AGREEMENT OF SALE (O&L)
-----------------
This Agreement of Sale (the "Agreement") is made this ___ day of
February, 2000, between Xxxxxxx Broadcasting of Augusta, Inc., a Delaware
corporation (the "Seller"), and Xxxxxxx Family Towers Inc., a Delaware
corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns two (2) communications towers used in the
operation of radio broadcast station WGAC-AM (the "______ Tower" and the "______
Tower", and collectively called herein the "Towers"), the ______ Tower situated
on a certain tract of land which Seller leases from a third party (such tract of
land called herein the "______ Tower Site"), and the ______ Tower situated on a
certain tract of land which Seller leases from a third party (such tract of land
called herein the "______ Tower Site", and together with the ______ Tower Site,
collectively called herein the "Tower Sites"), the ______ Tower and the ______
Tower Site are more particularly described on Exhibit A attached hereto and the
______ Tower and the ______ Tower Site are more particularly described on
Exhibit B attached hereto;
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Towers and certain personal property belonging to Seller and associated with the
Tower Sites;
NOW, THEREFORE, in consideration of the mutual premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Agreement to Sell and Purchase.
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Seller agrees to sell, transfer, assign, convey and deliver to Buyer
and Buyer agrees to purchase and accept from Seller, the following assets upon
the terms and conditions contained herein (collectively, the "Assets"):
(a) The Towers; and
(b) The ground lease for each of the Tower Sites (the "Ground
Leases"), such Ground Leases attached as Exhibit C hereto and incorporated
herein.
2. Assumption of Liabilities
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(a) Upon the terms and subject to the conditions contained
herein, Buyer shall assume and become responsible for any and all liabilities
and obligations arising out of, or relating to events occurring after 12:01 am
Eastern Standard Time on the Closing Date (the "Adjustment Time"), under the
Ground Leases, and with respect to the ownership of the Towers, and the
operation of the business relating to the Assets (collectively, the "Assumed
Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is
understood and agreed that all liabilities to third parties relating to the
Assets that arise out of any act, event, or 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. Subject to the provisions of
Section 13 hereof, it is understood and agreed that all liabilities relating to
the Assets that arise out of any act, event, or transaction of Buyer following
the Closing Date (the "Assumed Liabilities") shall be the responsibility of
Buyer. Seller shall not be required to defend any suit or claim arising out of
any Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due
course all such Assumed Liabilities, and subject to Section 13 hereof Buyer
shall protect and forever hold Seller harmless from all claims with respect to
such Assumed Liabilities.
3. Purchase Price.
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(a) The purchase price for the Assets shall be the amount of
Five Hundred Eighty Eight Thousand Eight Hundred Seventeen Dollars ($588,817.00)
(the "Purchase Price"). The Purchase Price shall be adjusted at the Closing by
the amount of any prorations derived by operation of Section 6 hereof, and for
any other normal income and expense items related to the operation of the Tower
Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price
shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the
Purchase Price, the Assumed Liabilities and other relevant items among the
Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Buyer and Seller will each report the federal, state, and
local and other tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
4. Delivery of Purchase Price.
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(a) The Purchase Price shall be payable at Closing (as defined
in Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase, Price Buyer shall deliver to
Seller at Closing an unsecured promissory note of Buyer in the aggregate
principal amount of Five Hundred Eighty Eight Thousand Eight Hundred Seventeen
Dollars ($588,817.00), substantially in the form of Exhibit D (the "Purchase
Note").
5. Transfer of Assets.
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(a) Transfer of ownership of the Towers and assumption of the
Assumed Liabilities (except for the Ground Leases, which shall be transferred
according to Section 5(c) below) pursuant to Section 2 hereof shall be pursuant
to the Assignment, Xxxx of Sale and Assumption Agreement from the Seller to
Buyer in the form of Exhibit E attached hereto and incorporated herein (the
"Assignment, Xxxx of Sale and Assumption Agreement").
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(b) The Assets shall be transferred to Buyer free and clear of
all liens, encumbrances other than Permitted Encumbrances, if any. "Permitted
Encumbrances" shall mean: (i) encumbrances for taxes, assessments, or
governmental charges or levies which are not yet due and payable, or that,
subject to adequate security for payment, are being contested; (ii) existing
building restrictions, ordinances, easements of roads, privileges, or rights of
public service companies or other rights of way, other restrictions or
conditions of record, if any or other encumbrances disclosed in this Agreement
(including the Exhibits attached hereto); (iii) easements, rights of way or
other encumbrances that do not have a material adverse effect on the Assets or
the operation of the business relating to the Assets as currently operated; (iv)
encumbrances imposed by law, such as materialmen's, mechanic's, carrier's,
workmen's, or repairmen's liens or other similar encumbrances attaching in the
ordinary course of business or securing obligations that are not overdue; (v)
encumbrances securing indebtedness, which will be removed prior to or at the
Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed by
Buyer pursuant to Section 2.
(c) Assumption of the Ground Leases pursuant to Section 2 hereof
shall be pursuant to the Ground Leases Assignment and Assumption Agreement from
Seller to Buyer in the form of Exhibit F attached hereto and incorporated herein
(the "Ground Leases Assignment and Assumption Agreement").
6. Apportionment of Real Estate Taxes, Rent, Utilities.
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(a) Current real estate taxes, rent, utilities and all other
normal income and expense items related to the Assets shall be apportioned
between the parties to reflect the principle that all expenses and income
arising from the operation of the Assets up through the Adjustment Time shall be
for the account of Seller, and all expenses and income arising from the
operation of the business relating to the Assets acquired by Buyer after the
Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at
such other time as the parties agree, Buyer shall deliver to Seller a
certificate from Buyer which sets forth as of the Adjustment Time, all
adjustments to be made as provided in Section 6(a) above (the "Buyer's
Certificate"). Buyer shall provide Seller or its representatives access to
copies of such portions of books and records Seller may reasonably request
solely for the purposes of verifying such adjustments. The Buyer's Certificate
shall be final and conclusive unless objected to by Seller in writing within
ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach
agreement as to the amount of the adjustments to be made hereunder within thirty
(30) days after receipt of such written objection, which agreement, if achieved,
shall be binding upon all parties to this Agreement and not subject to dispute
or review.
(c) In the event of a disagreement between Buyer and Seller with
respect to the accounting to be made hereunder, the parties agree that a public
accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of
such disagreement.
(d) Any amounts due for the adjustments provided for herein
shall be paid within thirty (30) business days after final determination.
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7. Expenses. All costs and expenses incurred by the Parties in this
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transaction, including, but not limited to attorneys' fees, shall be paid by the
party incurring them.
8. Closing; Closing Conditions.
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(a) Closing of the transactions contemplated by this Agreement
(the "Closing") shall occur at a place and time mutually agreeable to Seller and
Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort
to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Buyer being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Buyer to consummate the transactions contemplated under this Agreement shall
have been obtained, (iii) no order, decree or judgment of any court, agency or
other governmental authority shall have been issued based on or arising out of
the conduct, action, inaction, qualifications or status of Buyer or any of its
affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b) above, and (v) the delivery by Buyer of Buyer's Closing Documents (as
defined in Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Seller being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specific date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Seller to consummate the transactions contemplated under this Agreement
shall have been obtained, (iii) no order, decree or judgment of any court,
agency or other governmental authority shall have been issued based on or
arising out of the conduct, action, inaction, qualifications or status of Seller
or any of its affiliates, which would render it unlawful as of the Closing Date
to effect that transactions contemplated by this Agreement in accordance with
its terms, and (iv) the delivery by Seller of Seller's Closing Documents as set
forth in Section 9 hereof.
