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EXHIBIT 10.17
AGREEMENT OF SALE (O&O)
This Agreement of Sale (the "Agreement") is made this ___ day of
February, 2000, between Xxxxxxx Broadcasting of Eastern Pennsylvania, Inc., a
Delaware corporation (the "Seller") and Xxxxxxx Family Towers, Inc., a Delaware
corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprising one
parcel of real property and four (4) communications tower facilities (the
"Towers") located in East Norriton, Pennsylvania used in the operation of radio
broadcast station WWDB-AM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Towers and certain real and personal property belonging to Seller and
associated with the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. Agreement to Sell and Purchase.
Seller agrees to sell, transfer, assign, convey and deliver to Buyer
and Buyer agrees to purchase and accept from Seller, the following assets upon
the terms and conditions contained herein (collectively, the "Assets"):
(a) Those certain tracts of land, and easements or
appurtenances incident to such tracts of land, that are associated with the
Tower Site (collectively, such land, easements and appurtenances, the "Land"),
and the Towers, such Towers and such Land and are more particularly described
in Exhibit A attached hereto and incorporated herein.
2. Assumption of Liabilities
(a) Upon the terms and subject to the conditions
contained herein, Buyer shall assume and become responsible for any and all
liabilities and obligations arising out of, or relating to events occurring
after 12:01 am Eastern Standard Time on the Closing Date (the "Adjustment
Time") the ownership of the Land and the Towers, and the operation of the
business relating to the Assets (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13, 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 operator of the business relating to the Assets
subject to the provisions of Section 13 prior to the Closing Date (the
"Retained Liabilities") shall remain the responsibility of Seller. Buyer shall
not be required to defend any suit or claim arising out of any Retained
Liabilities, and Seller shall and hereby agrees to satisfy in due course all
such Retained Liabilities, and Seller shall protect and forever hold Buyer
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harmless from all claims with respect to such Retained Liabilities. It is
understood and agreed that all liabilities relating to the Assets that arise
out of any act, event, or transaction of Buyer following the Closing Date (the
"Assumed Liabilities") shall be the responsibility of Buyer. Seller shall not
be required to defend any suit or claim arising out of any Assumed Liabilities,
and Buyer shall and hereby agrees to satisfy in due course all such Assumed
Liabilities, and subject to the provisions of Section 13 Buyer shall protect
and forever hold Seller harmless from all claims with respect to such Assumed
Liabilities.
3. Purchase Price.
(a) The purchase price for the Assets shall be the
amount of Three Hundred Thirty Six Thousand One Hundred One Dollars
($336,101.00) (the "Purchase Price"). The Purchase Price shall be adjusted at
the Closing by the amount of any prorations derived by operation of Section 6
hereof, and for any other normal income and expense items related to the
operation of the Tower Sites as of 12:01 am on the day on which the Closing
occurs. The Purchase Price shall be allocated among the Assets in accordance
with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of
the Purchase Price, the Assumed Liabilities and other relevant items among the
Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). Buyer and Seller will each report the federal, state, and
local and other tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
4. Delivery of Purchase Price
(a) The Purchase Price shall be payable at Closing (as
defined in Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall
deliver to Seller at Closing an unsecured promissory note of Buyer in the
aggregate principal amount of Three Hundred Thirty Six Thousand One Hundred One
Dollars ($336,101.00), substantially in the form of Exhibit B (the "Purchase
Note").
5. Transfer of Towers; Title Insurance.
(a) Transfer of title to the Land shall be by deed from the
Seller to the Buyer (a "Deed"), which Deed shall be in the Form of Exhibit C
attached hereto and incorporated herein. Transfer of ownership of the Towers
and assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be
pursuant to the Assignment, Xxxx of Sale and Assumption Agreement from the
Seller to Buyer in the form of Exhibit D attached hereto and incorporated
herein (the "Assignment, Xxxx of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of
all liens, encumbrances other than Permitted Encumbrances, if any; otherwise
the title to the Land shall be good and marketable or such as will be insured
by a reputable title insurance company at regular rates. "Permitted
Encumbrances" shall mean: (i) encumbrances for taxes, assessments, or
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governmental charges or levies which are not yet due and payable, or that,
subject to adequate security for payment, are being contested; (ii) existing
building restrictions, ordinances, easements of roads, privileges, or rights of
public service companies or other rights of way, other restrictions or
conditions of record, if any or other encumbrances disclosed in this Agreement
(including the Exhibits attached hereto); (iii) easements, rights of way or
other encumbrances that do not have a material adverse effect on the Assets or
the operation of the business relating to the Assets as currently operated;
(iv) encumbrances imposed by law, such as materialmen's, mechanic's, carrier's,
workmen's, or repairmen's liens or other similar encumbrances attaching in the
ordinary course of business or securing obligations that are not overdue; (v)
encumbrances securing indebtedness, which will be removed prior to or at the
Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed
by Buyer pursuant to Section 2.
(c) As soon as practicable following the Closing, or at
such other time as the parties agree, Seller, at its expense, shall obtain and
deliver to Buyer a commitment for title insurance (the "Title Commitment")
issued by a nationally recognized title company in the ALTA Owner's Form Policy
of Title Insurance (each a "Title Policy" and collectively, "Title Policies")
covering the Land, setting forth the current status of title thereto, showing
all recorded liens, claims, encumbrances, easements, rights-of-way,
encroachments, reservations, restrictions and any other matters of public
record affecting title to the Land pursuant to which such title company agrees
to issue to Buyer the Title Policies. The cost of the Title Policies shall be
borne by the Buyer. Seller shall execute such customary documents as the title
company reasonably requests, including, but not limited to, an affidavit of
debts and liens and customary closing statements.
6. Apportionment of Real Estate Taxes, Rent, Utilities.
(a) Current real estate taxes, rent, utilities and all
other normal income and expense items related to the Assets shall be
apportioned between the parties to reflect the principle that all expenses and
income arising from the operation of the Assets up through the Adjustment Time
shall be for the account of Seller, and all expenses and income arising from
the operation of the business relating to the Assets acquired by Buyer after
the Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date,
or at such other time as the parties agree, Buyer shall deliver to Seller a
certificate from Buyer which sets forth as of the Adjustment Time, all
adjustments to be made as provided in Section 6(a) above (the "Buyer's
Certificate"). Buyer shall provide Seller or its representatives access to
copies of such portions of books and records Seller may reasonably request
solely for the purposes of verifying such adjustments. The Buyer's Certificate
shall be final and conclusive unless objected to by Seller in writing within
ninety (90) days after delivery. Buyer and Seller shall attempt jointly to
reach agreement as to the amount of the adjustments to be made hereunder within
thirty (30) days after receipt of such written objection, which agreement, if
achieved, shall be binding upon all parties to this Agreement and not subject
to dispute or review.
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(c) In the event of a disagreement between Buyer and
Seller with respect to the accounting to be made hereunder, the parties agree
that a public accounting firm chosen jointly by Buyer and Seller shall be the
final arbiter of such disagreement.
