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EXHIBIT 10.15
AGREEMENT OF SALE (O&O)
This Agreement of Sale (the "Agreement") is made this ___ day of
February, 2000, between Xxxxxxx Broadcasting of Eastern North Carolina, Inc., a
North Carolina corporation (the "Seller") and Xxxxxxx Family Towers, Inc., a
Delaware corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprising one
parcel of real property and two (2) communications tower facilities (the
"Towers") located in Saddletree Township, North Carolina and used in connection
with the operation of radio broadcast station WKML-FM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the Towers
and certain real and personal property belonging to Seller and associated with
the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties, intending to be legally bound hereby,
agree as follows:
1. Agreement to Sell and Purchase.
Seller agrees to sell, transfer, assign, convey and deliver to Buyer and
Buyer agrees to purchase and accept from Seller, the following assets upon the
terms and conditions contained herein (collectively, the "Assets"):
(a) That certain tract of land, and easements or appurtenances
incident to such tract of land, that are associated with the Tower Site
(collectively, such land, easements and appurtenances, the "Land"), and the
Towers, such Towers and the Land more particularly described in Exhibit A
attached hereto and incorporated herein; and
(b) The leases for use of space on certain of the Towers
located at the Tower Site and certain real property within the Tower Site as
more particularly discussed in Section 5(d) of this Agreement.
2. Assumption of Liabilities.
(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 and with respect to the ownership of the Land and Towers, and the
operation of the business relating to the Assets (as defined in Section 5(d)
hereof) (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is
understood and agreed that all liabilities to third parties relating to the
Assets that arise out of any act, event, or
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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, (subject to Section 13 hereof), Seller shall and hereby agrees to satisfy
in due course all such Retained Liabilities, and Seller shall protect and
forever hold Buyer harmless from all claims with respect to such Retained
Liabilities. It is understood and agreed that all liabilities relating to the
Assets that arise out of any act, event, or transaction of Buyer following the
Closing Date (the "Assumed Liabilities") shall be the responsibility of Buyer.
Seller shall not be required to defend any suit or claim arising out of any
Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due course
all such Assumed Liabilities, and subject to Section 13 hereof Buyer shall
protect and forever hold Seller harmless from all claims with respect to such
Assumed Liabilities.
3. Purchase Price.
(a) The purchase price for the Assets shall be the amount of
Four Hundred Eighty Nine Thousand Ninety Nine Dollars ($489,099.00) (the
"Purchase Price"). The Purchase Price shall be adjusted at the Closing by the
amount of any prorations derived by operation of Section 6 hereof, and for any
other normal income and expense items related to the operation of the Tower
Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price
shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the
Purchase Price, the Assumed Liabilities and other relevant items among the
Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Buyer and Seller will each report the federal, state, and
local and other tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
4. Delivery of Purchase Price.
(a) The Purchase Price shall be payable at Closing (as defined
in Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall deliver to
Seller at Closing an unsecured promissory note of Buyer in the aggregate
principal amount of Four Hundred Eighty Nine Thousand Ninety Nine Dollars
($489,099.00), substantially in the form of Exhibit B (the "Purchase Note").
5. Transfer of Tower; Title Insurance.
(a) Transfer of title to the Land shall be by deed from the
Seller to the Buyer (a "Deed"), which Deed shall be in the form of Exhibit C
attached hereto and incorporated herein. Transfer of ownership of the Towers and
assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be
pursuant to the Assignment, Xxxx of Sale and Assumption Agreement
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from the Seller to Buyer in the form of Exhibit D attached hereto and
incorporated herein (the "Assignment, Xxxx of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of
all liens, encumbrances other than Permitted Encumbrances, if any; otherwise the
title to the Land shall be good and marketable or such as will be insured by a
reputable title insurance company at regular rates. "Permitted Encumbrances"
shall mean: (i) encumbrances for taxes, assessments, or governmental charges or
levies which are not yet due and payable, or that, subject to adequate security
for payment, are being contested; (ii) existing building restrictions,
ordinances, easements of roads, privileges, or rights of public service
companies or other rights of way, other restrictions or conditions of record, if
any or other encumbrances disclosed in this Agreement (including the Exhibits
attached hereto); (iii) easements, rights of way or other encumbrances that do
not have a material adverse effect on the Assets or the operation of the
business relating to the Assets as currently operated; (iv) encumbrances imposed
by law, such as materialmen's, mechanic's, carrier's, workmen's, or repairmen's
liens or other similar encumbrances attaching in the ordinary course of business
or securing obligations that are not overdue; (v) encumbrances securing
indebtedness, which will be removed prior to or at the Closing; and (vi)
encumbrances pursuant to contracts and leases to be assumed by Buyer pursuant to
Section 2.
(c) As soon as practicable following the Closing, or at such
other time as the parties agree, Seller, at its expense, shall obtain and
deliver to Buyer a commitment for title insurance (the "Title Commitment")
issued by a nationally recognized title company in the ALTA Owner's Form Policy
of Title Insurance (each a "Title Policy" and collectively, "Title Policies")
covering each tract of Land, setting forth the current status of title thereto,
showing all recorded liens, claims, encumbrances, easements, rights-of-way,
encroachments, reservations, restrictions and any other matters of public record
affecting title to the Land pursuant to which such title company agrees to issue
to Buyer the Title Policies. The cost of the Title Policies shall be borne by
the Buyer. Seller shall execute such customary documents as the title company
reasonably requests, including, but not limited to, an affidavit of debts and
liens and customary closing statements.
(d) Buyer and Seller acknowledge that the 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 and that
one such lease also leases a portion of the real property within the Tower Site
(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 lease payment
from tenants pursuant to Tower Leases for rent that accrued prior to Closing,
Buyer shall remit such lease payment promptly to Seller. Conversely, in the
event Seller receives after Closing any lease payments from tenants pursuant to
the Tower Leases for rent that accrued after Closing, Seller shall remit such
lease payments promptly to Buyer.
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6. Apportionment of Real Estate Taxes, Rent, Utilities.
(a) Current real estate taxes, rent, utilities and all other
normal income and expense items related to the Assets shall be apportioned
between the parties to reflect the principle that all expenses and income
arising from the operation of the Assets up through the Adjustment Time shall be
for the account of Seller, and all expenses and income arising from the
operation of the business relating to the Assets acquired by Buyer after the
Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at
such other time as the parties agree, Buyer shall deliver to Seller a
certificate from Buyer which sets forth as of the Adjustment Time, all
adjustments to be made as provided in Section 6(a) above (the "Buyer's
Certificate"). Buyer shall provide Seller or its representatives access to
copies of such portions of books and records Seller may reasonably request
solely for the purposes of verifying such adjustments. The Buyer's Certificate
shall be final and conclusive unless objected to by Seller in writing within
ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach
agreement as to the amount of the adjustments to be made hereunder within thirty
(30) days after receipt of such written objection, which agreement, if achieved,
shall be binding upon all parties to this Agreement and not subject to dispute
or review.
(c) In the event of a disagreement between Buyer and Seller
with respect to the accounting to be made hereunder, the parties agree that a
public accounting firm chosen jointly by Buyer and Seller shall be the final
arbiter of such disagreement.
(d) Any amounts due for the adjustments provided for herein
shall be paid within thirty (30) business days after final determination.
7. Expenses.
(a) Seller and Buyer shall share equally the costs of
preparation of the Deeds, acknowledgement of the Deeds, Federal, state and local
revenue stamps, and real estate transfer taxes.
(b) All other costs and expenses incurred by the Parties in
this transaction, including, but not limited to attorneys' fees, shall be paid
by the party incurring them.
8. Closing; Closing Conditions.
(a) Closing of the transactions contemplated by this Agreement
(the "Closing") shall occur at a place and time mutually agreeable to Seller and
Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort
to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Buyer being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or
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warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date, (ii) all consents of
third parties required for Buyer to consummate the transactions contemplated
under this Agreement shall have been obtained, (iii) no order, decree or
judgment of any court, agency or other governmental authority shall have been
issued based on or arising out of the conduct, action, inaction, qualifications
or status of Buyer or any of its affiliates, which would render it unlawful as
of the Closing Date to effect the transactions contemplated by this Agreement in
accordance with its terms, (iv) the delivery by Buyer of the Purchase Price in
the manner set forth in Section 4(b), and (v) the delivery by Buyer of Buyer's
Closing Documents (as defined in Section 9 hereof) on or before the Closing
Date.