9. Closing Deliveries.
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(a) At Closing, Seller shall execute and/or deliver to Buyer the
following (collectively "Seller's Closing Documents"):
(i) The Assignment, Xxxx of Sale and Assumption
Agreement;
(ii) The Ground Leases Assignment and Assumption
Agreement;
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(iii) A certificate from an officer of Seller reasonably
acceptable to Buyer confirming the accuracy of the
representations and warranties in Section 10 as of
the Closing Date;
(iv) Authorizing resolutions or minutes from Seller
approving this Agreement and the transactions
contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not a
"foreign person" (as defined in Section 1445(f)(3) of
the Code and the regulations issued thereunder); and
(vi) A lease agreement, by and between Buyer as lessor,
and Seller, as lessee, substantially in the form of
Exhibit G (the "Lease Agreement").
(b) At Closing, Buyer shall execute and/or deliver to Seller the
following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this
Agreement and the transactions contemplated herein;
(ii) A certificate from an officer of Buyer reasonably
acceptable to Seller confirming the accuracy of the
representations and warranties in Section 11 as of
the Closing Date;
(iii) The Purchase Note executed by a duly authorized
officer of Buyer;
(iv) A lease agreement, by and between Buyer as lessor,
and Seller, as lessee, substantially in the form of
Exhibit G (the "Lease Agreement");
(v) The Assignment, Xxxx of Sale and Assumption
Agreement; and
(vi) The Ground Leases Assignment and Assumption
Agreement.
(c) Seller's Closing Documents and Buyer's Closing Documents
shall be collectively called herein the "Closing Documents". Buyer and Seller
agree that such other documents as may be legally necessary or appropriate to
carry out the terms of this Agreement or as reasonably requested by the other
party shall be executed and delivered by the appropriate party at Closing.
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10. Representations and Warranties of Seller.
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As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Towers, and the
Assets are free and clear of liens, encumbrances, restrictions and security
interests other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and deliver
this Agreement and Seller's Closing Documents, and to perform its obligations
hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Seller,
enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with,
or result in, a breach of the terms of any agreements or instruments to which
the Seller is a party which would result in the creation or imposition of any
lien, charge or encumbrance on, or give to others any interest in or right to,
any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all
outstanding obligations for utilities and taxes through the Closing Date, except
for such items as are covered by the proration of items of income and expense as
set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with,
any person, entity, or authority will be required in connection with the
execution and delivery of this Agreement or the transactions contemplated by
this Agreement.
(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.
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11. Representations and Warranties of Buyer.
---------------------------------------
As a material inducement to Seller to enter into this Agreement, Buyer
represents and warrants to Seller as follows:
(a) Buyer has full power and authority to execute and deliver
this Agreement and Buyer's Closing Documents, and to perform its respective
obligations hereunder and thereunder.
(b) This Agreement and Buyer's Closing Documents, when executed
and delivered, will constitute valid and binding agreements of Buyer enforceable
against Buyer, in accordance with their terms.
(c) Assuming all consents and approvals required for Buyer to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Buyer's
compliance with, the terms and provisions of this Agreement will conflict with
or result in a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Buyer or any judgment, order, injunction,
decree, regulation, or ruling of any court or any other governmental authority
to which Buyer is subject or any material agreement or contract to which Buyer
is a party or to which it is subject, or constitute a material default
thereunder.
(d) Buyer acknowledges that the Towers are located on land which
is leased and subject to the Ground Leases. Buyer acknowledges that it has
received a copy of the Ground Leases and that there are no assurances that such
Ground Leases will be extended or, if extended, whether the terms and conditions
of any such extension will be the same as the terms and conditions of the
current Ground Leases.
12. Representations and Warranties Survive Closing.
----------------------------------------------
All of the provisions of this Agreement and of the Closing Documents
and all of the representations, warranties, considerations, and agreements
contained herein and in the Closing Documents shall survive Closing and continue
in full force and effect for a period of twelve (12) months from the Closing
Date; provided that if a claim for indemnification is made by either party under
Section 13 hereof within such twelve (12) month period, the provisions of
Section 13 shall survive until the resolution of such claim. No claim may be
brought under this Agreement unless written notice describing in reasonable
detail the nature of the claim is given on or prior to the last day of the
twelve (12) month period following the Closing Date.
13. Indemnification.
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(a) For a period of one (1) year from the date of this
Agreement, Seller shall indemnify, defend, and hold Buyer, its affiliates,
partners, employees, officers, directors, agents, and representatives harmless
from and against any and all reasonable losses, costs, expenses, liabilities,
penalties, claims, and other damages including, but not limited to, reasonable
attorney's fees and other costs and expenses, including reasonable costs of
investigation, reasonably incurred and resulting from:
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(i) any breach of Seller's representations or warranties,
or the breach of any other provision contained in
this Agreement;
(ii) nonfulfillment by Seller of any of its covenants or
agreements contained herein or in any Seller's
Closing Document;
(iii) the Retained Liabilities; and
(iv) any and all losses, liabilities or damages resulting
from Sellers' operations or ownership of any Tower
prior to the Closing Date, including any and all
liabilities arising under the Assets which relate to
events occurring prior to the Closing Date.
(b) For a period of one (1) year from the date of this
Agreement, Buyer shall indemnify, defend and hold Seller, its affiliates,
employees, officers, directors, agents and representatives harmless from and
against any and all losses, costs, expenses, liabilities, penalties, claims, and
other damages, including but not limited to, reasonable attorney's fees and
other costs and expenses, including reasonable costs of investigations,
reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties,
or the breach of any other provision contained in
this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or
agreements contained herein or in any Buyer's Closing
Document;
(iii) the Assumed Liabilities; and
(iv) any and all losses, liabilities or damages resulting
from Buyer's operations or ownership of any Tower
subsequent to the Closing Date, including any and all
liabilities arising under the Assets which related to
events occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified
Party") becomes aware of circumstances which would entitle such party to
indemnification by the other party hereunder (the "Indemnifying Party"), the
Indemnified Party shall give the Indemnifying Party prompt written notice, with
reasonable detail, of such claim. Upon receipt of such notice by the Indemnified
Party to the Indemnifying Party, the Indemnifying Party shall have the option of
defending against such pending litigation through engagement of legal counsel of
its choice, provided, however, that the Indemnifying Party's choice of legal
counsel must be acceptable to the Indemnified Party in its reasonable
discretion. In the event the Indemnifying Party elects to defend, the
Indemnifying Party shall keep the Indemnified Party fully informed on a timely
basis of the status of the pending litigation. In the event that the
Indemnifying Party elects to defend
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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) Notwithstanding anything in this Agreement to the contrary,
Seller's obligation to indemnify Buyer shall be subject to all of the following
limitations:
(i) The amount of any losses, costs, expenses,
liabilities, penalties, claims, and other damages
("Losses") incurred by Buyer shall be reduced by (A)
the amount Buyer recovers (after deducting all
attorneys' fees, expenses, and other out-of-pocket
costs of recovery) from any insurer or other party
liable for such Losses, and Buyer shall use
commercially reasonable efforts to effect any such
recovery and (B) any tax benefit realized by Buyer or
its owners as a result of any such Loss.
(ii) Buyer shall be entitled to indemnification only for
Losses as to which Buyer has given Seller written
notice describing in reasonable detail the nature and
basis for such indemnification ("Notice of Claim") on
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or prior to the first anniversary of the Closing
Date.
(iii) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to Sixty Thousand Dollars
($60,000.00) and Seller shall have no other liability
or responsibility for indemnification hereunder.
(e) Subsequent to the Closing, indemnification under this
Section 13 shall be the exclusive remedy of Buyer with respect to any legal,
equitable or other claim for relief based upon this Agreement or arising
hereunder.