(d) Any amounts due for the adjustments provided for
herein shall be paid within thirty (30) business days after final
determination.
7. Expenses.
(a) Seller and Buyer shall share equally the costs of
preparation of the Deed, acknowledgement of the Deed, Federal, state and local
revenue stamps, and real estate transfer taxes.
(b) All other costs and expenses incurred by the Parties
in this transaction, including, but not limited to attorneys' fees, shall be
paid by the party incurring them.
8. Closing; Closing Conditions.
(a) Closing of the transactions contemplated by this
Agreement (the "Closing") shall occur at a place and time mutually agreeable to
Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good
faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be
conditioned upon (i) all representations and warranties of Buyer being then
true and complete in all material respects as if made on and as of the Closing
Date, except to the extent that any such representation or warranty is made as
of a specified date, in which case such representation or warranty shall have
been true and correct as of such date, (ii) all consents of third parties
required for Buyer to consummate the transactions contemplated under this
Agreement shall have been obtained, (iii) no order, decree or judgment of any
court, agency or other governmental authority shall have been issued based on
or arising out of the conduct, action, inaction, qualifications or status of
Buyer or any of its affiliates, which would render it unlawful as of the
Closing Date to effect the transactions contemplated by this Agreement in
accordance with its terms, (iv) the delivery by Buyer of the Purchase Price in
the manner set forth in Section 4(b), and (v) the delivery by Buyer of Buyer's
Closing Documents (as defined in Section 9 hereof) on or before the Closing
Date.
(c) Buyer's obligation to close hereunder shall be
conditioned upon (i) all representations and warranties of Seller being then
true and complete in all material respects as if made on and as of the Closing
Date, except to the extent that any such representation or warranty is made as
of a specific date, in which case such representation or warranty shall have
been true and correct as of such date, (ii) all consents of third parties
required for Seller to consummate the transactions contemplated under this
Agreement shall have been obtained, (iii) no order, decree or judgment of any
court, agency or other governmental authority shall have been issued based on
or arising out of the conduct, action, inaction, qualifications or status of
Seller or any of its affiliates, which would render it unlawful as of the
Closing Date to effect that
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transactions contemplated by this Agreement in accordance with its terms, and
(iv) the delivery by Seller of Seller's Closing Documents as set forth in
Section 9 hereof.
9. Closing Deliveries.
(a) At Closing, Seller shall execute and/or deliver to
Buyer the following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Xxxx of Sale and Assumption
Agreement;
(iii) A certificate from an officer of Seller
reasonably acceptable to Buyer confirming
the accuracy of the representations and
warranties in Section 10 as of the Closing
Date;
(iv) Authorizing resolutions or minutes from
Seller approving this Agreement and the
transactions contemplated herein;
(v) A FIRPTA affidavit to the effect that
Seller is not a "foreign person" (as
defined in Section 1445(f)(3) of the Code
and the regulations issued thereunder); and
(vi) A lease agreement, by and between Buyer, as
lessor, and Seller, as lessee,
substantially in the form of Exhibit E (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 E (the
"Lease Agreement"); and
(v) The Assignment, Xxxx of Sale and Assumption
Agreement.
(c) Seller's Closing Documents and Buyer's Closing
Documents shall be collectively called herein the "Closing Documents". Buyer
and Seller agree that such other
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documents as may be legally necessary or appropriate to carry out the terms of
this Agreement or as reasonably requested by the other party shall be executed
and delivered by the appropriate party at Closing.
10. Representations and Warranties of Seller.
As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Tower
and the Land (or such condition of title as will be insured by any reputable
title insurance company at their regular rates), and the Assets are free and
clear of liens, encumbrances, restrictions and security interests other than
Permitted Encumbrances.
(b) Seller has full power and authority to execute and
deliver this Agreement and Seller's Closing Documents, and to perform its
obligations hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when
executed and delivered, will constitute valid and binding agreements of Seller,
enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict
with, or result in, a breach of the terms of any agreements or instruments to
which the Seller is a party or which would result in the creation or imposition
of any lien, charge or encumbrance on, or give to others any interest in or
right to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing,
all outstanding obligations for utilities and taxes through the Closing Date
except for such items as are covered by the proration of items of income and
expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or
filing with, any person, entity, or authority will be required in connection
with the execution and delivery of this Agreement or the transactions
contemplated by this Agreement.
(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.
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 resolution of such claim. No claim
may be brought under this Agreement unless written notice describing in
reasonable detail the nature of the claim is given on or prior to the last day
of the twelve (12) month period following the Closing Date.
13. Indemnification.
(a) For a period of one (1) year from the date of this
Agreement, Seller shall indemnify, defend, and hold Buyer, its affiliates,
partners, employees, officers, directors, agents, and representatives harmless
from and against any and all reasonable losses, costs, expenses, liabilities,
penalties, claims, and other damages including, but not limited to, reasonable
attorney's fees and other costs and expenses, including reasonable costs of
investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or
warranties, or the breach of any other
provision contained in this Agreement;
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(ii) nonfulfillment by Seller of any of its
covenants or agreements contained herein or
in any Seller's Closing Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages
resulting from Sellers' operations or
ownership of any Tower Site prior to the
Closing Date, including any and all
liabilities arising under the Assets which
relate to events occurring prior to the
Closing Date.
(b) 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;
(iv) any and all losses, liabilities or damages
resulting from Buyer's operations or
ownership of any Tower Site subsequent to
the Closing Date, including any and all
liabilities arising under the Assets which
related to events occurring subsequent to
the Closing Date.
(c) In the event either Buyer or Seller (the
"Indemnified Party") becomes aware of circumstances which would entitle such
party to indemnification by the other party hereunder (the "Indemnifying
Party"), the Indemnified Party shall give the Indemnifying Party prompt written
notice, with reasonable detail, of such claim. Upon receipt of such notice by
the Indemnified Party to the Indemnifying Party, the Indemnifying Party shall
have the option of defending against such pending litigation through engagement
of legal counsel of its choice, provided, however, that the Indemnifying
Party's choice of legal counsel must be acceptable to the Indemnified Party in
its reasonable discretion. In the event the Indemnifying Party elects to
defend, the Indemnifying Party shall keep the Indemnified Party fully informed
on a timely basis of the status of the pending litigation. In the event that
the Indemnifying Party elects to defend and is unsuccessful in such defense, it
shall promptly pay to the Indemnified Party any and all losses, costs,
expenses, liabilities, penalties, claims and other damages as described above,
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including but not limited to, reasonable attorney's fees and other costs and
expenses associated with the pending litigation being so defended. In the event
the Indemnifying Party elects not to defend and the Indemnified Party defends,
but is unsuccessful, then the Indemnifying Party shall promptly pay to the
Indemnified Party any and all losses, costs, expenses, liabilities, penalties,
claims and other damages, as described above, including, but not limited to,
reasonable attorney's fees and other costs and expenses incurred, including
reasonable costs of investigation. In the event that Indemnifying Party elects
not to defend and the Indemnified Party defends successfully, then the
Indemnifying Party shall promptly pay to the Indemnified Party any and all
costs and expenses incurred, including, but not limited to, reasonable
attorney's fees and other costs and expenses incurred, including reasonable
costs of investigation. The Indemnifying Party shall reimburse the Indemnified
Party upon demand for any payment made by the Indemnified Party at any time
after Closing, based on the final judgement of any court of competent
jurisdiction or pursuant to a bona fide compromise or settlement of claims,
demands or actions in respect to any damages to which the foregoing
indemnification relates.