(c) Buyer's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Seller being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specific date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Seller to consummate the transactions contemplated under this Agreement
shall have been obtained, (iii) no order, decree or judgment of any court,
agency or other governmental authority shall have been issued based on or
arising out of the conduct, action, inaction, qualifications or status of Seller
or any of its affiliates, which would render it unlawful as of the Closing Date
to effect that transactions contemplated by this Agreement in accordance with
its terms, and (iv) the delivery by Seller of Seller's Closing Documents as set
forth in Section 9 hereof.
9. Closing Deliveries.
(a) At Closing, Seller shall execute and/or deliver to Buyer
the following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Xxxx of Sale and Assumption
Agreement;
(iii) A certificate from an officer of Seller reasonably
acceptable to Buyer confirming the accuracy of the
representations and warranties in Section 10 as of
the Closing Date;
(iv) Authorizing resolutions or minutes from Seller
approving this Agreement and the transactions
contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not
a "foreign person" (as defined in Section 1445(f)(3)
of the Code and the regulations issued thereunder);
and
(vi) A lease agreement, by and between Buyer, as lessor,
and Seller, as lessee, substantially in the form of
Exhibit F (the "Lease Agreement").
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(b) At Closing, Buyer shall execute and/or deliver to Seller
the following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this
Agreement and the transactions contemplated herein;
and
(ii) A certificate from an officer of Buyer reasonably
acceptable to Seller confirming the accuracy of the
representations and warranties in Section 11 as of
the Closing Date;
(iii) The Purchase Note executed by a duly authorized
officer of Buyer;
(iv) A lease agreement, by and between Buyer, as lessor,
and Seller, as lessee, substantially in the form of
Exhibit F (the "Lease Agreement"); and
(v) the Assignment, Xxxx of Sale and Assumption
Agreement.
(c) Seller's Closing Documents and Buyer's Closing Documents
shall be collectively called herein the "Closing Documents". Buyer and Seller
agree that such other documents as may be legally necessary or appropriate to
carry out the terms of this Agreement or as reasonably requested by the other
party shall be executed and delivered by the appropriate party at Closing.
10. Representations and Warranties of Seller.
As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Towers and the
Land (or such condition of title as will be insured by any reputable title
insurance company at their regular rates), and the Assets are free and clear of
liens, encumbrances, restrictions and security interests other than Permitted
Encumbrances.
(b) Seller has full power and authority to execute and deliver
this Agreement and Seller's Closing Documents, and to perform its obligations
hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when
executed and delivered, will constitute valid and binding agreements of Seller,
enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with,
or result in, a breach of the terms of any agreements or instruments to which
the Seller is a party or which would result in the creation or imposition of any
lien, charge or encumbrance on, or give to others any interest in or right to,
any of the Assets.
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(e) Seller has paid or will pay, at or prior to Closing, all
outstanding obligations for utilities and taxes through the Closing Date except
for such items as are covered by the proration of items of income and expense as
set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing
with, any person, entity, or authority will be required in connection with the
execution and delivery of this Agreement or the transactions contemplated by
this Agreement.
(g) Assuming all consents and approvals required for Seller to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Seller's
compliance with, the terms and provisions of this Agreement will conflict with,
or result in, a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Seller, or any judgment, order,
injunction, decree, regulation, or ruling of any court or any other governmental
authority to which Seller is subject or any material agreement or contract to
which Seller is a party or to which it is subject, or constitute a material
default thereunder.
(h) Seller is not a foreign person within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the
regulations issued thereunder.
11. Representations and Warranties of Buyer.
As a material inducement to Seller to enter into this Agreement, Buyer
represents and warrants to Seller as follows:
(a) Buyer has full power and authority to execute and deliver
this Agreement and Buyer's Closing Documents, and to perform its respective
obligations hereunder and thereunder.
(b) This Agreement and Buyer's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Buyer enforceable
against Buyer, in accordance with their terms.
(c) Assuming all consents and approvals required for Buyer to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Buyer's
compliance with, the terms and provisions of this Agreement will conflict with
or result in a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Buyer or any judgment, order, injunction,
decree, regulation, or ruling of any court or any other governmental authority
to which Buyer is subject or any material agreement or contract to which Buyer
is a party or to which it is subject, or constitute a material default
thereunder.
12. Representations and Warranties Survive Closing.
All of the provisions of this Agreement and of the Closing Documents and
all of the representations, warranties, considerations, and agreements contained
herein and in the
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Closing Documents shall survive Closing and continue in full force and effect
for a period of twelve (12) months from the Closing Date; provided that if a
claim for indemnification is made by either party under Section 13 hereof within
such twelve (12) month period, the provisions of Section 13 shall survive until
resolution of such claim. No claim may be brought under this Agreement unless
written notice describing in reasonable detail the nature of the claim is given
on or prior to the last day of the twelve (12) month period following the
Closing Date.
13. Indemnification.
(a) Seller shall indemnify, defend, and hold Buyer, its
affiliates, partners, employees, officers, directors, agents, and
representatives harmless from and against any and all reasonable losses, costs,
expenses, liabilities, penalties, claims, and other damages including, but not
limited to, reasonable attorney's fees and other costs and expenses, including
reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or
warranties, or the breach of any other provision
contained in this Agreement;
(ii) nonfulfillment by Seller of any of its covenants or
agreements contained herein or in any Seller's
Closing Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages resulting
from Sellers' operations or ownership of any Tower
Site prior to the Closing Date, including any and
all liabilities arising under the Assets which
relate to events occurring prior to the Closing
Date.
(b) Buyer shall indemnify, defend and hold Seller, its
affiliates, employees, officers, directors, agents and representatives harmless
from and against any and all losses, costs, expenses, liabilities, penalties,
claims, and other damages, including but not limited to, reasonable attorney's
fees and other costs and expenses, including reasonable costs of investigations,
reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties,
or the breach of any other provision contained in
this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or
agreements contained herein or in any Buyer's
Closing Document;
(iii) the Assumed Liabilities;
(iv) any and all losses, liabilities or damages resulting
from Buyer's operations or ownership of any Tower
Site
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subsequent to the Closing Date, including any and
all liabilities arising under the Assets which
related to events occurring subsequent to the
Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified
Party") becomes aware of circumstances which would entitle such party to
indemnification by the other party hereunder (the "Indemnifying Party"), the
Indemnified Party shall give the Indemnifying Party prompt written notice, with
reasonable detail, of such claim. Upon receipt of such notice by the Indemnified
Party to the Indemnifying Party, the Indemnifying Party shall have the option of
defending against such pending litigation through engagement of legal counsel of
its choice, provided, however, that the Indemnifying Party's choice of legal
counsel must be acceptable to the Indemnified Party in its reasonable
discretion. In the event the Indemnifying Party elects to defend, the
Indemnifying Party shall keep the Indemnified Party fully informed on a timely
basis of the status of the pending litigation. In the event that the
Indemnifying Party elects to defend and is unsuccessful in such defense, it
shall promptly pay to the Indemnified Party any and all losses, costs, expenses,
liabilities, penalties, claims and other damages as described above, including
but not limited to, reasonable attorney's fees and other costs and expenses
associated with the pending litigation being so defended. In the event the
Indemnifying Party elects not to defend and the Indemnified Party defends, but
is unsuccessful, then the Indemnifying Party shall promptly pay to the
Indemnified Party any and all losses, costs, expenses, liabilities, penalties,
claims and other damages, as described above, including, but not limited to,
reasonable attorney's fees and other costs and expenses incurred, including
reasonable costs of investigation. In the event that Indemnifying Party elects
not to defend and the Indemnified Party defends successfully, then the
Indemnifying Party shall promptly pay to the Indemnified Party any and all costs
and expenses incurred, including, but not limited to, reasonable attorney's fees
and other costs and expenses incurred, including reasonable costs of
investigation. The Indemnifying Party shall reimburse the Indemnified Party upon
demand for any payment made by the Indemnified Party at any time after Closing,
based on the final judgement of any court of competent jurisdiction or pursuant
to a bona fide compromise or settlement of claims, demands or actions in respect
to any damages to which the foregoing indemnification relates.