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(f) Notwithstanding anything in this Agreement to the contrary,
Buyer's obligation to indemnify Seller shall be subject to all of the following
limitations:
(i) The amount of any Losses incurred by Seller shall be
reduced by (A) the amount Seller recovers (after
deducting all attorneys' fees, expenses and other
out-of-pocket costs of recovery) from any insurer or
other party liable for such Losses, and Seller shall
use commercially reasonable efforts to effect any
such recovery and (B) any tax benefit realized by
Buyer or its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for
Losses as to which Seller has given Buyer a Notice of
Claim on or prior to the first anniversary of the
Closing Date.
(iii) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Sixty Thousand Dollars
($60,000.00) and Buyer shall have no other liability
or responsibility for Indemnification hereunder.
(g) Subsequent to the Closing, indemnification under this
Section 13 shall be the exclusive remedy of Seller with respect to any legal,
equitable or other claim for relief based upon this Agreement or arising
hereunder.
14. Termination; Liquidated Damages.
-------------------------------
(a) Right of Termination. This Agreement may be terminated
--------------------
prior to Closing:
(i) By written notice from a party that is not then in
material breach of this Agreement if:
(A) The other party has continued in material breach
of this Agreement for twenty (20) days after
written notice of such breach from the
terminating party;
(B) Closing does not occur by May 31, 2000 or such
other date as is mutually agreed to by Buyer and
Seller.
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(b) Obligations Upon Termination.
----------------------------
(i) Upon termination of this Agreement, each party shall
thereafter remain liable for breach of this Agreement
prior to such termination and remain liable to pay
and perform any obligation under Section 13.
(ii) If Closing shall not have occurred, Seller's sole
remedy at law or in equity for any breach or default
by Buyer described in Section 14(a)(i)(A) shall be
the termination by Seller of this Agreement by giving
of written notice to Buyer pursuant to Section
14(a)(i)(A).
(c) Termination Notice. Each notice given by a party pursuant
------------------
to Section 14(a) to terminate this Agreement shall specify the subsection of
Section 14(a) pursuant to which such notice is given. If at the time a party
gives a termination notice, such party is entitled to give such notice pursuant
to more than one subsection of Section 14(a), the subsection pursuant to which
such notice is given and termination is effected shall be deemed to be the
subsection specified in such notice provided that the party giving such notice
is at such time entitled to terminate this Agreement pursuant to the specified
subsection.
15. Default; Disputes.
-----------------
If Seller fails to perform under this Agreement, the Buyer may
exercise any right it has against the Seller, including bringing an action for
specific performance. The remedies provided by this Section are in addition to
any right or remedies provided elsewhere in this Agreement or at law or in
equity. In the event a dispute arises between the Parties over the
interpretation of this Agreement, or the performance, alleged non-performance or
breach by either Party hereunder, the Parties hereby agree to seek resolution of
such dispute in good faith through an alternative dispute resolution process
mutually agreeable to the Parties prior to the institution of any legal
proceedings related thereto.
16. Liabilities.
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Buyer shall not, in connection with the purchase and sale of Assets
contemplating herein, assume any liabilities or obligations of the Seller except
as specifically set forth herein.
17. Third Party Brokerage.
---------------------
Seller and Buyer hereby represent and warrant to each other that
neither Seller or Buyer has dealt with any broker or finder in connection with
the transaction which is the subject of this Agreement. Each party hereby
agrees to indemnify, save harmless and defend the other from and against all
claims, losses, liabilities and expenses, including reasonable attorney's fees,
arising out of any claim made by any broker, finder or other intermediary who
claims to have dealt with such party in connection with the transaction which is
the subject of this Agreement. The provisions of the paragraph shall survive
Closing hereunder.
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18. Entire Agreement.
----------------
This Agreement (which includes the exhibits and schedules attached
hereto) constitutes the entire agreement between the Parties and there are no
other understandings, representations or warranties, oral or written, relating
to the subject matter hereof.
19. Amendment.
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This Agreement may not be changed, modified or amended, in whole or in
part, except in writing, signed by all parties.
20. Notice.
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Notices given pursuant to this Agreement shall be in writing and shall
be given by actual delivery or by mailing the same to the party entitled thereto
at the addresses set forth below or at any such other address as any Party may
designate in writing to any other Party pursuant to the provisions of this
Section. Notice given by mail shall be sent by United States mail, certified or
registered, return receipt requested or by nationally recognized courier
serviced providing receipt of delivery. Notices shall be deemed to be received
on the date of actual receipt, in the case of personal delivery, or on the date
of mailing, in the case of mailing. Notices shall be served or mailed to the
following addresses, subject to change as provided above:
If to the Seller: Xxxxxxx Broadcasting of Augusta, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxx
President
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Buyer: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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21. Construction.
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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.
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This Agreement and all of its terms and conditions shall extend to and
be binding upon the Parties hereto and upon their respective heirs, executors,
administrators, successors and assigns.
24. Further Assurances.
------------------
Seller and Buyer agree to execute and deliver any further documents or
assurances that in law or otherwise are necessary, desirable or proper to
consummate the transactions contemplated by this Agreement and to vest, perfect,
assign or confirm, of record or otherwise, in Buyer title to the Assets.
25. Governing Law.
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This Agreement is made and shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
26. Headings.
--------
The headings and captions in this Agreement are for convenience only
and are not part of this Agreement.
27. Interpretation.
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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.
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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.
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29. Severability.
------------
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then such provision shall be
severed from this Agreement and the remainder shall remain in full force and
effect.
[Signature page follows]
14
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound,
have caused this Agreement to be duly executed on the day and year first written
above.
SELLER:
XXXXXXX BROADCASTING OF AUGUSTA, INC.
By: __________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By: __________________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
INDEX OF EXHIBITS
-----------------
Exhibit A Description of ______ Tower and ______
Tower Site
Exhibit G Description of ______ Tower and ______
Tower Site
Exhibit C Ground Leases
Exhibit D Form of Purchase Note
Exhibit E Form of Assignment, Xxxx of Sale and
Assumption Agreement
Exhibit F Form of Ground Leases Assignment and
Assumption Agreement
Exhibit G Form of Lease Agreement
EXHIBIT A
---------
DESCRIPTION OF ______ TOWER AND ______ TOWER SITE
WGAC-AM
[INSERT TOWER AND LEGAL DESCRIPTION]
EXHIBIT B
---------
DESCRIPTION OF ______ TOWER AND ______ TOWER SITE
[INSERT 2/nd/ TOWER AND LEGAL DESCRIPTION]
EXHIBIT C
---------
GROUND LEASES
LEASE AGREEMENT (O&L WGAC-AM)
-----------------------------
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000
by and between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"),
and XXXXXXX BROADCASTING OF AUGUSTA, INC., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns two (2) communications towers, the first of such
towers described on Exhibit A attached hereto (the "______ Tower"), and located
on a certain tract of real estate located in Augusta, Georgia described in
Exhibit B attached hereto (hereinafter referred to as the "______ Tower Site");
and the second of such towers described on Exhibit C attached hereto (the
"______ Tower" and together with the ______ Tower, collectively called herein
the "Towers"), such ______ Tower located on a certain tract of real estate
located in Augusta, Georgia and described in Exhibit D attached hereto
(hereinafter referred to as the "______ Tower Site", and together with the
______ Tower Site, collectively called herein the "Tower Sites"; the term "Tower
Sites" shall also include any appurtenant easements on each of such tracts of
land);
WHEREAS, Lessor desires to lease the Towers for the purpose of
Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Towers from Lessor therefor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
Lease Commencement.
------------------
Commencement of Term. The term of this Lease and the payment of
rent and other performances in accordance with the terms of this Lease shall
commence on the date hereof.
Exhibits. All Exhibits referred to in this Lease are
incorporated herein by reference.
Description of the Leasehold.