(d) Limitations on Seller Indemnification.
Notwithstanding anything in this Agreement to the contrary, Seller's obligation
to indemnify Buyer shall be subject to all of the following limitations:
(i) The amount of any losses, costs, expenses,
liabilities, penalties, claims, and other
damages ("Losses") incurred by Buyer shall
be reduced by (A) the amount Buyer recovers
(after deducting all attorneys' fees,
expenses, and other out-of-pocket costs of
recovery) from any insurer or other party
liable for such Losses, and Buyer shall use
commercially reasonable efforts to effect
any such recovery and (B) any tax benefit
realized by Buyer or its owners as a result
of any such Loss.
(ii) Buyer shall be entitled to indemnification
only for Losses as to which Buyer has given
Seller written notice describing in
reasonable detail the nature and basis for
such indemnification ("Notice of Claim") on
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 Forty Thousand Dollars
($40,000.00) and Seller shall have no other
liability or responsibility for
indemnification hereunder.
(e) Buyer's Exclusive Remedy. Subsequent to the Closing,
indemnification under this Section 13 shall be the exclusive remedy of Buyer
with respect to any legal, equitable or other claim for relief based upon this
Agreement or arising hereunder.
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(f) Limitation on Buyer's Indemnification.
Notwithstanding anything in this Agreement to the contrary, Buyer's obligation
to indemnify Seller shall be subject to all of the following limitations:
(i) The amount of any Losses incurred by Seller
shall be reduced by (A) the amount Seller
recovers (after deducting all attorneys'
fees, expenses and other out-of-pocket
costs of recovery) from any insurer or
other party liable for such Losses, and
Seller shall use commercially reasonable
efforts to effect any such recovery and (B)
any tax benefit realized by Buyer or its
owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification
only for Losses as to which Seller has
given Buyer a Notice of Claim on or prior
to the first anniversary of the Closing
Date.
(iii) Any amounts owed to Seller by Buyer
pursuant to this Section 13 shall be
limited to Forty Thousand Dollars
($40,000.00) and Buyer shall have no other
liability or responsibility for
Indemnification hereunder.
(g) Seller's Exclusive Remedy. Subsequent to the
Closing, indemnification under this Section 13 shall
be the exclusive remedy of Seller with respect to
any legal, equitable or other claim for relief based
upon this Agreement or arising hereunder.
14. Termination; Liquidated Damages.
(a) Right of Termination. This Agreement may be
terminated prior to Closing:
(i) By written notice from a party that is not
then in material breach of this Agreement
if:
(A) The other party has continued
in material breach of this
Agreement for twenty (20) days
after written notice of such breach
from the terminating party;
(B) Closing does not occur by May
31, 2000 or such other date as is
mutually agreed to by Buyer and
Seller.
(b) Obligations Upon Termination.
(i) Upon termination of this Agreement, each
party shall thereafter remain liable for
breach of this Agreement prior to such
termination and remain liable to pay and
perform any obligation under Section 13.
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(ii) If Closing shall not have occurred,
Seller's sole remedy at law or in equity
for any breach or default by Buyer
described in Section 14(a)(i)(A) shall be
the termination by Seller of this Agreement
by giving of written notice to Buyer
pursuant to Section 14(a)(i)(A).
(c) Termination Notice. Each notice given by a party
pursuant to Section 14(a) to terminate this Agreement shall specify the
subsection of Section 14(a) pursuant to which such notice is given. If at the
time a party gives a termination notice, such party is entitled to give such
notice pursuant to more than one subsection of Section 14(a), the subsection
pursuant to which such notice is given and termination is effected shall be
deemed to be the subsection specified in such notice provided that the party
giving such notice is at such time entitled to terminate this Agreement
pursuant to the specified subsection.
15. Default; Disputes.
If Seller fails to perform under this Agreement, the Buyer may
exercise any right he has against the Seller, including bringing an action for
specific performance. The remedies provided by this Section are in addition to
any right or remedies provided elsewhere in this Agreement or at law or in
equity. In the event a dispute arises between the Parties over the
interpretation of this Agreement, or the performance, alleged non-performance
or breach by either Party hereunder, the Parties hereby agree to seek
resolution of such dispute in good faith through an alternative dispute
resolution process mutually agreeable to the Parties prior to the institution
of any legal proceedings related thereto.
16. Liabilities.
Buyer shall not, in connection with the purchase and sale of Assets
contemplating herein, assume any liabilities or obligations of the Seller
except as specifically set forth herein.
17. Third Party Brokerage.
Seller and Buyer hereby represent and warrant to each other that
neither Seller or Buyer has dealt with any broker or finder in connection with
the transaction which is the subject of this Agreement. Each party hereby
agrees to indemnify, save harmless and defend the other from and against all
claims, losses, liabilities and expenses, including reasonable attorney's fees,
arising out of any claim made by any broker, finder or other intermediary who
claims to have dealt with such party in connection with the transaction which
is the subject of this Agreement. The provisions of the paragraph shall survive
Closing hereunder.
18. Entire Agreement.
This Agreement (which includes the exhibits and schedules attached
hereto) constitutes the entire agreement between the Parties and there are no
other understandings, representations or warranties, oral or written, relating
to the subject matter hereof.
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19. Amendment.
This Agreement may not be changed, modified or amended, in whole or in
part, except in writing, signed by all parties.
20. Notice.
Notices given pursuant to this Agreement shall be in writing and shall
be given by actual delivery or by mailing the same to the party entitled
thereto at the addresses set forth below or at any such other address as any
Party may designate in writing to any other Party pursuant to the provisions of
this Section. Notice given by mail shall be sent by United States mail,
certified or registered, return receipt requested or by nationally recognized
courier serviced providing receipt of delivery. Notices shall be deemed to be
received on the date of actual receipt, in the case of personal delivery, or on
the date of mailing, in the case of mailing. Notices shall be served or mailed
to the following addresses, subject to change as provided above:
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If to the Seller: Xxxxxxx Broadcasting of Eastern
Pennsylvania, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax:(000) 000-0000
If to the Buyer: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax:(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax:(000) 000-0000
21. Construction.
Whenever used in this Agreement the singular shall include the plural,
the plural the singular, and the use of any gender shall be applicable to all
genders.
22. Assignment and Recording.
Seller hereby covenants not to assign or record this Agreement except
with the prior written consent of the Buyer. Buyer may assign this Agreement
freely to any affiliated entity, provided such assignment shall not relieve
Buyer of its obligations hereunder.