(d) Limitations on Seller Indemnification. Notwithstanding
anything in this Agreement to the contrary, Seller's obligation to indemnify
Buyer shall be subject to all of the following limitations:
(i) The amount of any losses, costs, expenses,
liabilities, penalties, claims, and other damages
("Losses") incurred by Buyer shall be reduced by (A)
the amount Buyer recovers (after deducting all
attorneys' fees, expenses, and other out-of-pocket
costs of recovery) from any insurer or other party
liable for such Losses, and Buyer shall use
commercially reasonable efforts to effect any such
recovery and (B) any tax benefit realized by Buyer
or its owners as a result of any such Loss.
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(ii) Buyer shall be entitled to indemnification only for
Losses as to which Buyer has given Seller written
notice describing in reasonable detail the nature
and basis for such indemnification ("Notice of
Claim") on or prior to the first anniversary of the
Closing Date.
(iii) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to Fifty Thousand
Dollars ($50,000.00) and Seller shall have no other
liability or responsibility for indemnification
hereunder.
(e) Buyer's Exclusive Remedy. Subsequent to the Closing,
indemnification under this Section 13 shall be the exclusive remedy of Buyer
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
(f) Limitation on Buyer's Indemnification. Notwithstanding
anything in this Agreement to the contrary, Buyer's obligation to indemnify
Seller shall be subject to all of the following limitations:
(i) The amount of any Losses incurred by Seller shall be
reduced by (A) the amount Seller recovers (after
deducting all attorneys' fees, expenses and other
out-of-pocket costs of recovery) from any insurer or
other party liable for such Losses, and Seller shall
use commercially reasonable efforts to effect any
such recovery and (B) any tax benefit realized by
Buyer or its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for
Losses as to which Seller has given Buyer a Notice
of Claim on or prior to the first anniversary of the
Closing Date.
(iii) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Fifty Thousand
Dollars ($50,000.00) and Buyer shall have no other
liability or responsibility for Indemnification
hereunder.
(g) Seller's Exclusive Remedy. Subsequent to the Closing,
indemnification under this Section 13 shall be the exclusive remedy of Seller
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
14. Termination; Liquidated Damages
(a) Right of Termination. This Agreement may be terminated
prior to Closing:
(i) By written notice from a party that is not then in
material breach of this Agreement if:
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(A) The other party has continued in material
breach of this Agreement for twenty (20) days
after written notice of such breach from the
terminating party;
(B) Closing does not occur by May 31, 2000 or
such other date as is mutually agreed to by
Buyer and Seller.
(b) Obligations Upon Termination.
(i) Upon termination of this Agreement, each party shall
thereafter remain liable for breach of this
Agreement prior to such termination and remain
liable to pay and perform any obligation under
Section 13.
(ii) If Closing shall not have occurred, Seller's sole
remedy at law or in equity for any breach or default
by Buyer described in Section 14(a)(i)(A) shall be
the termination by Seller of this Agreement by
giving of written notice to Buyer pursuant to
Section 14(a)(i)(A).
(c) Termination Notice. Each notice given by a party pursuant
to Section 14(a) to terminate this Agreement shall specify the subsection of
Section 14(a) pursuant to which such notice is given. If at the time a party
gives a termination notice, such party is entitled to give such notice pursuant
to more than one subsection of Section 14(a), the subsection pursuant to which
such notice is given and termination is effected shall be deemed to be the
subsection specified in such notice provided that the party giving such notice
is at such time entitled to terminate this Agreement pursuant to the specified
subsection.
15. Default; Disputes.
If Seller fails to perform under this Agreement, the Buyer may exercise
any right he has against the Seller, including bringing an action for specific
performance. The remedies provided by this Section are in addition to any right
or remedies provided elsewhere in this Agreement or at law or in equity. In the
event a dispute arises between the Parties over the interpretation of this
Agreement, or the performance, alleged non-performance or breach by either Party
hereunder, the Parties hereby agree to seek resolution of such dispute in good
faith through an alternative dispute resolution process mutually agreeable to
the Parties prior to the institution of any legal proceedings related thereto.
16. Liabilities.
Buyer shall not, in connection with the purchase and sale of Assets
contemplating herein, assume any liabilities or obligations of the Seller except
as specifically set forth herein.
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17. Third Party Brokerage.
Seller and Buyer hereby represent and warrant to each other that neither
Seller or Buyer has dealt with any broker or finder in connection with the
transaction which is the subject of this Agreement. Each party hereby agrees to
indemnify, save harmless and defend the other from and against all claims,
losses, liabilities and expenses, including reasonable attorney's fees, arising
out of any claim made by any broker, finder or other intermediary who claims to
have dealt with such party in connection with the transaction which is the
subject of this Agreement. The provisions of the paragraph shall survive Closing
hereunder.
18. Entire Agreement.
This Agreement (which includes the exhibits and schedules attached
hereto) constitutes the entire agreement between the Parties and there are no
other understandings, representations or warranties, oral or written, relating
to the subject matter hereof.
19. Amendment.
This Agreement may not be changed, modified or amended, in whole or in
part, except in writing, signed by all parties.
20. Notice.
Notices given pursuant to this Agreement shall be in writing and shall be
given by actual delivery or by mailing the same to the party entitled thereto at
the addresses set forth below or at any such other address as any Party may
designate in writing to any other Party pursuant to the provisions of this
Section. Notice given by mail shall be sent by United States mail, certified or
registered, return receipt requested or by nationally recognized courier
serviced providing receipt of delivery. Notices shall be deemed to be received
on the date of actual receipt, in the case of personal delivery, or on the date
of mailing, in the case of mailing. Notices shall be served or mailed to the
following addresses, subject to change as provided above:
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If to the Seller: Xxxxxxx Broadcasting of Eastern North Carolina, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Buyer: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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
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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.
30. Covenant of Seller.
Seller shall make all reasonable efforts to resolve any title or
restriction issues prior to the Closing, but will continue these efforts
subsequent to the Closing to the extent reasonably necessary.
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15
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound,
have caused this Agreement to be duly executed on the day and year first written
above.