----------------------------
Towers. Lessor hereby leases to Lessee, and Lessee leases from
Lessor, the Towers for the purposes of the broadcast transmission of WGAC-AM,
Augusta, Georgia.
Ownership of Property; Access.
Except for "Lessee's Property" as defined below, all tenant
improvements including all fixtures and trade fixtures
shall become the property of the Lessor, and shall
remain with the Towers after the Lessee vacates same.
The Lessee's antenna, transmission line, and other
equipment, together with any replacements thereof and
modifications and additions thereto which are permitted
hereunder, shall be and remain Lessee's property, and
are hereinafter referred to as "Lessee's Property".
Lessee will be solely responsible for the maintenance
of Lessee's Property, including all expenses associated
with such repair.
Lessee shall have reasonable right of access to the Towers
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 Towers for ingress, egress,
utilities, the locating and usage of cabling and
related equipment, operations, maintenance, repair or
remodeling, or other engineering purposes.
Permitted Uses.
--------------
By Lessee.
Subject to all appropriate government approvals, including
the Federal Communications Commission ("FCC"), the
Towers may be used only for activities related to the
operation of radio broadcast stations. Such operations,
shall be conducted in accordance with the standards
imposed by the FCC and any other governmental body with
authority over such transmission and operations.
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
19
equipment as it deems necessary to its operations
within Lessee's space in all respects in compliance
with the terms hereof. The Towers, Lessee's interior
and exterior equipment, and all other improvements
shall be maintained in an orderly and professional
manner.
By Lessor.
Subject to the rights elsewhere granted to Lessee in this
Lease and with prior notice to Lessee and no loss of
service or interruption (beyond a temporary, non-
recurring and de minimis amount), Lessor reserves the
right to use the 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.
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 Sites or use
of any of the improvements thereon, space in any
building constructed by Lessor for any purpose,
including, but not limited to, any kind of broadcasting
or communication, simultaneous transmissions on AM, FM,
SSB, VBIF, UHF, and/or microwave frequencies, and all
rental revenues received therefrom shall belong
exclusively to Lessor. Prior to permitting the
fastening of a material amount of additional equipment,
Lessor shall cause a structural analysis of the Towers
to be conducted by a reputable mechanical consultant
chosen by Lessor in order to ensure that any such
additions conform to recognized engineering standards.
Except as expressly provided for herein, Lessor shall have
no liability for any action or omission taken in
exercise of its rights hereunder upon reasonable
reliance on recommendation of its engineering
personnel.
Subject to the terms of this Lease, Lessor also reserves the
right to erect one (1) or more additional towers either
of on the Tower Sites.
20
Term.
----
Term. This Lease shall have an initial term of twenty (20)
years from the Commencement Date established in Paragraph 1.01 hereof.
Rent.
----
Rental. Lessee shall pay rent for each consecutive twelve-
month period beginning on the Commencement Date (each a "Lease Year") during the
term of this Lease. Such rental payment shall be payable in equal and successive
monthly installments in advance beginning with the Commencement Date and
continuing thereafter on the first day of each month during the term of this
Lease, such rental payments to be made, without any setoff or deduction
whatever, according to the following schedule:
21
Lease Year Rent Per Lease Year Monthly Rent
1 $53,810.04 $4,484.17
2 $53,810.04 $4,484.17
3 $53,810.04 $4,484.17
4 $53,810.04 $4,484.17
5 $53,810.04 $4,484.17
6 $53,810.04 $4,484.17
7 $53,810.04 $4,484.17
8 $53,810.04 $4,484.17
9 $53,810.04 $4,484.17
10 $53,810.04 $4,484.17
11 $53,810.04 $4,484.17
12 $53,810.04 $4,484.17
13 $53,810.04 $4,484.17
14 $53,810.04 $4,484.17
15 $53,810.04 $4,484.17
16 $53,810.04 $4,484.17
17 $53,810.04 $4,484.17
18 $53,810.04 $4,484.17
19 $53,810.04 $4,484.17
20 $53,810.04 $4,484.17
Payment of Rentals. Rentals to be paid hereunder shall be paid
monthly in lawful money of the United States of America and shall be paid in
advance on the first day of each month during the term of this Lease by
crediting the payment owed to Lessee by Lessor under that certain Promissory
Note made by Lessor in favor of Lessee dated _______________, 2000, on the first
day of each month during the term of this Lease. In the event of prepayment of
the Promissory Note by Lessor or other action resulting in amounts equal to any
monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Towers, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Ms. B. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may
in writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
Electricity and Other Utilities. In addition to the payments
prescribed under Section 5.01 of this Lease, Lessee shall pay for its own
telephone lines and service, electrical service (including electrical service to
the 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
lighting of the Towers.
Authority.
---------
Quiet Enjoyment. Lessor represents and warrants that it has the
full power and authority to enter into this Lease, and covenants and agrees that
Lessee, upon paying the rents described herein and observing and keeping the
covenants, agreements, and stipulations of
22
this Lease on Lessee's part to be observed and kept, shall lawfully, peaceably,
and quietly hold, occupy, and enjoy the Towers, and all other rights and
privileges granted herein, without hindrance, eviction, or molestation by Lessor
or any party claiming by or through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the
full power and authority to enter into and perform this Lease. Any and all
necessary corporate resolutions, encumbrance certificates, etc., shall be
supplied by Lessee upon the request of Lessor.
Permits.
-------
Permits. Lessor shall obtain all necessary licenses or permits in
connection with the Towers except that Lessee shall obtain, at its own expense,
any and all necessary licenses or permits from such governmental authorities as
shall have jurisdiction in connection with the (b) the operations, installation,
repair, alteration, or replacement of Lessee's equipment (including, without
limitation, Lessee's antenna and transmission and/or receiving equipment); or
(c) with any of Lessee's activities thereon or contemplated by this Lease. At
Lessor's request, Lessee shall furnish Lessor with copies of same, and shall
abide by the terms and provisions of such licenses and permits.
23
Maintenance of Towers and Lessee's Property.
-------------------------------------------
During Term of Lease.
Lessee, at its own cost and expense, shall maintain and repair
Lessee's Property, including specifically its antenna,
related equipment, transmission lines, transmitters, and
other equipment. Lessor shall perform the same tasks with
respect to the Towers. All such maintenance shall be
conducted by the parties in accordance with good engineering
standards and in conformity with the requirements of the FCC
or any other body having jurisdiction over the Lessee and its
property, including, without limitation, any rules,
regulations, or guidelines of the FCC implementing the
National Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of Lessor
and Lessee shall take all reasonable precautions to avoid
interference or hindrance to and with the operations of the
other party hereto. In this regard, each party hereto agrees
to eliminate, without cost to the other party hereto, any
interference or hindrance to such other party's operation.
Maintenance and repair of Lessee's Property shall be
performed only by a reputable contractor and in accordance
with the provisions of subsections (d), (e), and (f) hereof.
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 or the Tower
Sites, or the prevention of interference with Lessor or any
other user of the Towers or any other broadcaster, Lessor
may, at its option, make such emergency repairs to the
property as it deems reasonably necessary, and any amount
expended by Lessor therefor shall be reimbursed to it by
Lessee immediately upon presentation of a statement and shall
be deemed additional rent. Lessor shall not be liable for
inconvenience, disturbance, loss of business, or other damage
to Lessee by reason of repairing any of Lessee's Property
which Lessee has failed to properly maintain.