23. Binding Effect.
This Agreement and all of its terms and conditions shall extend to and
be binding upon the Parties hereto and upon their respective heirs, executors,
administrators, successors and assigns.
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24. Further Assurances.
Seller and Buyer agree to execute and deliver any further documents or
assurances that in law or otherwise are necessary, desirable or proper to
consummate the transactions contemplated by this Agreement and to vest,
perfect, assign or confirm, of record or otherwise, in Buyer title to the
Assets.
25. Governing Law.
This Agreement is made and shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania.
26. Headings.
The headings and captions in this Agreement are for convenience only
and are not part of this Agreement.
27. Interpretation.
Neither this Agreement nor any provision contained herein shall be
interpreted for or against either party solely because that party or that
party's legal representative drafted the provision.
28. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute the same
Agreement.
29. Severability.
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then such provision shall be
severed from this Agreement and the remainder shall remain in full force and
effect.
30. Covenant of Seller.
Seller shall make all reasonable efforts to resolve any title or
restriction issues prior to the Closing, but will continue these efforts
subsequent to the Closing to the extent reasonably necessary.
14
15
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound,
have caused this Agreement to be duly executed on the day and year first
written above.
SELLER:
XXXXXXX BROADCASTING OF
EASTERN PENNSYLVANIA, INC.
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
BUYER:
XXXXXXX FAMILY TOWERS, INC.
By:
---------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
15
16
INDEX OF EXHIBITS
Exhibit A Description of Land and Towers
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Xxxx of Sale and
Assumption Agreement
Exhibit E Form of Lease Agreement
17
EXHIBIT A
DESCRIPTION OF LAND AND TOWERS
WWDB-AM
Those four certain communications towers used in the operation of WWDB-AM
situated on that certain tract of land more particularly described as follows:
ALL THAT CERTAIN lot or piece of ground situate in the Township of East
Norriton, County of Xxxxxxxxxx and Commonwealth of Pennsylvania, bounded and
described according to a Sub-division Plan of East Norriton Industrial Park
made by Xxxxxx X. Xxxxxx, Civil Engineer and Surveyor, Norristown,
Pennsylvania, dated 3/9/1967 and last revised 4/14/1967 as follows, to wit:
BEGINNING at a point in the bed of 50 feet wide access and drainage
right-of-way on the Southeasterly side of Foundry Road (60 feet wide) said
point being measured the two following courses and distances from a point of
curve on the Southwesterly side of Germantown Pike (75 feet wide): (1) along
the arc of a circle curving to the left having a radius of 20 feet the arc
distance of 31.42 feet to a point of tangent on the Southeasterly side of
Foundry Road and (2) South 22 degrees 12 minutes 15 seconds West along the
southwesterly side of Foundry Road 295.00 feet to the point of beginning;
thence extending from said point of beginning through the bed of said 50 feet
wide access and drainage right-of-way along the rear lines of lots Nos. 1, 2,
3, 4 and partly along rear line of Xxx Xx. 0, Xxxxx 00 degrees 47 minutes 45
seconds East, crossing over the bed of a 30 feet wide drainage easement, and
crossing over the bed of an existing creek, 936.77 feet to a point on rear line
of said Lot No. 5 and in the bed of a 50 feet wide access and drainage
right-of-way; thence extending along the same along the arc of a circle curving
to the left having a radius of 275 feet the arc distance of 110.03 feet to a
point on line of Lot No. 7 and on the Easterly side of a 20 feet wide drainage
easement; thence extending along the same South 22 degrees 12 minutes 15
seconds West 185.88 feet to an iron pin a corner of lands now or late of
Xxxxxxxxx Xxxxxx; thence extending along the same South 45 degrees 42 minutes
15 seconds West, crossing over the bed of the aforesaid 30 feet wide drainage
easement, 421.52 feet to an iron pin a corner of lands now or late of Hownet
Corporation; thence extending along the same the next two following courses and
distances, viz: (1) North 48 degrees 50 minutes 07 seconds East 67.95 feet to a
point of curve; and (2) along the arc of a circle curving to the left having a
radius of 535 feet the arc distance of 248.67 feet to the first mentioned point
and place of beginning.
BEING Lot No. 8 on the above mentioned Plan.
BEING Parcel No. 33-00-02752-00-5.
BEING the same premises which Mid-Central Associates, Inc., a Pennsylvania
Corporation, by Indenture bearing date the 12th day of September, A.D., 1967,
recorded in the Office for the Recording of Deeds, in and for the County of
Xxxxxxxxxx, at Norristown, Pennsylvania, in Deed
18
Book 3484 page 806, granted and conveyed unto WTEL, Inc., a Delaware
corporation, its successors and assigns, in fee and being on the same premises
acquired by Grantor by deed dated October 31, 1986, recorded in Deed Book 4818
page 1634 in the Office of the Recorder of Deeds, County of Xxxxxxxxxx,
Pennsylvania.
TOGETHER WITH THE free and uninterrupted use, right, liberty and privilege of
the above said 50 feet wide access and drainage rights-of-way in common with
the owners, tenants and occupiers of other lots of ground abutting thereon and
entitled to the use thereof; SUBJECT, however, to the payment of the expenses
in maintaining same in good order and repair.
UNDER AND SUBJECT to covenants, conditions, restrictions, and easements of
record, if any, as are now valid and enforceable.
19
EXHIBIT B
FORM OF PURCHASE NOTE
$336,101.00 February ___, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for
value received, promises to pay to the order of Xxxxxxx Broadcasting of Eastern
Pennsylvania, a Delaware Corporation, ("Payee"), the principal amount of THREE
HUNDRED THIRTY-SIX THOUSAND ONE HUNDRED ONE DOLLARS ($336,101.00), 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 TWO THOUSAND FIVE HUNDRED FORTY FIVE DOLLARS AND
TWENTY-THREE CENTS ($2,545.23). 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.
20
2. Events of Default.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under
this Note when the same shall become due and payable
(whether at maturity or otherwise) and the
continuation of such failure for a period of ninety
(90) days; or
(b) Payor pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for
relief against it in an involuntary case or
proceeding;
(iii) consents to the appointment of a Custodian
of it or for all or any substantial portion
of its property or assets;
(iv) makes a general assignment for the benefit
of its creditors; or
(c) an involuntary case or proceeding is commenced
against Payor under any Bankruptcy Law and is not
dismissed, bonded or discharged within ninety (90)
days thereafter, or a court of competent
jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against Payor in an
involuntary case or proceeding;
(ii) appoints a Custodian of Payor or for all or
substantially all of its properties; or
(iii) orders the liquidation of Payor; and in
each case the order or decree remains
unstayed and in effect for ninety (90)
days.
(d) The following terms used in this Note have the
meanings assigned below:
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
federal, state or foreign law for the relief of debtors or any arrangement,
reorganization, assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of Payor.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
2
21
"Event of Default" means any of the occurrences specified in Section 2
of this Note.