SELLER:
XXXXXXX BROADCASTING OF EASTERN
NORTH CAROLINA, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By:
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
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INDEX OF EXHIBITS
Exhibit A Description of Land and Towers
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Xxxx of Sale and Assumption
Agreement
Exhibit E Form of Lease Agreement
17
EXHIBIT A
DESCRIPTION OF LAND AND TOWERS
WKML-FM
(1) That certain communications tower manufactured by Stainless and (2) that
certain communications tower manufactured by Sabre, both such towers situated on
that certain tract of land more particularly described as follows:
Lying and being in Saddletree Township, Xxxxxxx County, North Carolina, about
4.2 miles southwest of the Town of St. Pauls, about 8 miles southeast of the
Town of Red Springs, about 0.3 miles northeast of the intersection of Secondary
Road No. 1318 with Secondary Road No. 1763, and on the southeast side of and
adjoining paved Xxxxxxxxx Xxxx Xx. 0000. Bounded on the northwest by Peacock's
Furniture of Laurinburg, Inc. and Xxxxxxxxx Xxxx Xx. 0000 and on all other sides
by other lands of the parties of the first part, and being more particularly
described as follows:
BEGINNING at an existing concrete monument 116.99 feet southeast of the
centerline of paved Secondary Road No. 1318, said monument being a corner of the
original tract and also having North Carolina Grid Coordinates of N-375,950.15
feet and E-1,986,107.94 feet, and runs thence as a new line, South 51 degrees 08
minutes 10 seconds East 1,183.72 feet to an iron rod; thence as another new
line, South 38 degrees 51 minutes 50 seconds West 975.00 feet to an iron rod,
pine pointer; thence as another new line, North 51 degrees 08 minutes 10 seconds
West 1183.72 feet to an iron rod in the original line, said iron rod being 13.86
feet southeast of the centerline of paved Xxxxxxxxx Xxxx Xx. 0000, and also
being located North 56 degrees 10 minutes 50 seconds East 1377.65 feet from a
nail at the centerline intersection of paved Secondary Road No. 1318 with
Xxxxxxxxx Xxxx Xx. 0000; thence as the original northwestern line of the tract
of which this is a part, North 38 degrees 51 minutes 50 seconds East 119.44 feet
to a nail in the centerline of paved Xxxxxxxxx Xxxx Xx. 0000; thence as the
centerline of said road, North 45 degrees 28 minutes 50 seconds East 100.00 feet
to a nail; thence North 43 degrees 59 minutes 30 seconds East 100.00 feet to a
nail; thence North 39 degrees 35 minutes 05 seconds East 100.00 feet to a nail;
thence North 34 degrees 20 minutes 50 seconds East 100.01 feet to a nail; thence
North 28 degrees 40 minutes East 78.20 feet to a nail in the intersection of
said centerline with the original line; thence as said original line, North 38
degrees 51 minutes 50 seconds East 379.98 feet to the BEGINNING, containing
26.34 acres as surveyed by Xxxxxx X. Paris and Associate in June, 1983 using
North Carolina Grid Meridian and EXCEPTING NEVERTHELESS a fenced cemetery plot
known as the "Old Carlyle Cemetery" and being more particularly described as
follows: BEGINNING at an iron fence post, said post being located South 9
degrees 48 minutes 40 seconds East 412.82 feet from a concrete monument, the
beginning a northern most corner of the above described 26.34 acre tract, and
runs thence as the southeastern fence line of said cemetery, South 31 degrees 11
minutes 50 seconds West 53.4 feet to an iron fence post; thence North 58 degrees
48 minutes 10 seconds West, with and beyond a fence, 25 feet to a point; thence
North 31 degrees 11 minutes 50 seconds East 53.4 feet to a point; thence to and
with an old fence South 58 degrees 48 minutes 10 seconds East 25 feet to the
BEGINNING.
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The property hereinabove described was acquired by Grantor by Deed dated
February 15, 1985, recorded March 11, 1985, in Book 573 Page 0914 in the Xxxxxxx
County, North Carolina Registry.
The real property conveyed hereby is exclusive of the building situated thereon
and owned by Xxxx South, Inc., a tenant leasing space on the tower manufactured
by Sabre.
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EXHIBIT B
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$489,099.00 February ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value
received, promises to pay to the order XXXXXXX BROADCASTING OF EASTERN NORTH
CAROLINA, INC. a North Carolina Corporation, ("Payee"), the principal amount of
FOUR HUNDRED EIGHTY NINE THOUSAND NINETY NINE DOLLARS ($489,099.00), 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, THREE THOUSAND SEVEN HUNDRED THREE DOLLARS
AND EIGHTY FIVE CENTS ($3,703.85.00). All remaining principal, together with
accrued and unpaid interest thereon shall be due and payable on the "Maturity
Date" (defined below). Each monthly payment shall be credited first to interest
then accrued and the remainder, if any, to principal, and interest shall
thereupon cease to accrue upon the principal paid.
(c) Payment on Maturity Date. The principal balance of, and any
accrued and unpaid interest on, this Note shall be payable twenty (20) years
from the effective date of this Note (such date the "Maturity Date").
(d) Prepayment.
(i) Payor may, at its option at any time, without
premium or penalty, prepay all or any portion of
this Note.
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(ii) Any prepayment of this Note shall be applied as
follows: first, to payment of accrued interest; and
second, to payment of principal.
2. Events of Default.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this
Note when the same shall become due and payable (whether at maturity or
otherwise) and the continuation of such failure for a period of ninety (90)
days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or
for all or any substantial portion of its property
or assets;
(iv) makes a general assignment for the benefit of its
creditors; or
(c) an involuntary case or proceeding is commenced against
Payor under any Bankruptcy Law and is not dismissed, bonded or discharged within
ninety (90) days thereafter, or a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case
or proceeding;
(ii) appoints a Custodian of Payor or for all or
substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case
the order or decree remains unstayed and in effect
for ninety (90) days.
(d) The following terms used in this Note have the meanings
assigned below:
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
federal, state or foreign law for the relief of debtors or any arrangement,
reorganization, assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of Payor.
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21
"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, 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:
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If to Payor, addressed to:
Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Payee, addressed to:
Xxxxxxx Broadcasting of Eastern North Carolina, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other party.
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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
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EXHIBIT C
FORM OF DEED
25
EXHIBIT D
FORM OF ASSIGNMENT, XXXX OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Xxxx of Sale and Assumption Agreement (this "Agreement") is
made effective as of 12:01 a.m. Eastern Time, on the ____ day of February, 2000
by and between XXXXXXX BROADCASTING OF EASTERN NORTH CAROLINA, INC. ("Seller")
and XXXXXXX FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset
Purchase Agreement") dated as of February ___, 2000 by and between Seller and
Purchaser. Capitalized terms used but not defined herein shall have the meanings
given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell,
convey and assign to Purchaser all of Seller's right, title and interest to the
Tower and Tower Leases and Purchaser shall assume the Assumed Liabilities, as
defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto agree as follows (capitalized terms used herein but not defined
herein shall have the meaning given to them in the Asset Purchase Agreement):
1. Seller hereby bargains, sells, conveys, assigns and
delivers all of Seller's right, title and interest in and to:
a. The 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
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documents to be executed by Seller or Purchaser, as the case may be, in addition
to this Agreement, in form and substance reasonably satisfactory to the other
party, as such other party may reasonably deem necessary or desirable so as (i)
to vest in Purchaser title to and possession of the Assigned Assets and (ii) to
perfect and record, if necessary, the sale, assignment, conveyance, transfer and
delivery to Purchaser of the Assigned Assets.
5. This Agreement is made pursuant to, and is subject to all
of the terms, representations, warranties and covenants of, the Asset Purchase
Agreement, the terms of which are hereby incorporated by reference. In the event
of any conflict between this Agreement and the Asset Purchase Agreement, the
terms of the Asset Purchase Agreement shall govern.
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IN WITNESS WHEREOF, Seller and Purchaser have executed and
delivered this Agreement as of the day and year first written above.
SELLER:
XXXXXXX BROADCASTING OF EASTERN
NORTH CAROLINA, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By:
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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EXHIBIT E
FORM OF LEASE AGREEMENT
29
LEASE AGREEMENT (O&O - WKML-FM)
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000 by
and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and
XXXXXXX BROADCASTING OF EASTERN NORTH CAROLINA, INC., a North Carolina
corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns two communications towers described on Exhibit A
attached hereto, (the "Towers"), together with other improvements on a certain
tract of real estate located at Saddletree Township, North Carolina, as such
land is more fully described in Exhibit B attached hereto (hereinafter referred
to as the "Tower Site"; the term "Tower Site" shall also include any appurtenant
easements or improvements on such land, including, without limitation, any
buildings or other structures, but not including that certain transmitter
building owned by a tenant of Lessor);
WHEREAS, Lessor desires to lease the Tower Site and space on the Towers
for the purpose of Lessee's radio transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and space on the Towers
from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 COMMENCEMENT OF TERM. The term of this Lease and the
payment of rent and other performances in accordance with the terms of this
Lease shall commence on the date hereof.
1.02 EXHIBITS. All Exhibits referred to in this Lease are
incorporated herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 LEASED PREMISES. Lessor hereby leases to Lessee, and Lessee
leases from Lessor, with a right of access thereto and parking therefor in
accordance with Section 9:
(a) Space on the Towers, as more fully described in
Exhibit C hereto, for the purpose of the broadcast transmission of WKML-FM,
Saddle Township, North Carolina; and
30
(b) Space in the transmitter building owned by Lessor
and located on the Tower Site, as such space is more fully described in Exhibit
D hereto (the "Transmitter Building") for the purposes of the housing, operation
and maintenance of Lessee's transmitter and related equipment (such space
"Lessee's Building Space");
(c) All of the property leased under this Paragraph 2.01
shall hereinafter be called the "Leased Premises".