24
With respect to the non-emergency repairs which Lessor, in its
reasonable discretion, determines that Lessee should make to
maintain Lessee's Property and equipment in good order, and
that such repairs are necessary for the safety of the Towers
or Tower Sites, or the prevention of interference with
Lessor, in violation of the terms of this Agreement, Lessor
shall so notify Lessee in writing, specifying the maintenance
and repairs required to be performed by Lessee. In the event
that, within ten (10) business days following such written
notice (or such longer period as may be reasonably necessary
taking into account all facts and circumstances), Lessee
shall not have performed such maintenance and repairs, Lessor
may, at its sole option, make such repairs as it deems
reasonably necessary, and any amount expended by Lessor
therefor shall be deemed additional rent. Lessor shall not be
liable for inconvenience, disturbance, loss of business, or
other damage to Lessee by reason of repairing the property
and equipment of Lessee which Lessee has failed to properly
maintain.
No work (including electrical work), except for emergency repairs
that Lessee shall perform to return to, or maintain the
station on air in the event of a failure, will be performed
by the Lessee in connection with the installation,
alteration, 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.
With respect to any work to be performed by or on behalf of
Lessee in connection with the installation, alteration,
maintenance, repair, or removal of any equipment on the
Towers (including any ascension of the Towers), or in or
about the Tower Sites. 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
25
sole option of Lessor, provide a bond to cover any work which
it has been retained to perform. Lessor agrees to consult on
call in any emergency situation and immediately give its
approval or disapproval.
All work by or on behalf of the Lessee or Lessor shall be carried
out (i) in a good and workmanlike manner; (ii) in accordance
with established engineering standards and public ordinances,
rules, and regulations applicable to such work, including,
without limitation, any rules, regulations, or guidelines of
the FCC implementing the National Environmental Policy Act of
1969, pertaining to electromagnetic or radio frequency
radiation; (iii) in accordance with plans and specifications,
including mechanical and electrical drawings, which have been
submitted to and approved in writing and in advance by
Lessor; and (iv) in accordance with Lessor's security
procedures with respect to protection of the Tower Sites.
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.
In the event that any notice of lien or lien shall be filed
against any part of the Tower Sites 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,
26
or in defending any such action, shall be paid to Lessor by
Lessee, and shall be treated as additional rent hereunder.
At Expiration or Termination. At the expiration or termination of
this Lease, Lessee shall promptly surrender possession of the Towers 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.
Maintenance of Towers.
---------------------
Maintenance of Towers.
Lessor shall maintain the Towers in good repair. Lessee shall
comply with any security policies reasonably established from
time to time by Lessor.
Lessor assumes the obligation and responsibility for complying
with the requirements of the FCC regarding obstruction,
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.
In the event that Lessor determines that repairs, alterations, or
improvements are necessary or desirable to the Towers 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
27
Lease nor shall it be entitled to compensation for any loss
or damage it may sustain (including loss of use, loss of
advertising/sponsorship revenues, and consequential damages)
by reason of such changes or alterations.
Alterations by Lessee.
---------------------
Alterations.
Lessee shall have the right, at its own expense, to make such
changes and alterations in the Lessee's Property situated on
the 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.
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 any or
all of the Towers, such study shall be performed by an
engineer chosen by Lessor, and approved by Lessee (such
approval not to be unreasonably withheld, delayed or
conditioned) whose decision shall be final and binding upon
both parties. The cost of such study or any other costs
reasonably incurred by Lessor in determining the feasibility
of any proposed change or alteration in the type, location,
or positioning of Lessee's Property shall be borne entirely
by Lessee.
Interference.
------------
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation 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
28
supplied to Lessee by Lessor in writing, and the Lessor and such other users
will be requested to advise, in writing, the Lessee and Lessor, as applicable,
within ten (10) days after receipt of such notification, whether they have any
reasonable objections thereto on the grounds that objectionable interference may
result; provided, this Section 11.01 shall not apply to any currently installed
Lessee's Property or its replacement, maintenance or repair. If the Lessor or
any other user shall reasonably object within this period to such plans and
Lessee is unwilling to alter its plans to meet the objections, the dispute shall
be submitted to an independent professional engineer chosen by Lessor, and such
engineers decision shall be final and binding upon all parties. The cost of any
such studies shall be borne by Lessee.
Interference with Lessor, Lessee, or Others. Notwithstanding the
provisions of Paragraph 11.01, should any change, after the date hereof, in the
facilities or mode of operation of Lessee or Lessee's failure to comply with the
Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable
electrical or physical interference (including interference from any other
structure erected on either of the Tower Sites) 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
Sites shall contain this language.
Interference by Other User. Any subsequent agreement under which
Lessor allows any other person to occupy any portion of the Towers shall provide
that, should the installation, operation, or maintenance of the equipment or the
activities of such other person cause any objectionable interference with the
operations of Lessor or Lessee, then, promptly after written notification of
such, such other tenant or user, at its sole expense, will take such steps as
may be reasonably necessary to correct such interference, including, but not
limited to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filter or other equipment, provided that if such
interference is caused by the failure of any other lessee to comply with the
Maintenance Standards, as defined in Paragraph 11.04, such other lessee will, at
its sole expense, comply with such Maintenance Standards. To the best of its
ability, Lessor shall not permit any operations by other tenants, the effect of
which would be to prohibit Lessee from operating in the manner contemplated
herein, without the prior written consent of Lessee. Lessor shall have no
liability for any action or omission taken upon reasonable reliance on the
29
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 shall not cause any objectionable
interference with the operations of Lessee. Immediately upon notification of
such interference by Lessee, Lessor shall at its sole expense take such steps as
may be reasonably necessary to correct such interference, including, but not
limited to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filter or other equipment.
Definition of "Maintenance Standards". For the purposes of this
Lease, compliance with "Maintenance Standards" shall mean that a tenant or user
of the 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.
Utilities.
---------
Utilities. Subject to the required approvals and cooperation of
any governmental authority or public utilities, Lessee shall arrange and be
responsible for the installation and provision of electrical and telephone lines
serving Lessee's Property at any building on the Tower Sites owned by Lessor.
Lessee shall be responsible for procurement of and payment for all telephone
services as described in Paragraph 5.03 and used by Lessee.
Taxes.
-----
Payment of Taxes. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Tower Sites (including
the Towers), and all taxes which may be assessed against the Towers and any
buildings thereon. [Foregoing obligation is subject to $200,000 12-month limit
when aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement]. Lessee shall pay all personal property or other
taxes assessed or imposed on Lessee's Property, and shall cooperate with Lessor
to ensure that such property is properly separated from that of Lessor or other
tenants for assessment purposes.
Insurance.
---------
Public Liability. Lessee shall procure and maintain comprehensive
public liability insurance, naming Lessor as an additional insured as its
interests shall appear, covering all of the Lessee's operations and activities
on the Towers, including but not limited to, the operations of contractors and
subcontractors and the operation of vehicles and equipment (including the
elevators on the Towers), 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
30
subject to $200,000 12-month limit when aggregated with other borrowers under
Credit Agreement per 1.5D of First Amendment to Credit Agreement].
Contractor Liability. Lessee shall also cause the contractors
erecting, installing, or maintaining Lessee's Property or performing any other
work for Lessee on the Tower Sites 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.
Insurance on the Towers. Lessee shall procure and maintain
physical damage insurance on the Towers in an amount sufficient to repair or
replace the Towers with such coverage to be on an "All Risks" basis, including,
without limitation, coverage for the perils of fire, lightning, windstorm, hall,
flood, earthquake, collapse, explosion, aircraft and vehicle damage, vandalism,
and malicious mischief. [Foregoing obligation is subject to $200,000 12-month
limit when aggregated with other borrowers under Credit Agreement per 1.5D of
First Amendment to Credit Agreement]. Lessee shall be solely responsible for its
insurance on Lessee's Property, together with business interruption insurance.