If any Event of Default shall have occurred and be continuing, Payee
may proceed to protect and enforce its rights either by suit in equity or by
action at law, or both, whether for specific performance of any provision of
this Note or in aid of the exercise of any power granted to Payee under this
Note.
3. Assignment. The holders of this Note may not assign or
otherwise transfer all or any portion of their rights and obligations under
this Note to any other person or entity, without the prior written consent of
the Payor, which consent shall not be unreasonably withheld.
4. Miscellaneous.
(a) Section Headings. The section headings contained in
this Note are for reference purposes only and shall not affect the meaning or
interpretation of this Note.
(b) Amendment and Waiver. No provision of this Note may
be amended or waived unless Payor shall have obtained the written agreement of
Payee. No failure or delay in exercising any right, power or privilege
hereunder shall imply or otherwise operate as a waiver of any rights of Payee,
nor shall any single or partial exercise thereof preclude any other or future
exercise thereof or the exercise of any other right, power or privilege. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(c) Successors, Assigns and Transferors. The foregoing,
the obligations of Payor and Payee under this Note shall be binding upon, and
inure to the benefit of, and be enforceable by, Payor and Payee, and their
respective successors and permitted assigns, whether or not so expressed.
(d) Governing Law. This Note shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania,
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
22
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 Eastern
Pennsylvania, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Fax:(000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other party.
4
23
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
24
EXHIBIT C
FORM OF DEED
25
EXHIBIT D
FORM OF ASSIGNMENT, XXXX OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Xxxx of Sale and Assumption Agreement (this "Agreement") is
made effective as of 12:01 a.m. Eastern Time, on the ____ day of February, 2000
by and between XXXXXXX BROADCASTING OF EASTERN PENNSYLVANIA, INC. ("Seller")
and XXXXXXX FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the
"Asset Purchase Agreement") dated as of February ___, 2000 by and between
Seller and Purchaser. Capitalized terms used but not defined herein shall have
the meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell,
convey and assign to Purchaser all of Seller's right, title and interest to the
Tower and Tower Leases and Purchaser shall assume the Assumed Liabilities, as
defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties hereto agree as follows (capitalized terms used herein but not
defined herein shall have the meaning given to them in the Asset Purchase
Agreement):
1. Seller hereby bargains, sells, conveys, assigns and
delivers all of Seller's right, title and interest in and to the Towers, such
Tower more particularly described in Exhibit A 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.
26
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.
27
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the day and year first written above.
SELLER:
XXXXXXX BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By:
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASER:
XXXXXXX FAMILY TOWERS, INC.
By:
--------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
28
EXHIBIT E
FORM OF LEASE AGREEMENT
29
LEASE AGREEMENT (O&O - WWDB-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 EASTERN PENNSYLVANIA, a Delaware corporation
("Lessee").
WITNESSETH:
WHEREAS, Lessor owns four communications towers described on Exhibit A
attached hereto (the "Towers"), together with other improvements on a certain
tract of real estate located at East Norriton, Pennsylvania, as such land is
more fully described in Exhibit B attached hereto (hereinafter referred to as
the "Tower Site"; the term "Tower Site" shall also include any appurtenant
easements or improvements on such land, including, without limitation, any
buildings or other structures);
WHEREAS, Lessor desires to lease the Tower Site and the Towers for the
purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Towers from
Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 COMMENCEMENT OF TERM. The term of this Lease and the
payment of rent and other performances in accordance with the terms of this
Lease shall commence on the date hereof.
1.02 EXHIBITS. All Exhibits referred to in this Lease are
incorporated herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 LEASED PREMISES. Lessor hereby leases to Lessee, and
Lessee leases from Lessor, with a right of access thereto and parking therefor
in accordance with Section 9:
(a) The Towers for the purpose of the broadcast
transmission of WWDB-AM, East Norriton, Pennsylvania;
(b) Space in the transmitter building on the
Tower Site, as such space is more fully described in Exhibit C hereto (the
"Transmitter Building"), for the purposes of the housing, operation and
maintenance of Lessee's transmitter and related equipment by
30
Lessee in the Building for the aforementioned purposes immediately prior to the
effective date of this Lease (such space "Lessee's Building Space"); and
(c) Space in the transmitter building on the
Tower Site, as such space is more fully described in Exhibit C hereto (the
"Building"), for the purposes of the housing, operation and maintenance of
Lessee's transmitter and related equipment (such space "lessee's Building
Space"); and
(d) The Tower Site.
(e) All of the property leased under this
Paragraph 2.01 shall hereinafter be called the "Leased Premises".
2.02 OWNERSHIP OF PROPERTY; ACCESS.
(a) Except for "Lessee's Property" (as defined
below), all tenant improvements including all fixtures and trade fixtures shall
become the property of the Lessor, and shall remain with the Leased Premises
after the Lessee vacates same.
(b) The Lessee's antenna, transmission line,
and other equipment, together with any replacements thereof and modifications
and additions thereto, which are permitted hereunder, shall be and remain
Lessee's Property, and are hereinafter referred to as "Lessee's Property".
Lessee will be solely responsible for the maintenance of Lessee's Property,
including all expenses associated with such repair.
(c) Lessee shall have reasonable right of
access to the Leased Premises at all times in emergency situations and whenever
reasonably necessary for equipment maintenance and repair. Lessee shall also
have reasonable rights of access at any time to the Leased Premises for
ingress, egress, utilities, the locating and usage of cabling and related
equipment, operations, maintenance, repair or remodeling, or other engineering
purposes.
3. PERMITTED USES.
3.01 BY LESSEE.
(a) Subject to all appropriate government
approvals, including the Federal Communications Commission ("FCC"), the Leased
Premises may be used only for activities related to the operation of radio
broadcast stations. Such operations, shall be conducted in accordance with the
standards imposed by the FCC and any other governmental body with authority
over such transmission and operations.
(b) Except as expressly permitted by this Lease
and unless prior written approval of Lessor has been given, Lessee shall not
construct or make any improvements or install any equipment on the Towers.
Lessee may repair and maintain equipment as it reasonably deems necessary to
its operations within Lessee's Space in all respects in compliance with the
terms hereof. Lessee shall maintain the Leased Premises, Lessee's
2
31
interior and exterior equipment, and all other improvements in an orderly and
professional manner.
3.02 BY LESSOR.
(a) Subject to the rights elsewhere granted to
Lessee in this Lease and with prior notice to Lessee and no loss of service or
interruption (beyond a temporary, non-recurring and de minimis amount), Lessor
reserves the right to use the Towers, at its own expense, as it sees fit and to
fasten additional equipment to the Towers for any purpose, including the right
to install transmitting and/or receiving antennas of others; provided that
Lessor shall use reasonable efforts to restrict any loss of Lessee's service or
interruption pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00
a.m.