2.02 OWNERSHIP OF PROPERTY; ACCESS.
(a) Except for "Lessee's Property" (as defined below),
all tenant improvements including all fixtures and trade fixtures shall become
the property of the Lessor, and shall remain with the Leased Premises after the
Lessee vacates same.
(b) The Lessee's antenna, transmission line, and other
equipment, including, without limitation, an electrical power generator,
together with any replacements thereof and modifications and additions thereto,
which are permitted hereunder, shall be and remain lessee's property, and are
hereinafter referred to as "Lessee's Property". Lessee will be solely
responsible for the maintenance of Lessee's Property, including all expenses
associated with such repair.
(c) Lessee shall have reasonable right of access to the
Leased Premises at all times in emergency situations and whenever reasonably
necessary for equipment maintenance and repair. Lessee shall also have
reasonable rights of access at any time to the Leased Premises for ingress,
egress, utilities, the locating and usage of cabling and related equipment,
operations, maintenance, repair or remodeling, or other engineering purposes.
3. PERMITTED USES.
3.01 BY LESSEE.
(a) Subject to all appropriate government approvals,
including the Federal Communications Commission ("FCC"), the Leased Premises may
be used only for radio activities related to the operation of radio broadcast
stations. Such operations, shall be conducted in accordance with the standards
imposed by the FCC and any other governmental body with authority over such
transmission and operations.
(b) Except as expressly permitted by this Lease and
unless prior written approval of Lessor has been given, Lessee shall not
construct or make any improvements or install any equipment on the Towers.
Lessee may repair and maintain equipment as it reasonably deems necessary to its
operations within Lessee's space in all respects in compliance with the terms
hereof. Lessee's space on the Towers, Lessee's Building Space, Lessee's interior
and exterior equipment, and all other improvements shall be maintained in an
orderly and professional manner.
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3.02 BY LESSOR.
(a) Subject to the rights elsewhere granted to Lessee in
this Lease and with prior notice to Lessee and no loss of service or
interruption (beyond a temporary, non-recurring and de minimis amount), Lessor
reserves the right to use the Towers, at its own expense, as it sees fit and to
fasten additional equipment to the Towers for any purpose, including the right
to install transmitting and/or receiving antennas of others; provided that
Lessor shall use 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 Towers 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 Towers to be conducted by a reputable
mechanical consultant chosen by Lessor in order to ensure that any such
additions conform to recognized engineering standards.
(c) Except as expressly provided for herein, Lessor
shall have no liability for any action or omission taken in exercise of its
rights hereunder upon reasonable reliance on recommendation of its engineering
personnel.
(d) Subject to the terms of this Lease, Lessor also
reserves the right to erect one (1) or more additional towers on the Tower Site.
4. TERM.
4.01 TERM. This Lease shall have a term of twenty (20) years
from the Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 RENTAL. Lessee shall pay rent for each consecutive
twelve-month period beginning on the Commencement Date (each a "Lease Year")
during the term of this Lease. Such rental payment shall be payable in equal and
successive monthly installments in advance beginning with the Commencement Date
and continuing thereafter on the first day of each month during the term of this
Lease, such rental payments to be made according to the following schedule:
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---------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
---------------------------------------------------
1 $44,446.20 $3,703.85
---------------------------------------------------
2 $44,446.20 $3,703.85
---------------------------------------------------
3 $44,446.20 $3,703.85
---------------------------------------------------
4 $44,446.20 $3,703.85
---------------------------------------------------
5 $44,446.20 $3,703.85
---------------------------------------------------
6 $44,446.20 $3,703.85
---------------------------------------------------
7 $44,446.20 $3,703.85
---------------------------------------------------
8 $44,446.20 $3,703.85
---------------------------------------------------
9 $44,446.20 $3,703.85
---------------------------------------------------
10 $44,446.20 $3,703.85
---------------------------------------------------
11 $44,446.20 $3,703.85
---------------------------------------------------
12 $44,446.20 $3,703.85
---------------------------------------------------
13 $44,446.20 $3,703.85
---------------------------------------------------
14 $44,446.20 $3,703.85
---------------------------------------------------
15 $44,446.20 $3,703.85
---------------------------------------------------
16 $44,446.20 $3,703.85
---------------------------------------------------
17 $44,446.20 $3,703.85
---------------------------------------------------
18 $44,446.20 $3,703.85
---------------------------------------------------
19 $44,446.20 $3,703.85
---------------------------------------------------
20 $44,446.20 $3,703.85
---------------------------------------------------
5.02 PAYMENT OF RENTALS. Rentals to be paid hereunder shall be
paid monthly in lawful money of the United States of America and shall be paid
in advance on the first day of each month during the term of this Lease by the
Lessee by crediting the payment owed to Lessee by Lessor under that certain
Promissory Note made by Lessor in favor of Lessee dated ________, 2000, on the
first day of each month during the term of the Lease. In the event of prepayment
of the Promissory Note by Lessor or other action resulting in amounts equal to
any monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may in
writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
5.03 ELECTRICITY AND OTHER UTILITIES. In addition to the
payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its
own telephone lines and service, electrical service (including electrical
service to the Towers used by Lessee as measured by a separate electrical meter
at Lessee's expense). Lessor shall pay for the electrical service to the Towers
for the Towers lighting.
6. AUTHORITY.
6.01 QUIET ENJOYMENT. Lessor represents and warrants that it has
the full power and authority to enter into this Lease, and covenants and agrees
that Lessee, upon paying the rents described herein and observing and keeping
the covenants, agreements, and
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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 the Transmitter Building except that
Lessee shall obtain, at its own expense, any and all necessary licenses or
permits from such governmental authorities as shall have jurisdiction in
connection with the (b) the operations, installation, repair, alteration, or
replacement of Lessee's equipment (including, without limitation, Lessee's
antenna and transmission and/or receiving equipment and generator); or (c) with
any of Lessee's activities thereon or contemplated by this Lease. At Lessor's
request, Lessee shall furnish Lessor with copies of same, and shall abide by the
terms and provisions of such licenses and permits.
8. MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
(a) Lessee, at its own cost and expense, shall maintain
and repair Lessee's Property, including specifically its antenna, related
equipment, transmission lines, transmitters, and other equipment. Lessor shall
perform the same tasks with respect to the Towers and Transmitter Building. All
such maintenance shall be conducted by the parties in accordance with good
engineering standards and in conformity with the requirements of the FCC or any
other body having jurisdiction over the Lessee and its property, including,
without limitation, any rules, regulations, or guidelines of the FCC
implementing the National Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of Lessor and Lessee shall
take all reasonable precautions to avoid interference or hindrance to and with
the operations of the other party hereto. In this regard, each party hereto
agrees to eliminate, without cost to the other party hereto, any interference or
hindrance to such other party's operation. Maintenance and repair of Lessee's
Property shall be performed only by a reputable contractor and in accordance
with the provisions of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's
Property during normal business hours upon reasonable notice to Lessee, except
that, in the event of an emergency, as determined by Lessor, Lessor may enter at
any time, giving notice of such emergency to Lessee as soon as is practical. In
the event that Lessor reasonably determines that Lessee has not maintained
Lessee's Property and equipment in good order and repair according to industry
standards, and that such repairs are necessary for the safety of the Towers, the
Transmitter Building, and the Tower Site, or the prevention of interference with
Lessor or any
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34
other user of the Towers or any other broadcaster, Lessor may, at its option,
make such emergency repairs to the Leased Premises as it deems reasonably
necessary, and any amount expended by Lessor therefor shall be reimbursed to it
by Lessee immediately upon presentation of a statement and shall be deemed
additional rent. Lessor shall not be liable for inconvenience, disturbance, loss
of business, or other damage to Lessee by reason of repairing any of Lessee's
Property which Lessee has failed to properly maintain.
(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, the Transmitter Building, and the
Tower Site, or the prevention of interference with Lessor, in violation of the
terms of this Agreement, Lessor shall so notify Lessee in writing, specifying
the maintenance and repairs required to be performed by Lessee. In the event
that, within ten (10) business days following such written notice (or such
longer period as may be reasonably necessary taking into account all facts and
circumstances), Lessee shall not have performed such maintenance and repairs,
Lessor may, at its sole option, make such repairs as it deems reasonably
necessary, and any amount expended by Lessor therefor shall be deemed additional
rent. Lessor shall not be liable for inconvenience, disturbance, loss of
business, or other damage to Lessee by reason of repairing the property and
equipment of Lessee which Lessee has failed to properly maintain.
