land lying, situate and being in
Township No. Eight (8), Xxxxxx County, North Carolina and being more fully
described and bounded as follows:
Beginning at an existing iron pipe in the Southerly right-of-way line of
Glenburnie Drive (formerly Park Avenue), which point of beginning lies North 51
degrees 11'59" East at a distance of 762.92 feet from an existing iron pipe in
the intersection of the Southern right-of-way line of Glenburnie Drive with the
Eastern right-of-way line of Oaks Road.
Thence continuing along the Southerly right-of-way line of Glenburnie Drive,
North 50 degrees 14'00" East for a distance of 350.00 feet to an existing iron
pipe;
Thence South 36 degrees 50'00" East for a distance of 434.98 feet to a point;
Thence South 50 degrees 14'00" West for a distance of 350.00 feet to a point;
Thence North 36 degrees 50'00" West for a distance of 434.98 feet to the point
or place of beginning and containing 3.490 acres more or less.
Saving and excepting, however, from the hereinabove described property that
certain perpetual right-of-way and easement of ingress and egress, on, across
and upon the following described lands, to wit:
All that certain Piece, Parcel or Plot of land lying, situate and being in
Township No. Eight (8), Xxxxxx County, North Carolina and being more fully
described and bounded as follows:
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Beginning at an existing iron pipe in the Southerly right-of-way line of
Glenburnie Drive (formerly Park Avenue), which point of beginning lies North 51
degrees 11'59" East a distance of 762.92 feet and North 50 degrees 14'00" East a
distance of 350.00 feet from an existing iron pipe in the intersection of the
Southern right-of-way line of Glenburnie Drive with the Eastern right-of-way
line of Oaks Road. Said point of beginning being the Northereasternmost corner
of the hereinabove described parcel of land.
Thence from said point of beginning South 36 degrees 50'00" East a distance of
434.98 feet to a point;
Thence South 50 degrees 14'00" West a distance of 15 feet more or less to a
point;
Thence North 36 degrees 50'00" West a distance of 434.98 feet to an existing
iron pin set in the Southerly right-of-way line of Glenburnie Drive;
Thence in an Easterly direction along said Southerly right-of-way line of
Glenburnie Drive North 50 degrees 14'00" East a distance of 15 feet more or less
to the point or place of beginning.
This being the same right-of-way easement as conveyed by an indenture dated
February 14, 1963 between Jefferay Broadcasting Corporation and Xxxxxx Xxxx and
wife Xxxxx X. Xxxx as recorded in Book 642 at Page 482 in the Office of the
Register of Deeds of Xxxxxx County.
All that certain perpetual right and easement to construct and maintain a
drainage ditch on, across and upon the lands of Xxxxxx Xxxx and wife Xxxxx X.
Xxxx as is set forth in that certain indenture dated February 14, 1963 between
Jefferay Broadcasting Corporation and Xxxxxx Xxxx and wife Xxxxx X. Xxxx
recorded on Book 642 at Page 482 in the Office of the Register of Deeds of
Xxxxxx County, over the following described lands:
Beginning at a point in the Southwesternmost corner of the parcel previously
described (Tract One). Said point of beginning being located 434.98 feet from
the Southern right-of-way line of Glenburnie Drive, along the Westernmost
boundary of Tract One hereinabove conveyed.
Thence from said point of beginning South 36 degrees 50'00" East a distance of
800 feet more or less to the Southern boundary of lands now or formerly owned
by Xxxxxx Xxxx and wife Xxxxx X. Xxxx;
Thence in an Easterly direction and parallel with Glenburnie Drive 15 feet more
or less to a point;
Thence North 36 degrees 50'00" West and parallel with the first call herein 800
feet more or less to the Southerly boundary line of the aforementioned and
described Tract One;
Thence along said Southerly line in a Westerly direction 15 feet more or less
to the point or place of beginning.
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Such legal description is subject to the following exceptions:
1. General Permit to Carolina Telephone and Telegraph Company recorded in
Book 788, page 178, Xxxxxx County Registry. (Tracts 1 & 2)
2. Easement for drainage recorded in Book 1140, page 1015, Xxxxxx County
Registry. (Tracts 1 & 2)
3. Rights of the Grantors, their heirs and assigns in that easement recorded
in Book 642, page 482, Xxxxxx County Registry. (Tracts 1 & 2)
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EXHIBIT B
DESCRIPTION OF TOWERS
WIKS-FM (MAIN TOWER)
That certain communications tower situated on a two-acre portion of a tract of
land situate in Township Nine, Xxxxxx County, North Carolina, described as the
second parcel in deed recorded in Book 903, Page 34 in the Office of the
Register of Deeds of Xxxxxx County, North Carolina.