(b) Subject to the rights elsewhere granted to
Lessee in this Lease, Lessor shall have the right to use for itself or lease to
others the remainder of the Tower Site or use of any of the improvements
thereon, space in any building constructed by Lessor for any purpose,
including, but not limited to, any kind of broadcasting or communication,
simultaneous transmissions on AM, FM, SSB, VBIF, UHF, and/or microwave
frequencies, and all rental revenues received therefrom shall belong
exclusively to Lessor. Prior to permitting the fastening of a material amount
of additional equipment, Lessor shall cause a structural analysis of the Towers
to be conducted by a reputable mechanical consultant chosen by Lessor in order
to ensure that any such additions conform to recognized engineering standards.
(c) Except as expressly provided for herein,
Lessor shall have no liability for any action or omission taken in exercise of
its rights hereunder upon reasonable reliance on recommendation of its
engineering personnel.
(d) Subject to the terms of this Lease, Lessor
also reserves the right to erect one (1) or more additional towers on the Tower
Site.
4. TERM.
4.01 TERM. This Lease shall have a term of twenty (20)
years from the Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 RENTAL. Lessee shall pay rent for each consecutive
twelve-month period beginning on the Commencement Date (each a "Lease Year")
during the term of this Lease. Such rental payment shall be payable in equal
and successive monthly installments in advance beginning with the Commencement
Date and continuing thereafter on the first day of each month during the term
of this Lease, such rental payments to be made to the following schedule:
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32
Lease Rent Per
Year Lease Year Monthly Rent
----------------------------------------
1 $30,542.76 $2,545.23
----------------------------------------
2 $30,542.76 $2,545.23
----------------------------------------
3 $30,542.76 $2,545.23
----------------------------------------
4 $30,542.76 $2,545.23
----------------------------------------
5 $30,542.76 $2,545.23
----------------------------------------
6 $30,542.76 $2,545.23
----------------------------------------
7 $30,542.76 $2,545.23
----------------------------------------
8 $30,542.76 $2,545.23
----------------------------------------
9 $30,542.76 $2,545.23
----------------------------------------
10 $30,542.76 $2,545.23
----------------------------------------
11 $30,542.76 $2,545.23
----------------------------------------
12 $30,542.76 $2,545.23
----------------------------------------
13 $30,542.76 $2,545.23
----------------------------------------
14 $30,542.76 $2,545.23
----------------------------------------
15 $30,542.76 $2,545.23
----------------------------------------
16 $30,542.76 $2,545.23
----------------------------------------
17 $30,542.76 $2,545.23
----------------------------------------
18 $30,542.76 $2,545.23
----------------------------------------
19 $30,542.76 $2,545.23
----------------------------------------
20 $30,542.76 $2,545.23
----------------------------------------
5.02 PAYMENT OF RENTALS. Rentals to be paid hereunder
shall be paid monthly in lawful money of the United States of America and shall
be paid in advance on the first day of each month during the term of this Lease
by crediting the payment owed to Lessee by Lessor under that certain Promissory
Note made by Lessor in favor of Lessee dated _______, 2000, on the first day of
each month during the term of this Lease. In the event of prepayment of the
Promissory Note by Lessor or other action resulting in amounts equal to any
monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may in
writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
5.03 ELECTRICITY AND OTHER UTILITIES. In addition to the
payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its
own telephone lines and service, electrical service (including electrical
service to the Towers used by Lessee as measured by a separate electrical meter
at Lessee's expense). Lessor shall pay for the electrical service to the Towers
for the Towers lighting.
6. AUTHORITY.
6.01 QUIET ENJOYMENT. Lessor represents and warrants that
it has the full power and authority to enter into this Lease, and covenants and
agrees that Lessee, upon paying the rents described herein and observing and
keeping the covenants, agreements, and
4
33
stipulations of this Lease on Lessee's part to be observed and kept, shall
lawfully, peaceably, and quietly hold, occupy, and enjoy the Leased Premises,
and all other rights and privileges granted herein, without hindrance,
eviction, or molestation by Lessor or any party claiming by or through Lessor.
6.02 LESSEE'S APPROVAL. Lessee represents and warrants
that it has the full power and authority to enter into and perform this Lease.
Any and all necessary corporate resolutions, encumbrance certificates, etc.,
shall be supplied by Lessee upon the request of Lessor.
7. PERMITS.
7.01 PERMITS. Lessor shall obtain all necessary licenses
or permits in connection with the Towers and Building Transmitter except that
Lessee shall obtain, at its own expense, any and all necessary licenses or
permits from such governmental authorities as shall have jurisdiction in
connection with the (b) the operations, installation, repair, alteration, or
replacement of Lessee's equipment (including, without limitation, Lessee's
antenna and transmission and/or receiving equipment); or (c) with any of
Lessee's activities thereon or contemplated by this Lease. At Lessor's request,
Lessee shall furnish Lessor with copies of same, and shall abide by the terms
and provisions of such licenses and permits.
8. MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
(a) Lessee, at its own cost and expense, shall
maintain and repair Lessee's Property, including specifically its antenna,
related equipment, transmission lines, transmitters, and other equipment.
Lessor shall perform the same tasks with respect to the Towers and Transmitter
Building. All such maintenance shall be conducted by the parties in accordance
with good engineering standards and in conformity with the requirements of the
FCC or any other body having jurisdiction over the Lessee and its property,
including, without limitation, any rules, regulations, or guidelines of the FCC
implementing the National Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of Lessor and Lessee shall
take all reasonable precautions to avoid interference or hindrance to and with
the operations of the other party hereto. In this regard, each party hereto
agrees to eliminate, without cost to the other party hereto, any interference
or hindrance to such other party's operation. Maintenance and repair of
Lessee's Property shall be performed only by a reputable contractor and in
accordance with the provisions of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect
Lessee's Property during normal business hours upon reasonable notice to
Lessee, except that, in the event of an emergency, as determined by Lessor,
Lessor may enter at any time, giving notice of such emergency to Lessee as soon
as is practical. In the event that Lessor reasonably determines that Lessee has
not maintained Lessee's Property and equipment in good order and repair
according to industry standards, and that such repairs are necessary for the
safety of the Towers, the Building, and the Tower Site, or the prevention of
interference with Lessor or any other user of the Towers
5
34
or any other broadcaster, Lessor may, at its option, make such emergency
repairs to the Leased Premises as it deems reasonably necessary, and any amount
expended by Lessor therefor shall be reimbursed to it by Lessee immediately
upon presentation of a statement and shall be deemed additional rent. Lessor
shall not be liable for inconvenience, disturbance, loss of business, or other
damage to Lessee by reason of repairing any of Lessee's Property which Lessee
has failed to properly maintain.
(c) With respect to the non-emergency repairs
which Lessor, in its reasonable discretion, determines that Lessee should make
to maintain Lessee's Property and equipment in good order, and that such
repairs are necessary for the safety of the Towers, the Transmitter Building
and the Tower Site, or the prevention of interference with Lessor, in violation
of the terms of this Agreement, Lessor shall so notify Lessee in writing,
specifying the maintenance and repairs required to be performed by Lessee. In
the event that, within ten (10) business days following such written notice (or
such longer period as may be reasonably necessary taking into account all facts
and circumstances), Lessee shall not have performed such maintenance and
repairs, Lessor may, at its sole option, make such repairs as it deems
reasonably necessary, and any amount expended by Lessor therefor shall be
deemed additional rent. Lessor shall not be liable for inconvenience,
disturbance, loss of business, or other damage to Lessee by reason of repairing
the property and equipment of Lessee which Lessee has failed to properly
maintain.