Damage to the Towers. In the event that the Towers are destroyed
or damaged by fire, lightning, windstorm, flood, earthquake, explosion,
collapse, aircraft, or other vehicle damage or other casualty covered by
insurance, Lessor shall promptly reconstruct or repair the Towers to such good
condition as existed before the destruction or damage, and give possession to
Lessee of substantially the same space leased hereunder. Lessee shall promptly
pay over to Lessor any insurance proceeds it receives from insurance policies
Lessee is required to procure under Section 14.03 hereof for the purpose of use
by Lessor to fund reconstruction of the Towers as required of Lessor under this
Section 14.04. If the Towers are in need of such repair or is so damaged by
fire, lightning, windstorm, flood, earthquake, explosion, aircraft or other
vehicle damage, collapse, or other casualty that reconstruction or repair cannot
reasonably be undertaken without dismantling Lessee's antenna, then upon written
notice to Lessee, Lessor may remove any such antenna and interrupt the signal
activity of Lessee, but will use its best efforts to have the antenna replaced
as soon as reasonably possible. Lessor agrees to provide Lessee alternative
towers, if available, during such reconstruction/repair period. If such towers
are not available, then Lessee shall be responsible for procuring its own
alternative towers. 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 or (b)
replace the Towers within one (1) year if Lessor has provided the notice
described in clause (a) above, of the date of destruction, or repair the same
within such shorter time period after the casualty as may be reasonable, then
Lessee, upon thirty (30) days' written notice to Lessor, may terminate this
Lease, provided if Lessor has provided the notice described in clause (a) above,
Lessee must make such election within one hundred twenty (120) days prior to the
expiration of said repair or replacement period. Lessee agrees that it shall
maintain adequate business interruption insurance at all times during the term
of this Lease to adequately protect it from any interruption of signal
activities due to damage to any or all of the Towers
31
(including costs of reinstallation of its equipment and lines), and Lessor shall
have no liability on account of such business interruption or reinstallation
costs due to damage or destruction under this paragraph.
Eminent Domain.
--------------
In the event that any or all of the Towers (or any portion of the
Towers necessary for the guy wires, or other appurtenances
necessary to Lessee's broadcasting operations) is acquired or
transferred or condemned pursuant to eminent domain
proceedings (or the threat thereof), the obligation of the
parties under this Lease shall be terminated as of the date
of acquisition or transfer. Lessor shall be entitled to the
entire condemnation award. If Lessor determines to build new
towers as a replacement for the Towers on the condemned
property, Lessor agrees to lease the new tower on terms
reasonably equivalent to the terms of this Lease.
In the event that this Lease is terminated due to eminent domain
proceedings, then Lessee shall be relieved of any further
obligations to make any rental payments or performances for
any period after the date of such termination of this Lease;
and subject to offset or withholding by Lessor to cover any
unpaid additional rent or other authorized charges which may
be owed through the date of termination, Lessee shall be
entitled to a refund of any advance rental sums which it has
paid in proportion to the period of the Lease through such
date of termination.
Successors and Assignment.
-------------------------
Successors. All rights and liabilities herein given to or imposed upon
the respective parties hereto shall, to the extent that such are assignable,
extend to and bind the several and respective successors and assigns of the
parties hereto.
Assignment. Lessee shall not assign, sublet, or transfer this Lease or
any interest therein, or permit or allow through any act or default of itself,
or of any other person, any transfer thereof by operations of law or otherwise
without the prior written consent of Lessor except:
Lessee may assign this Lease to any bona fide third party
purchaser of substantially all the assets comprising of
Lessee's radio station broadcasting from the Tower Sites, who
shall execute an assignment and assumption agreement in form
reasonably acceptable to Lessor; and
32
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.
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 Towers 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 Towers after the expiration of the thirty (30) day
period shall be deemed to be the property of Lessor, which Lessor may have
removed at Lessee's expense.
Lessor's Protection.
-------------------
Default by Lessee.
If Lessee shall make default in making any payment
herein provided for and any such default shall
continue for a period of ten (10) business days
after written notice to Lessee, or if Lessee shall
make default in the performance of any obligation
of Lessee herein (other than as to payment of
money) and any such default shall continue for a
period of thirty (30) days after written notice to
Lessee, or if Lessee shall file a voluntary
petition in bankruptcy, or if Lessee shall file
any petition or institute any proceedings under
any Insolvency or Bankruptcy Act or any amendment
thereto hereafter made, seeking to effect its
reorganization or a composition with its
creditors, or if, in any proceedings based on the
insolvency of Lessee or relating to bankruptcy
33
proceedings, a receiver or trustee shall be
appointed for Lessee or either or both of the
Towers, 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 Towers 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 Towers.
Lessor may, in addition to any other remedy
provided by law or permitted herein, at its
option, relet the Towers (or any part thereof) on
behalf of Lessee, applying any monies collected
first to the payment of expenses of resuming or
obtaining possession, and, second, to the payment
of the costs of placing the premises in rentable
condition, including any leasing commission, and,
third, to the payment of rent due hereunder, and
any other damages due to the Lessor. Any surplus
remaining thereafter shall be paid to Lessee, and
Lessee shall remain liable for any deficiency in
rental, the amount of which deficiency shall be
paid upon demand therefor to Lessor.
Should Lessor re-enter and terminate according to the
provisions of this subparagraph, Lessor may remove
and store the Lessee's Property at the expense and
for the account of Lessee. Alternatively, Lessor
may sell, or cause to be sold, Lessee's Property
at public sale to the highest bidder for cash, and
remove from the proceeds of such sale any rent or
other payment then due Lessor under this Lease.
Any disposition of the Lessee's Property pursuant
thereto shall be subject to the rights of any
lender to Lessee holding a mortgage on Lessee's
Property and shall be made in a manner that is
commercially reasonable within the meaning of the
Uniform Commercial Code as in effect in the State
of Georgia at the time of such disposition.
34
Indemnification.
---------------
Each party warrants and represents that it has the
authority to enter into this Lease and to grant
the rights it grants hereunder, and that
performance of its obligations pursuant to this
Lease will not violate the rights of any third
party whatsoever. Lessee agrees to indemnify and
defend Lessor against any claim for damages,
losses, liabilities, costs, or expenses, including
reasonable attorney's fees, arising (a) out of any
breach by Lessee of its warranties,
representations, or covenants under this Lease;
(b) out of the use, management, or occupancy of
the Towers by Lessee, its agents, or invitees; (c)
out of any omissions, negligence or willful
misconduct of Lessee, its agents, servants,
employees, licensees, or invitees; (d) out of
failure of Lessee to comply with any laws,
statutes, ordinances, or regulations; (e) out of
Lessee's failure to maintain equipment in proper
working order; and (f) out of Lessee's failure to
comply with any of its other obligations under the
terms of this Lease.
(b) Lessor agrees to indemnify and defend Lessee
against any claim for damages, losses,
liabilities, costs, or expenses, including reasonable attorney's fees, arising
(a) out of any breach by Lessor of its warranties, representations, or covenants
under this Lease; (b) out of the use, management, or occupancy of the Towers by
Lessor, its agents, or invitees; (c) out of any omissions, negligence or willful
misconduct of Lessor, its agents, servants, employees, licensees, or invitees;
(d) out of failure of Lessor to comply with any laws, statutes, ordinances, or
regulations; (e) out of Lessor's failure to maintain equipment in proper working
order; and (f) out of Lessor's failure to comply with any of its other
obligations under the terms of this Lease.
Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other
party ("Indemnifying Party") reasonably prompt
notice of known claims giving rise to any claim
for indemnity, and the Indemnifying Party shall
have the right and opportunity to undertake the
legal defense of such claims. The Indemnified
Party and its counsel may nevertheless participate
in (but not control) such proceedings,
negotiations, or defense at its own expense. In
all such cases, the Indemnified Party will give
all reasonable assistance to the Indemnifying
Party, including making the Indemnified Party's
employees and documents available as reasonably
requested without charge.