(d) No work (including electrical work), except for
emergency repairs that Lessee shall perform to return to, or maintain the
station on air in the event of a failure, will be performed by the Lessee in
connection with the installation, alteration, maintenance, repair, or removal of
any of Lessee's transmission lines, antenna, and other equipment on the Towers
unless the Lessee submits to Lessor a copy of the proposed contract and also
detailed plans and specifications of the work to be done, and both the contract
and the plans and specifications have been approved in writing by Lessor not to
be unreasonably withheld, delayed or conditioned. Lessee, upon demand therefor
by Lessor, agrees to pay Lessor as additional rent all amounts reasonably
expended by Lessor in connection with review of any such contract, plans, and
specifications.
(e) With respect to any work to be performed by or on
behalf of Lessee in connection with the installation, alteration, maintenance,
repair, or removal of any equipment on the Towers (including any ascension of
the Towers), in the Transmitter Building, or in or about the Tower Site, Lessee
may only employ a contractor who has been approved in writing and in advance by
Lessor. Lessor agrees that it will not unreasonably withhold its approval of any
contractor who has the requisite experience and industry standard insurance
coverage and who will, at the sole option of Lessor, provide a bond to cover any
work which it has been retained to perform. Lessor agrees to consult on call in
any emergency situation and immediately give its approval or disapproval.
(f) All work by or on behalf of the Lessee or Lessor
shall be carried out (i) in a good and workmanlike manner; (ii) in accordance
with established engineering standards and public ordinances, rules, and
regulations applicable to such work, including, without limitation, any rules,
regulations, or guidelines of the FCC implementing the
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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
Leased Premises to Lessor in as good a condition as the same were received at
the commencement of the term, reasonable wear and tear and damage by fire or
other casualty beyond Lessee's reasonable control excepted.
9. USE AND MAINTENANCE OF COMMON PREMISES.
9.01 USE OF COMMON PREMISES. Lessee, at its own risk, shall have
the right to use in common with Lessor and its licensees, invitees, and other
tenants, and in connection with Lessee's permissible activities and operations
(a) any access road from any public highway to the Tower Site or to any building
on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common
areas in the Transmitter Building (such items (a), (b) and (c) called
collectively herein the "Common Premises").
9.02 MAINTENANCE OF COMMON PREMISES.
(a) Lessor shall maintain the Common Premises and any
fence around the Towers in good repair. Lessee shall comply with any security
policies reasonably established from time to time by Lessor.
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(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 Towers or any
building or structure constructed by Lessor on the Tower Site, any common areas,
or the leased spaces of other tenants, Lessor may, upon reasonable notice and
for the shortest practical period of time (except for emergency situations),
close entrance doors, common areas, drive-ways, rights-of-way, service areas,
parking areas, or any other facilities at its discretion without being liable to
Lessee; provided that if any of the above would restrict Lessee's ability to
broadcast, Lessor shall use reasonable efforts to restrict any closure or
interruption pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00
a.m.. The closing of entrances, doors, common areas, parking areas, or other
facilities for the making of the repairs, alterations, or improvements described
herein shall, under no circumstances, constitute an eviction of the Lessee or be
grounds for termination of this Lease or the withholding of any rental payments
or other payments or performances required to be paid or made by Lessee under
the terms hereof, provided, Lessor shall use reasonable efforts to ensure that
any action taken in accordance with this paragraph shall not adversely affect
the rights of Lessee hereunder. Under no such circumstances shall Lessee be
entitled to terminate this Lease nor shall it be entitled to compensation for
any loss or damage it may sustain (including loss of use, loss of
advertising/sponsorship revenues, and consequential damages) by reason of such
changes or alterations.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own expense, to
make such changes and alterations in the Lessee's Property situated on the
Towers, subject to Paragraph 8.01 and Paragraph 11 hereof, as its operations may
require, including the renovation, replacement, or removal of its antenna;
provided, however, that such changes or alterations conform with recognized
engineering standards and, if necessary, have been approved by the FCC and any
other authority having jurisdiction over Lessee; and provided further, that
plans and specifications are first submitted to and approved in writing by
Lessor. Lessee shall make no changes in the equipment or equipment position
without such approval, and Lessor shall not unreasonably fail to give such
approval within ten (10) business days.
(b) This Lease is based upon carefully computed tower
loading capacity. If any change proposed by Lessee in the type, location, or
positioning of Lessee's Property should, in Lessor's judgment, require a
computer or other type of feasibility study to determine the loading capacity of
the Towers, such study shall be performed by an engineer chosen by Lessor, and
approved by Lessee (such approval not to be unreasonably withheld, delayed or
conditioned) whose decision shall be final and binding upon both parties. The
cost of such study or any other costs reasonably incurred by Lessor in
determining the feasibility of any
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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 or
on the Towers after the date hereof, notification of the particulars of such
proposed installation shall be submitted to Lessor hereto and any other lessees
or users of space on the Towers whose names and addresses are supplied to Lessee
by Lessor in writing, and the Lessor and such other users will be requested to
advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days
after receipt of such notification, whether they have any reasonable objections
thereto on the grounds that objectionable interference may result; provided,
this Section 11.01 shall not apply to any currently installed Lessee's Property
or its replacement, maintenance or repair. If the Lessor or any other user shall
reasonably object within this period to such plans and Lessee is unwilling to
alter its plans to meet the objections, the dispute shall be submitted to an
independent professional engineer chosen by Lessor, and such engineers decision
shall be final and binding upon all parties. The cost of any such studies shall
be borne by Lessee.
11.02 INTERFERENCE WITH LESSOR, LESSEE, OR OTHERS.
Notwithstanding the provisions of Paragraph 11.01, should any change, after the
date hereof, in the facilities or mode of operation of Lessee or Lessee's
failure to comply with the Maintenance Standards, as defined in Paragraph 11.04,
cause any objectionable electrical or physical interference (including
interference from any other structure erected on the Tower Site) to the
television and/or radio broadcasting and/or receiving operations of any other
lessee, then, promptly after written notification of such interference, the
Lessee, at its sole expense, will take such steps as may be reasonably required
to correct such interference, including, but not limited to, changing frequency,
ceasing transmission, reducing power, and/or the installation of any filters or
other equipment, provided that, if such interference is caused, after the date
hereof, by the failure of the Lessor or any other lessee suffering the
interference to comply with the Maintenance Standards, as defined in Paragraph
11.04, then Lessor shall, or shall cause the other lessee suffering the
interference, at its sole expense, to comply with such Maintenance Standards.
Any dispute as to the cause of interference, or the steps reasonably required to
correct it, arising under this Paragraph 11.02, shall be submitted to an
independent professional engineer chosen by Lessor, and such engineer's decision
shall be final and binding upon the parties. If such interference is found to be
caused by such changed facilities or operation, the fees and charges of the
engineer to whom the dispute is referred shall be borne by the party whose
changed facilities or mode of operations gave rise to the claimed interference.
If such interference is found not to be caused by such changed facilities or
operations, the fees and charges of the engineer to whom the dispute is referred
shall be borne by the objecting party. All other leases and/or agreements to
lease space at the Tower Site shall contain this language.
11.03 INTERFERENCE BY OTHER USER. Any subsequent agreement under
which Lessor allows any other person to occupy any portion of the Towers, Tower
Site or any building on the Tower Site shall provide that, should the
installation, operation, or maintenance
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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 Towers, Tower Site or
any buildings on the Tower Site shall not cause any objectionable interference
with the operations of Lessee. Immediately upon notification of such
interference by Lessee, Lessor shall at its sole expense take such steps as may
be reasonably necessary to correct such interference, including, but not limited
to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filter or other equipment.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the purposes of
this Lease, compliance with "Maintenance Standards" shall mean that a tenant or
user of the Towers shall (a) maintain and operate its equipment in accordance
with the requirements, rules, regulations, and guidelines of the FCC, and the
standards of manufacturers of the equipment; and (b) maintain and operate its
equipment in accordance with good engineering practice.