(d) No work (including electrical work), except
for emergency repairs that Lessee shall perform to return to, or maintain the
station on air in the event of a failure, will be performed by the Lessee in
connection with the installation, alteration, maintenance, repair, or removal
of any of Lessee's transmission lines, antenna, and other equipment on the
Towers unless the Lessee submits to Lessor a copy of the proposed contract and
also detailed plans and specifications of the work to be done, and both the
contract and the plans and specifications have been approved in writing by
Lessor not to be unreasonably withheld, delayed or conditioned. Lessee, upon
demand therefor by Lessor, agrees to pay Lessor as additional rent all amounts
reasonably expended by Lessor in connection with review of any such contract,
plans, and specifications.
(e) With respect to any work to be performed by
or on behalf of Lessee in connection with the installation, alteration,
maintenance, repair, or removal of any equipment on the Towers (including any
ascension of the Towers), in the Transmitter Building, or in or about the Tower
Site, Lessee may only employ a contractor who has been approved in writing and
in advance by Lessor. Lessor agrees that it will not unreasonably withhold its
approval of any contractor who has the requisite experience and industry
standard insurance coverage and who will, at the sole option of Lessor, provide
a bond to cover any work which it has been retained to perform. Lessor agrees
to consult on call in any emergency situation and immediately give its approval
or disapproval.
(f) All work by or on behalf of the Lessee or
Lessor shall be carried out (i) in a good and workmanlike manner; (ii) in
accordance with established engineering standards and public ordinances, rules,
and regulations applicable to such work, including, without limitation, any
rules, regulations, or guidelines of the FCC implementing the
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National Environmental Policy Act of 1969, pertaining to electromagnetic or
radio frequency radiation; (iii) in accordance with plans and specifications,
including mechanical and electrical drawings, which have been submitted to and
approved in writing and in advance by Lessor; and (iv) in accordance with
Lessor's security procedures with respect to protection of the Tower Site.
(g) Notwithstanding the receipt of the
approvals by Lessor as required in this paragraph, Lessee shall not be relieved
of its responsibilities and liabilities for interference or otherwise as herein
provided, nor shall said approval be deemed a waiver of any other rights of
Lessor under this Lease.
(h) In the event that any notice of lien or
lien shall be filed against any part of the Tower Site for work claimed to have
been done or materials claimed to have been furnished to Lessee, the same shall
be dismissed, withdrawn, discharged or bonded (to Lessor's reasonable
satisfaction) by Lessee within thirty (30) days thereafter at Lessee's expense;
and if Lessee shall fail to take such action as shall cause such lien to be
discharged within thirty (30) days, Lessor may, at its option, discharge the
same by deposit or by bonding proceedings. Lessor may require the lienor to
prosecute the appropriate action to enforce the lienor's claim. In such case,
Lessor shall give immediate notice to Lessee of such pending action or
proceeding so that Lessee may have an opportunity to legally contest or defend
the action or proceeding. If, after such notice to Lessee, a judgment is
recovered on the claim, Lessor, at its sole option, may pay the judgment. Any
reasonable amount paid or expense incurred or sum of money paid by Lessor
(including reasonable attorney's fees) by reason of the failure of Lessee to
comply with the foregoing provisions of this paragraph, or in defending any
such action, shall be paid to Lessor by Lessee, and shall be treated as
additional rent hereunder.
8.02 AT EXPIRATION OR TERMINATION. At the expiration or
termination of this Lease, Lessee shall promptly surrender possession of the
Leased Premises to Lessor in as good a condition as the same were received at
the commencement of the term, reasonable wear and tear and damage by fire or
other casualty beyond Lessee's reasonable control excepted.
9. USE AND MAINTENANCE OF COMMON PREMISES.
9.01 USE OF COMMON PREMISES. Lessee, at its own risk,
shall have the right to use in common with Lessor and its licensees, invitees,
and other tenants, and in connection with Lessee's permissible activities and
operations (a) any access road from any public highway to the Tower Site or to
any building on the Tower Site; (b) any parking lot on the Tower Site; and (c)
all common areas in the building (such items (a), (b) and (c) called
collectively herein the "Common Premises").
9.02 MAINTENANCE OF COMMON PREMISES.
(a) Lessor shall maintain the Common Premises
and any fence around the Towers in good repair. Lessee shall comply with any
security policies reasonably established from time to time by Lessor.
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(b) Lessor assumes the obligation and
responsibility for complying with the requirements of the FCC regarding
obstruction, marking and lighting of the Towers. Lessor shall maintain the
Towers and support systems in good repair and in good operating condition in
accordance with the requirements of governmental authorities.
(c) In the event that Lessor determines that
repairs, alterations, or improvements are necessary or desirable to the Towers
or any building or structure constructed by Lessor on the Tower Site, any
common areas, or the leased spaces of other tenants, Lessor may, upon
reasonable notice and for the shortest practical period of time (except for
emergency situations), close entrance doors, common areas, drive-ways,
rights-of-way, service areas, parking areas, or any other facilities at its
discretion without being liable to Lessee; provided that if any of the above
would restrict Lessee's ability to broadcast, Lessor shall use reasonable
efforts to restrict any closure or interruption pursuant to this Section 9.02
to the hours of 1:00 a.m. to 5:00 a.m.. The closing of entrances, doors, common
areas, parking areas, or other facilities for the making of the repairs,
alterations, or improvements described herein shall, under no circumstances,
constitute an eviction of the Lessee or be grounds for termination of this
Lease or the withholding of any rental payments or other payments or
performances required to be paid or made by Lessee under the terms hereof,
provided, Lessor shall use reasonable efforts to ensure that any action taken
in accordance with this paragraph shall not adversely affect the rights of
Lessee hereunder. Under no such circumstances shall Lessee be entitled to
terminate this Lease nor shall it be entitled to compensation for any loss or
damage it may sustain (including loss of use, loss of advertising/sponsorship
revenues, and consequential damages) by reason of such changes or alterations.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own
expense, to make such changes and alterations in the Lessee's Property situated
on the Towers, subject to Paragraph 8.01 and Paragraph 11 hereof, as its
operations may require, including the renovation, replacement, or removal of
its antenna; provided, however, that such changes or alterations conform with
recognized engineering standards and, if necessary, have been approved by the
FCC and any other authority having jurisdiction over Lessee; and provided
further, that plans and specifications are first submitted to and approved in
writing by Lessor. Lessee shall make no changes in the equipment or equipment
position without such approval, and Lessor shall not unreasonably fail to give
such approval within ten (10) business days.