Such land does not include that certain one-half acre lot described in deed
recorded in Book 983, Page 904, Xxxxxx County Registry, nor shall it include
the property described in Deed Book 1110, Page 917, Xxxxxx County Registry, nor
shall it include the property described in Deed Book 1508, Page 707, Xxxxxx
County Registry.
WIKS-FM (STL)
That certain one-hundred (100) foot tower providing a link to the main
transmission tower for WIKS-FM, such one-hundred (100) foot backup tower
situated on a tract of land more particularly described as follows:
All that certain Piece, Parcel or Plot of land lying, situate and being in
Township No. Eight (8), Xxxxxx County, North Carolina and being more fully
described and bounded as follows:
Beginning at an existing iron pipe in the Southerly right-of-way line of
Glenburnie Drive (formerly Park Avenue), which point of beginning lies North 51
degrees 11'59" East at a distance of 762.92 feet from an existing iron pipe in
the intersection of the Southern right-of-way line of Glenburnie Drive with the
Eastern right-of-way line of Oaks Road.
Thence continuing along the Southerly right-of-way line of Glenburnie Drive,
North 50 degrees14'00" East for a distance of 350.00 feet to an existing iron
pipe;
Thence South 36 degrees 50'00" East for a distance of 434.98 feet to a point;
Thence South 50 degrees 14'00" West for a distance of 350.00 feet to a point;
Thence North 36 degrees 50'00" West for a distance of 434.98 feet to the point
or place of beginning and containing 3.490 acres more or less.
Saving and excepting, however, from the hereinabove described property that
certain perpetual right-of-way and easement of ingress and egress, on, across
and upon the following described lands, to wit:
All that certain Piece, Parcel or Plot of land lying, situate and being in
Township No. Eight (8), Xxxxxx County, North Carolina and being more fully
described and bounded as follows:
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Beginning at an existing iron pipe in the Southerly right-of-way line of
Glenburnie Drive (formerly Park Avenue), which point of beginning lies North 51
degrees11'59" East a distance of 762.92 feet and North 50 degrees14'00" East a
distance of 350.00 feet from an existing iron pipe in the intersection of the
Southern right-of-way line of Glenburnie Drive with the Eastern right-of-way
line of Oaks Road. Said point of beginning being the Northereasternmost corner
of the hereinabove described parcel of land.
Thence from said point of beginning South 36 degrees 50'00" East a distance of
434.98 feet to a point;
Thence South 50 degrees 14'00" West a distance of 15 feet more or less to a
point;
Thence North 36 degrees 50'00" West a distance of 434.98 feet to an existing
iron pin set in the Southerly right-of-way line of Glenburnie Drive;
Thence in an Easterly direction along said Southerly right-of-way line of
Glenburnie Drive North 50 degrees14'00" East a distance of 15 feet more or less
to the point or place of beginning.
This being the same right-of-way easement as conveyed by an indenture dated
February 14, 1963 between Jefferay Broadcasting Corporation and Xxxxxx Xxxx and
wife Xxxxx X. Xxxx as recorded in Book 642 at Page 482 in the Office of the
Register of Deeds of Xxxxxx County.
All that certain perpetual right and easement to construct and maintain a
drainage ditch on, across and upon the lands of Xxxxxx Xxxx and wife Xxxxx X.
Xxxx as is set forth in that certain indenture dated February 14, 1963 between
Jefferay Broadcasting Corporation and Xxxxxx Xxxx and wife Xxxxx X. Xxxx
recorded on Book 642 at Page 482 in the Office of the Register of Deeds of
Xxxxxx County, over the following described lands:
Beginning at a point in the Southwesternmost corner of the parcel previously
described (Tract One). Said point of beginning being located 434.98 feet from
the Southern right-of-way line of Glenburnie Drive, along the Westernmost
boundary of Tract One hereinabove conveyed.
Thence from said point of beginning South 36 degrees 50'00" East a distance of
800 feet more or less to the Southern boundary of lands now or formerly owned
by Xxxxxx Xxxx and wife Xxxxx X. Xxxx;
Thence in an Easterly direction and parallel with Glenburnie Drive 15 feet more
or less to a point;
Thence North 36 degrees 50'00" West and parallel with the first call herein 800
feet more or less to the Southerly boundary line of the aforementioned and
described Tract One;
Thence along said Southerly line in a Westerly direction 15 feet more or less
to the point or place of beginning.
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EXHIBIT C
DESCRIPTION OF SPACE ON XXXX XXXXX
00
000
XXXXXXX X
DESCRIPTION OF SPACE ON STL TOWER
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EXHIBIT E
DESCRIPTION OF WIKS TRANSMITTER BUILDING
27
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EXHIBIT F
DESCRIPTION OF WXNR TRANSMITTER BUILDING
28