12. UTILITIES.
12.01 UTILITIES. Subject to the required approvals and
cooperation of any governmental authority or public utilities, Lessee shall
arrange and be responsible for the installation and provision of electrical and
telephone lines serving Lessee's Property at any building on the Tower Site
owned by Lessor. Lessee shall be responsible for procurement of and payment for
all telephone services as described in Paragraph 5.03 and used by Lessee.
13. TAXES.
13.01 PAYMENT OF TAXES. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall pay all personal property or other taxes assessed or
imposed on Lessee's Property, and shall cooperate with Lessor to ensure that
such property is properly separated from that of Lessor or other tenants for
assessment purposes.
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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 the Towers elevator), with limits of liability for the term of this
Lease of not less than Five Million Dollars ($5,000,000.00) in the aggregate for
personal injury or death in any occurrence and not less than Five Million
Dollars ($5,000,000.00) to cover property damage, with a liability umbrella of
not less than One Million Dollars ($1,000,000.00). Certificates evidencing such
insurance shall be furnished to Lessor upon its request. The amounts specified
hereunder shall be revised every five (5) years to such amounts as Lessor may
reasonably require upon the advice of its insurance consultants. [Foregoing
obligation is subject to $200,000 12-month limit when aggregated with other
borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement].
14.02 CONTRACTOR LIABILITY. Lessee shall also cause the
contractors erecting, installing, or maintaining Lessee's Property or performing
any other work for Lessee on the Tower Site to procure reasonable public
liability insurance acceptable to Lessor and naming the Lessee and Lessor as
named insureds. Certificates evidencing such insurance shall be furnished to
Lessor in advance of any work being performed.
14.03 TOWERS AND TRANSMITTER BUILDING INSURANCE. Lessee shall
procure and maintain physical damage insurance on the Towers and any building on
the Tower Site used or leased by Lessee pursuant to this Lease in an amount
sufficient to repair or replace the Towers and any such building with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse,
explosion, aircraft and vehicle damage, vandalism, and malicious mischief.
Lessee shall be solely responsible for its insurance on Lessee's Property,
together with business interruption insurance.
14.04 TOWERS AND/OR TRANSMITTER BUILDING DAMAGE. In the event
that the Towers and/or the Transmitter Building are destroyed or damaged by
fire, lightning, windstorm, flood, earthquake, explosion, collapse, aircraft, or
other vehicle damage or other casualty covered by insurance, Lessor shall
promptly reconstruct or repair the Towers and/or the Transmitter Building
affected to such good condition as existed before the destruction or damage, and
give possession to Lessee of substantially the same space leased hereunder.
Lessee shall promptly pay over to Lessor any insurance proceeds it receives from
insurance policies Lessee is required to procure under Section 14.03 hereof for
the purpose of use by Lessor to fund reconstruction of the Towers and/or
Transmitter Building as required of Lessor under this Section 14.01. If the
Towers and/or the Transmitter Building are in need of such repair or is so
damaged by fire, lightning, windstorm, flood, earthquake, explosion, aircraft or
other vehicle damage, collapse, or other casualty that reconstruction or repair
cannot reasonably be undertaken without dismantling Lessee's antenna, then upon
written notice to Lessee, Lessor may remove any such antenna and interrupt the
signal activity of Lessee, but will use its best efforts to have the antenna
replaced as soon as reasonably possible. Lessor agrees to provide Lessee
alternative
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space, if available, on the Towers and/or in the Transmitter Building during
such reconstruction/repair period. If such space is not available, then Lessee
shall be responsible for procuring its own alternative space. No monetary or
other rental shall be due pursuant to the terms of this Lease for such time as
Lessee is unable to conduct its broadcasting activities on the 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 the Transmitter Building or (b) replace the Towers
and/or the Transmitter Building within one (1) year if Lessor has provided the
notice described in clause (a) above, of the date of destruction, or repair the
same within such shorter time period after the casualty as may be reasonable,
then Lessee, upon thirty (30) days' written notice to Lessor, may terminate this
Lease, provided if Lessor has provided the notice described in clause (a) above,
Lessee must make such election within one hundred twenty (120) days prior to the
expiration of said repair or replacement period. Lessee agrees that it shall
maintain adequate business interruption insurance at all times during the term
of this Lease to adequately protect it from any interruption of signal
activities due to damage to the Towers and/or Transmitter Building (including
costs of reinstallation of its equipment and lines), and Lessor shall have no
liability on account of such business interruption or reinstallation costs due
to damage or destruction under this paragraph.
15. EMINENT DOMAIN.
(a) In the event that all of the Tower Site (or any
portion of the Tower Site necessary for the Towers, guy wires, or other
appurtenances necessary to Lessee's broadcasting operations) is acquired or
transferred or condemned pursuant to eminent domain proceedings (or the threat
thereof), the obligation of the parties under this Lease shall be terminated as
of the date of acquisition or transfer. Lessor shall be entitled to the entire
condemnation award. If Lessor determines to build a new tower or towers or a new
transmitter building as a replacement for the Towers and/or Transmitter Building
on the condemned property, Lessor agrees to lease space to Lessee on the new
tower or towers and space in the new building reasonably comparable to the space
leased to Lessee pursuant to this Lease and on terms reasonably equivalent to
the terms of this Lease.
(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 Leased Premises within thirty (30) days of such
termination. Such removal shall be conducted in accordance with Paragraph 8.01
hereof Lessee shall promptly repair any and all damage caused by such removal.
Any of Lessee's Property remaining on the Leased Premises after the expiration
of the thirty (30) day period shall be deemed to be the property of Lessor,
which Lessor may have removed at Lessee's expense.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(a) If Lessee shall make default in making any payment
herein provided for and any such default shall continue for a period of ten (10)
business days after
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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 Leased Premises, or if
any proceedings shall be commenced for the reorganization of Lessee (which, in
the case of involuntary proceedings, are not dismissed or stayed within 30 days
of the commencement thereof), or if the leasehold estate created hereby shall be
taken on execution or by any process of law, or if Lessee shall admit in writing
its inability to pay its obligations generally as they become due, then Lessor
may, at its option, terminate this Lease without notice, and declare all amounts
due or to become due hereunder immediately due and payable, and Lessor's agents
and servants may immediately, or any time thereafter, reenter the Leased
Premises by reasonably necessary force, summary proceedings, or otherwise, and
remove all persons and properly therein, without being liable to indictment,
prosecution, or damage therefor, and Lessee hereby expressly waives the service
of any notice in writing of intention to reenter said Leased Premises. Lessor
may, in addition to any other remedy provided by law or permitted herein, at its
option, relet the Leased Premises (or any part thereof) on behalf of Lessee,
applying any monies collected first to the payment of expenses of resuming or
obtaining possession, and, second, to the payment of the costs of placing the
premises in rentable condition, including any leasing commission, and, third, to
the payment of rent due hereunder, and any other damages due to the Lessor. Any
surplus remaining thereafter shall be paid to Lessee, and Lessee shall remain
liable for any deficiency in rental, the amount of which deficiency shall be
paid upon demand therefor to Lessor.
(b) Should Lessor re-enter and terminate according to
the provisions of this subparagraph, Lessor may remove and store the Lessee's
Property at the expense and for the account of Lessee. Alternatively, Lessor may
sell, or cause to be sold, Lessee's Property at public sale to the highest
bidder for cash, and remove from the proceeds of such sale any rent or other
payment then due Lessor under this Lease. Any disposition of the Lessee's
Property pursuant thereto shall be subject to the rights of any lender to Lessee
holding a mortgage on Lessee's Property and shall be made in a manner that is
commercially reasonable within the meaning of the Uniform Commercial Code as in
effect in the State of 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;
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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 Leased Premises by Lessor, its agents, or
invitees; (c) out of any omissions, negligence or willful misconduct of Lessor,
its agents, servants, employees, licensees, or invitees; (d) out of failure of
Lessor to comply with any laws, statutes, ordinances, or regulations; (e) out of
Lessor's failure to maintain equipment in proper working order; and (f) out of
Lessor's failure to comply with any of its other obligations under the terms of
this Lease.