35
Estoppel Certificate and Attornment.
-----------------------------------
Estoppel Certificate. Within ten (10) days after either
party's request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
Attornment. Lessee shall, in the event of a sale or
assignment of Lessor's interest in any of the Towers, or, if any of the Towers
come into the hands of any Trustee under a Deed of Trust or a mortgagee or any
other person, whether because of a foreclosure, exercise of a power of sale
under a mortgage or Deed of Trust, or otherwise, attorn to the purchaser or such
mortgagee, Trustee, or other person, and recognize the same as Landlord
hereunder. Lessee shall execute at Lessor's request any attornment agreement
reasonably required by any mortgagee, Trustee, or other such person to be
executed containing such provisions as such mortgagee, Trustee, or other person
reasonably requires, provided, however, that such attornment shall not modify
the terms of this Lease.
Failure to Execute Instruments. Either party's failure,
without good and reasonable cause, to execute instruments or certificates
provided for in this Paragraph 20, within fifteen (15) days after the receipt by
such party of a written request, shall be a default under his Lease.
Miscellaneous.
-------------
Relationship of Parties. Nothing contained herein and no
acts of the parties herein shall be deemed or construed as creating any
relationship between the parties hereto other than the relationship of Lessor
and Lessee or Landlord and Tenant.
Governing Law. This Lease shall be governed and construed
and enforced in accordance with the laws of the State of Georgia.
Captions. The captions contained in this Lease are included
solely for convenience and shall in no event affect or be used in connection
with the interpretation of this Lease.
Amendments. This Lease only may be amended or modified as
may be agreed upon by written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or
payable under this Lease, including all money expended pursuant to the
provisions hereof or on account of any
36
default in the performance and observance of any agreements or covenants herein,
shall bear interest at the rate of eight and one-half percent (8.5%) per annum
(or at such lesser rate which is the maximum permitted by applicable law) from
thirty (30) days after the date such sums become due or payable, or, in the
event one of the parties expends money because of a default by the other, from
thirty (30) days after the date the defaulting party received written notice
that such money was expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not
had dealings with any real estate broker or other person who may claim a
commission or finder's fee with respect to this Lease in any manner. Each party
shall hold harmless the other party from all damages resulting from any claims
that may be asserted against the Indemnified Party by any broker, finder, or
other person with whom the Indemnifying Party has or purportedly has dealt.
Notices. Notices given pursuant to this Lease shall be in writing
and shall be given by actual delivery or by mailing the same to the party
entitled thereto at the addresses set forth below or at any such other address
as any Party may designate in writing to any other Party pursuant to the
provisions of this paragraph. Notice given by mail shall be sent by United
States mail, certified or registered, return receipt requested or by nationally
recognized courier serviced providing receipt of delivery. Notices shall be
deemed to be received on the date of actual receipt, in the case of personal
delivery, or on the date of mailing, in the case of mailing. Notices shall be
served or mailed to the following addresses, subject to change as provided
above:
37
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx Broadcasting of Augusta, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
President
Phone: (000) 000-0000
Fax: (000) 000-0000
Waiver. It is agreed that the waiving of any of the covenants of
this Lease by either party shall be limited to the particular instance, and
shall not be deemed to waive any other breaches of such covenant or any
provision herein contained.
Accord and Satisfaction. No receipt of money by Lessor after the
termination of this Lease or after the service of any notice or after the
commencement of any suit reinstates, continues, or extends the term of this
Lease or affects any such notice or suit.
Limitation of Liability. Except as otherwise expressly stated
herein, Lessor shall not be liable or responsible to the Lessee or to anyone
claiming under or through the Lessee for any loss or damage caused by the acts
or omissions of any other tenants or any other users of the Towers, or Tower
Sites, or for any loss or damage to Lessee's Property caused by fire, water,
bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials
falling from the Towers, or the malfunction of any utility, facility, or
installation, or by reason of any other existing condition or defect in the
Towers; nor shall Lessor be liable or responsible to the Lessee for any injury
or damage suffered by the Lessee and allegedly caused by technical interference
with the Lessee's operations, by the activities of any other tenants or users of
the Towers and Tower Sites, 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
38
Lessee, or to any other person for property damage or personal injury, including
death. Lessor shall not be liable under any circumstances for loss of use, loss
of sponsorship or advertising revenue, or any other consequential damages
sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or
phrase contained in this Lease shall not serve to render the balance of this
Lease ineffective or void; and the same shall be construed as if such had not
been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary
stamps occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such
rules and regulations in writing which it may consider necessary and desirable.
Lessee agrees to abide by such rules and regulations so long as they do not
unreasonably interfere with Lessee's use and occupancy of the Towers or conflict
with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or
damages to Lessee's Property caused by acts of God, including, but not limited
to, wind, lightning, rain, ice, earthquake, floods, or rising water, or by
aircraft or vehicle damage. Lessor furthermore assumes no responsibility for
losses or damages to Lessee's Property caused by any person other than employees
and agents of Lessor. In the event that Lessor shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of acts
of God (including, but not limited to, wind, lightning, rain, ice, earthquake,
flood, or rising water), aircraft or vehicle damage or other casualty,
unforeseen soil conditions, acts of third parties who are not employees of
Lessor, strikes, lock-outs, labor troubles, inability to procure material,
failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of delay and the period for performance
of any such act shall be extended for a period equivalent to the period of such
delay.
Entire Agreement. This Lease, together with its Exhibits,
constitutes and sets forth the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous offers, negotiations, and agreements (whether oral or written)
between the parties (or any of their related entities) concerning the subject
matter of this Lease.
Counterparts and Duplicates. This Lease may be executed in
counterparts, which, when combined, shall constitute a single instrument. The
Lease may also be executed in duplicate editions, each of which shall be
effective as an original.
39
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
_________________________ By: ________________________________ (SEAL)
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX BROADCASTING OF AUGUSTA, INC.
_________________________ By: ________________________________ (SEAL)
Witness Name: Xxxxxx X. Xxxxxxx
Title: President
40
EXHIBIT D
---------
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$588,817.00 February ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for
value received, promises to pay to the order of Xxxxxxx Broadcasting of Coastal
Carolina, Inc., ("Payee"), the principal amount of FIVE HUNDRED EIGHTY-EIGHT
THOUSAND EIGHT HUNDRED SEVENTEEN DOLLARS ($588,817.00), 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, Four Thousand Four Hundred Eighty Four
Dollars and Seventeen Cents ($4,484.17). All remaining principal, together with
accrued and unpaid interest thereon shall be due and payable on the "Maturity
Date" (defined below). Each monthly payment shall be credited first to interest
then accrued and the remainder, if any, to principal, and interest shall
thereupon cease to accrue upon the principal paid.
(c) Payment on Maturity Date. The principal balance of, and any
------------------------
accrued and unpaid interest on, this Note shall be payable twenty (20) years
from the effective date of this Note (such date the "Maturity Date").
(d) Prepayment.
----------
(i) Payor may, at its option at any time, without premium
or penalty, prepay all or any portion of this Note.
(ii) Any prepayment of this Note shall be applied as
follows: first, to payment of accrued interest; and
-----
second, to payment of principal.
------
2. Events of Default.
-----------------
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this
Note when the same shall become due and payable (whether at
maturity or otherwise) and the continuation of such failure
for a period of ninety (90) days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or
for all or any substantial portion of its property or
assets;
(iv) makes a general assignment for the benefit of its
creditors; or
(c) an involuntary case or proceeding is commenced against Payor
under any Bankruptcy Law and is not dismissed, bonded or
discharged within ninety (90) days thereafter, or a court of
competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case or
proceeding;
(ii) appoints a Custodian of Payor or for all or
substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case the
order or decree remains unstayed and in effect for
ninety (90) days.