(c) Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other party ("Indemnifying Party")
reasonably prompt notice of known claims giving rise to any claim for indemnity,
and the Indemnifying Party shall have the right and opportunity to undertake the
legal defense of such claims. The Indemnified Party and its counsel may
nevertheless participate in (but not control) such proceedings, negotiations, or
defense at its own expense. In all such cases, the Indemnified Party will give
all reasonable assistance to the Indemnifying Party, including making the
Indemnified Party's employees and documents available as reasonably requested
without charge.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 ESTOPPEL CERTIFICATE. Within ten (10) days after either
party's request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
20.02 ATTORNMENT. Lessee shall, in the event of a sale or
assignment of Lessor's interest in any of the Leased Premises, or, if any of the
Leased Premises or any building thereon comes into the hands of any Trustee
under a Deed of Trust or a mortgagee or any other person, whether because of a
foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or
otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person,
and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's
request any attornment agreement reasonably required by any mortgagee, Trustee,
or other such person to be executed containing such provisions as such
mortgagee, Trustee, or other person reasonably requires, provided, however, that
such attornment shall not modify the terms of this Lease.
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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 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
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mailing. Notices shall be served or mailed to the following addresses, subject
to change as provided above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx Broadcasting of Eastern North Carolina, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
21.08 WAIVER. It is agreed that the waiving of any of the
covenants of this Lease by either party shall be limited to the particular
instance, and shall not be deemed to waive any other breaches of such covenant
or any provision herein contained.
21.09 ACCORD AND SATISFACTION. No receipt of money by Lessor
after the termination of this Lease or after the service of any notice or after
the commencement of any suit reinstates, continues, or extends the term of this
Lease or affects any such notice or suit.
21.10 LIMITATION OF LIABILITY. Except as otherwise expressly
stated herein, Lessor shall not be liable or responsible to the Lessee or to
anyone claiming under or through the Lessee for any loss or damage caused by the
acts or omissions of any other tenants or any other users of the Towers,
Transmitter Building, or Tower Site, or for any loss or damage to Lessee's
Property caused by fire, water, bursting pipes, leaking gas, sewage, steam
pipes, drains, ice, or materials falling from the Towers, or the malfunction of
any utility, facility, or installation,
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or by reason of any other existing condition or defect in the Leased Premises;
nor shall Lessor be liable or responsible to the Lessee for any injury or damage
suffered by the Lessee and allegedly caused by technical interference with the
Lessee's operations, by the activities of any other tenants or users of the
Towers, Transmitter Building, and Tower Site, or any other broadcasters. Except
for Lessor's own negligent acts, willful misconduct or for breaches of its
obligations under this Agreement, Lessor shall not be liable to Lessee, or to
any other person for property damage or personal injury, including death. Lessor
shall not be liable under any circumstances for loss of use, loss of sponsorship
or advertising revenue, or any other consequential damages sustained by Lessee.
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 Leased
Premises or conflict with this Lease.
21.14 FORCE MAJEURE. Lessor assumes no responsibility for any
losses or damages to Lessee's Property caused by acts of God, including, but not
limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or
by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for
losses or damages to Lessee's Property caused by any person other than employees
and agents of Lessor. In the event that Lessor shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of acts
of God (including, but not limited to, wind, lightning, rain, ice, earthquake,
flood, or rising water), aircraft or vehicle damage or other casualty,
unforeseen soil conditions, acts of third parties who are not employees of
Lessor, strikes, lock-outs, labor troubles, inability to procure material,
failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of delay and the period for performance
of any such act shall be extended for a period equivalent to the period of such
delay.
21.15 ENTIRE AGREEMENT. This Lease, together with its Exhibits,
constitutes and sets forth the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous offers, negotiations, and agreements (whether oral or written)
between the parties (or any of their related entities) concerning the subject
matter of this Lease.
21.16 COUNTERPARTS AND DUPLICATES. This Lease may be executed in
counterparts, which, when combined, shall constitute a single instrument. The
Lease may also be executed in duplicate editions, each of which shall be
effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their respective hands
and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
By: (SEAL)
---------------------------- --------------------------------
Witness Printed Name:
Title:
LESSEE:
XXXXXXX BROADCASTING OF EASTERN NORTH
CAROLINA, INC.
By: (SEAL)
---------------------------- --------------------------------
Witness Printed Name:
Title:
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EXHIBIT A
WKML-FM
That certain communications tower situated on that certain tract of land and
described on Exhibit B herein.
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EXHIBIT B
DESCRIPTION OF TOWER SITE
That certain tract of land more particularly described as follows:
Lying and being in Saddletree Township, Xxxxxxx County, North Carolina, about
4.2 miles southwest of the Town of St. Pauls, about 8 miles southeast of the
Town of Red Springs, about 0.3 miles northeast of the intersection of Secondary
Road No. 1318 with Secondary Road No. 1763, and on the southeast side of and
adjoining paved Xxxxxxxxx Xxxx Xx. 0000. Bounded on the northwest by Peacock's
Furniture of Laurinburg, Inc. and Xxxxxxxxx Xxxx Xx. 0000 and on all other sides
by other lands of the parties of the first part, and being more particularly
described as follows:
BEGINNING at an existing concrete monument 116.99 feet southeast of the
centerline of paved Secondary Road No. 1318, said monument being a corner of the
original tract and also having North Carolina Grid Coordinates of N-375,950.15
feet and E-1,986,107.94 feet, and runs thence as a new line, South 51 degrees 08
minutes 10 seconds East 1,183.72 feet to an iron rod; thence as another new
line, South 38 degrees 51 minutes 50 seconds West 975.00 feet to an iron rod,
pine pointer; thence as another new line, North 51 degrees 08 minutes 10 seconds
West 1183.72 feet to an iron rod in the original line, said iron rod being 13.86
feet southeast of the centerline of paved Xxxxxxxxx Xxxx Xx. 0000, and also
being located North 56 degrees 10 minutes 50 seconds East 1377.65 feet from a
nail at the centerline intersection of paved Secondary Road No. 1318 with
Xxxxxxxxx Xxxx Xx. 0000; thence as the original northwestern line of the tract
of which this is a part, North 38 degrees 51 minutes 50 seconds East 119.44 feet
to a nail in the centerline of paved Xxxxxxxxx Xxxx Xx. 0000; thence as the
centerline of said road, North 45 degrees 28 minutes 50 seconds East 100.00 feet
to a nail; thence North 43 degrees 59 minutes 30 seconds East 100.00 feet to a
nail; thence North 39 degrees 35 minutes 05 seconds East 100.00 feet to a nail;
thence North 34 degrees 20 minutes 50 seconds East 100.01 feet to a nail; thence
North 28 degrees 40 minutes East 78.20 feet to a nail in the intersection of
said centerline with the original line; thence as said original line, North 38
degrees 51 minutes 50 seconds East 379.98 feet to the BEGINNING, containing
26.34 acres as surveyed by Xxxxxx X. Paris and Associate in June, 1983 using
North Carolina Grid Meridian and EXCEPTING NEVERTHELESS a fenced cemetery plot
known as the "Old Carlyle Cemetery" and being more particularly described as
follows: BEGINNING at an iron fence post, said post being located South 9
degrees 48 minutes 40 seconds East 412.82 feet from a concrete monument, the
beginning a northern most corner of the above described 26.34 acre tract, and
runs thence as the southeastern fence line of said cemetery, South 31 degrees 11
minutes 50 seconds West 53.4 feet to an iron fence post; thence North 58 degrees
48 minutes 10 seconds West, with and beyond a fence, 25 feet to a point; thence
North 31 degrees 11 minutes 50 seconds East 53.4 feet to a point; thence to and
with an old fence South 58 degrees 48 minutes 10 seconds East 25 feet to the
BEGINNING.
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The property hereinabove described was acquired by Grantor by Deed dated
February 15, 1985, recorded March 11, 1985, in Book 573 Page 0914 in the Xxxxxxx
County, North Carolina Registry.
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EXHIBIT C
[TOWER SPACE DIAGRAM OR DESCRIPTION]
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EXHIBIT D
[TRANSMITTER BUILDING SPACE DIAGRAM OR DESCRIPTION]
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