If any Event of Default shall have occurred and be continuing, Payee
may proceed to protect and enforce its rights either by suit in equity or by
action at law, or both, whether for specific performance of any provision of
this Note or in aid of the exercise of any power granted to Payee under this
Note.
2
(b) Assignment.
----------
The holders of this Note may not assign or otherwise transfer all or
any portion of their rights and obligations under this Note to any other person
or entity, without the prior written consent of the Payor, which consent shall
not be unreasonably withheld.
3. Certain Definitions.
-------------------
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
--------------
federal, state or foreign law for the relief of debtors or any arrangement,
reorganization, assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of Payor.
"Custodian" means any receiver, trustee, assignee, liquidator,
---------
custodian or similar official under any Bankruptcy Law.
"Event of Default" means any of the occurrences specified in Section 2
----------------
of this Note.
4. Miscellaneous
-------------
(a) Section Headings. The section headings contained in this
----------------
Note are for reference purposes only and shall not affect the meaning or
interpretation of this Note.
(b) Amendment and Waiver. No provision of this Note may be
--------------------
amended or waived unless Payor shall have obtained the written agreement of
Payee. No failure or delay in exercising any right, power or privilege hereunder
shall imply or otherwise operate as a waiver of any rights of Payee, nor shall
any single or partial exercise thereof preclude any other or future exercise
thereof or the exercise of any other right, power or privilege. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
(c) Successors, Assigns and Transferors. The foregoing, the
-----------------------------------
obligations of Payor and Payee under this Note shall be binding upon, and inure
to the benefit of, and be enforceable by, Payor and Payee, and their respective
successors and permitted assigns, whether or not so expressed.
(d) Governing Law. This Note shall be governed by, and construed
-------------
in accordance with, the laws of the State of Georgia, without giving effect to
any conflicts of laws principles thereof that would otherwise require the
application of the law of any other jurisdiction.
(e) Notices. Any notice, request, instruction or other document
-------
to be given hereunder by either party to the other shall be in writing and shall
be deemed given when received and shall be (i) delivered personally or (ii)
mailed by certified mail, postage prepaid, return receipt requested or (iii)
delivered by Federal Express or a similar overnight courier or (iv) sent via
facsimile transmission to the fax number given below, as follows:
3
If to Payor, addressed to:
Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Payee, addressed to:
Xxxxxxx Broadcasting of Augusta
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other party.
4
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of
the date hereinabove first written.
XXXXXXX FAMILY TOWERS, INC.
By: ____________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
5
EXHIBIT E
---------
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 AUGUSTA, INC. ("Seller") and XXXXXXX
FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset
Purchase Agreement") dated as of February ___, 2000 by and between Seller and
Purchaser. Capitalized terms used but not defined herein shall have the
meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell, convey
and assign to Purchaser all of Seller's right, title and interest to the Towers
and 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 the Towers described in Exhibits
A and B of the Asset Purchase Agreement.
2. Purchaser hereby accepts the sale, conveyance and assignment of
the Towers, effective as of 12:01 a.m. Eastern Time on February __, 2000.
3. Purchaser hereby assumes and agrees to pay and perform the
Assumed Liabilities pursuant to Section 2 of the Asset Purchase Agreement,
effective as of 12:01 a.m. Eastern Time on February __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request
of the other party, promptly obtain, execute and deliver, or cause to be
obtained, executed and delivered, to the other party such assignments, bills of
sale, endorsements, and other such instruments or documents to be executed by
Seller or Purchaser, as the case may be, in addition to this Agreement, in form
and substance reasonably satisfactory to the other party, as such other party
may reasonably deem necessary or desirable so as (i) to vest in Purchaser title
to and possession of the Towers and (ii) to perfect and record, if necessary,
the sale, assignment, conveyance, transfer and delivery to Purchaser of the
Towers.
5. This Agreement is made pursuant to, and is subject to all of the
terms, representations, warranties and covenants of, the Asset Purchase
Agreement, the terms of which are hereby incorporated by reference. In the event
of any conflict between this Agreement and the Asset Purchase Agreement, the
terms of the Asset Purchase Agreement shall govern.
[Signature page follows]
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the day and year first written above.
SELLER:
XXXXXXX BROADCASTING OF AUGUSTA, INC.
By: ___________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By: ___________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
EXHIBIT F
---------
FORM OF GROUND LEASES
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is entered into
as of this _____ day of February, 2000 by and between XXXXXXX BROADCASTING OF
AUGUSTA, INC. ("Assignor"), and XXXXXXX FAMILY TOWERS, INC., ("Assignee").
WHEREAS, Assignor and Xxxxxx X. Xxxxxxx ("Xxxxxxx"), entered into
those certain Lease Agreements, dated _____________, where Xxxxxxx leased
certain real property to Assignor (such Lease Agreements called herein the
"Ground Leases");
WHEREAS, Assignor intends to sell and convey to Assignee certain tower
assets used and held for use in the operation of broadcast station WGAC-AM,
Augusta, Georgia, pursuant to the terms of that certain Agreement of Sale (the
"Purchase Agreement"), dated as of February ___, 2000, by and between Assignor
and Assignee;
WHEREAS, in connection with such transaction, Assignor is required to
assign to Assignee all of Assignor's right, title and interest, as lessee, in
and to the Ground Leases.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assignment. Assignor hereby transfers, conveys and assigns to
----------
Assignee all of Assignor's right, title and interest in, to and under the Ground
Leases.
2. Assumption of Ground Leases Liabilities. Assignee assumes the
---------------------------------------
liabilities, duties and obligations of Assignor under the Ground Leases which
accrue on or after the date hereof, and Assignor shall have no further liability
or responsibility therefor.
3. Counterparts. This Assignment may be executed in counterparts.
------------
[Signature pages follow]
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the day and year first written above.
[SEAL] ASSIGNOR:
XXXXXXX BROADCASTING OF AUGUSTA, INC.
ATTEST: By: __________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
____________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: _________________)
)ss.
COUNTY OF _________________)
This is to certify that on the _____ day of [February, 2000], before
me personally appeared Xxxxxx X. Xxxxxxx with whom I am personally acquainted,
who, being by me duly sworn, says:
That he is President and B. Xxxxxxxx Xxxxxxx is the Secretary of
XXXXXXX BROADCASTING OF AUGUSTA, INC., the corporation described in and which
executed the foregoing instrument; that he knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal, and the name of the corporation was subscribed thereto by the said
President, attested by said Secretary, and said common seal was affixed, all by
authority duly conferred, and that said instrument is the act and deed of said
corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
___________________
NOTARY PUBLIC
My commission expires:
_______________________
[SEAL] ASSIGNEE:
XXXXXXX FAMILY TOWERS, INC.
ATTEST: By: ___________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
____________________________
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: _________________)
)ss.
COUNTY OF _________________)
This is to certify that on the _____ day of February, 2000, before me
personally appeared Xxxxxx X. Xxxxxxx with whom I am personally acquainted, who,
being by me duly sworn, says:
That he is Chief Executive Officer and B. Xxxxxxxx Xxxxxxx is the
Secretary of XXXXXXX FAMILY TOWERS, INC., the corporation described in and which
executed the foregoing instrument; that she knows the common seal of said
corporation; that the seal affixed to the foregoing instrument is said common
seal, and the name of the corporation was subscribed thereto by the said Chief
Executive Officer, attested by said Secretary and said common seal was affixed,
all by authority duly conferred, and that said instrument is the act and deed of
said corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
___________________
NOTARY PUBLIC
My commission expires:
_______________________
EXHIBIT G
---------
FORM OF LEASE AGREEMENT