(b) This Lease is based upon carefully computed
tower loading capacity. If any change proposed by Lessee in the type, location,
or positioning of Lessee's Property should, in Lessor's judgment, require a
computer or other type of feasibility study to determine the loading capacity
of the Towers, such study shall be performed by an engineer chosen by Lessor,
and approved by Lessee (such approval not to be unreasonably withheld, delayed
or conditioned) whose decision shall be final and binding upon both parties.
The cost of such study or any other costs reasonably incurred by Lessor in
determining the feasibility of any
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proposed change or alteration in the type, location, or positioning of Lessee's
Property shall be borne entirely by Lessee.
11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation on the Leased Premises
or on the Towers after the date hereof, notification of the particulars of such
proposed installation shall be submitted to Lessor hereto and any other lessees
or users of Tower space whose names and addresses are supplied to Lessee by
Lessor in writing, and the Lessor and such other users will be requested to
advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days
after receipt of such notification, whether they have any reasonable objections
thereto on the grounds that objectionable interference may result; provided,
this Section 11.01 shall not apply to any currently installed Lessee's Property
or its replacement, maintenance or repair. If the Lessor or any other user
shall reasonably object within this period to such plans and Lessee is
unwilling to alter its plans to meet the objections, the dispute shall be
submitted to an independent professional engineer chosen by Lessor, and such
engineers decision shall be final and binding upon all parties. The cost of any
such studies shall be borne by Lessee.
11.02 INTERFERENCE WITH LESSOR, LESSEE, OR OTHERS.
Notwithstanding the provisions of Paragraph 11.01, should any change, after the
date hereof, in the facilities or mode of operation of Lessee or Lessee's
failure to comply with the Maintenance Standards, as defined in Paragraph
11.04, cause any objectionable electrical or physical interference (including
interference from any other structure erected on the Tower Site) to the
television and/or radio broadcasting and/or receiving operations of any other
lessee, then, promptly after written notification of such interference, the
Lessee, at its sole expense, will take such steps as may be reasonably required
to correct such interference, including, but not limited to, changing
frequency, ceasing transmission, reducing power, and/or the installation of any
filters or other equipment, provided that, if such interference is caused,
after the date hereof, by the failure of the Lessor or any other lessee
suffering the interference to comply with the Maintenance Standards, as defined
in Paragraph 11.04, then Lessor shall, or shall cause the other lessee
suffering the interference, at its sole expense, to comply with such
Maintenance Standards. Any dispute as to the cause of interference, or the
steps reasonably required to correct it, arising under this Paragraph 11.02,
shall be submitted to an independent professional engineer chosen by Lessor,
and such engineer's decision shall be final and binding upon the parties. If
such interference is found to be caused by such changed facilities or
operation, the fees and charges of the engineer to whom the dispute is referred
shall be borne by the party whose changed facilities or mode of operations gave
rise to the claimed interference. If such interference is found not to be
caused by such changed facilities or operations, the fees and charges of the
engineer to whom the dispute is referred shall be borne by the objecting party.
All other leases and/or agreements to lease space at the Tower Site shall
contain this language.
11.03 INTERFERENCE BY OTHER USER. Any subsequent agreement
under which Lessor allows any other person to occupy any portion of the Towers,
Tower Site or any building shall provide that, should the installation,
operation, or maintenance of the equipment or
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the activities of such other person cause any objectionable interference with
the operations of Lessor or Lessee, then, promptly after written notification
of such, such other tenant or user, at its sole expense, will take such steps
as may be reasonably necessary to correct such interference, including, but not
limited to, changing frequency, ceasing transmission, reducing power, and/or
the installation of any filter or other equipment, provided that if such
interference is caused by the failure of any other lessee to comply with the
Maintenance Standards, as defined in Paragraph 11.04, such other lessee will,
at its sole expense, comply with such Maintenance Standards. To the best of its
ability, Lessor shall not permit any operations by other tenants, the effect of
which would be to prohibit Lessee from operating in the manner contemplated
herein, without the prior written consent of Lessee. Lessor shall have no
liability for any action or omission taken upon reasonable reliance on the
recommendation of qualified engineering personnel. Lessor agrees that it will
take commercially reasonable efforts to ensure that the installation, operation
or maintenance of its equipment which is installed after the commencement date
of this Lease on, in or around the Towers, Tower Site or the Transmitter
Building shall not cause any objectionable interference with the operations of
Lessee. Immediately upon notification of such interference by Lessee, Lessor
shall at its sole expense take such steps as may be reasonably necessary to
correct such interference, including, but not limited to, changing frequency,
ceasing transmission, reducing power, and/or the installation of any filter or
other equipment.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the
purposes of this Lease, compliance with "Maintenance Standards" shall mean that
a tenant or user of the Towers shall (a) maintain and operate its equipment in
accordance with the requirements, rules, regulations, and guidelines of the
FCC, and the standards of manufacturers of the equipment; and (b) maintain and
operate its equipment in accordance with good engineering practice.
12. UTILITIES.
12.01 UTILITIES. Subject to the required approvals and
cooperation of any governmental authority or public utilities, Lessee shall
arrange and be responsible for the installation and provision of electrical and
telephone lines serving Lessee's Property at any building on the Tower Site
owned by Lessor. Lessee shall be responsible for procurement of and payment for
all telephone services as described in Paragraph 5.03 and used by Lessee.
13. TAXES.
13.01 PAYMENT OF TAXES. Lessee shall pay all real estate
taxes, assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated
with other borrowers under Credit Agreement per 1.5D of First Amendment to
Credit Agreement] Lessee shall pay all personal property or other taxes
assessed or imposed on Lessee's Property, and shall cooperate with Lessor to
ensure that such property is properly separated from that of Lessor or other
tenants for assessment purposes.
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14. INSURANCE.
14.01 PUBLIC LIABILITY. Lessee shall procure and maintain
comprehensive public liability insurance, naming Lessor as an additional
insured as its interests shall appear, covering all of the Lessee's operations
and activities on the Leased Premises, including but not limited to, the
operations of contractors and subcontractors and the operation of vehicles and
equipment (including the Towers elevator), with limits of liability for the
term of this Lease of not less than Five Million Dollars ($5,000,000.00) in the
aggregate for personal injury or death in any occurrence and not less than Five
Million Dollars ($5,000,000.00) to cover property damage, with a liability
umbrella of not less than One Million Dollars ($1,000,000.00). Certificates
evidencing such insurance shall be furnished to Lessor upon its request. The
amounts specified hereunder shall be revised every five (5) years to such
amounts as Lessor may reasonably require upon the advice of its insurance
consultants. [Foregoing obligation is subject to $200,000 12-month limit when
aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement].
14.02 CONTRACTOR LIABILITY. Lessee shall also cause the
contractors erecting, installing, or maintaining Lessee's Property or
performing any other work for Lessee on the Tower Site to procure reasonable
public liability insurance acceptable to Lessor and naming the Lessee and
Lessor as named insureds. Certificates evidencing such insurance shall be
furnished to Lessor in advance of any work being performed.
14.03 INSURANCE ON THE TOWERS AND TRANSMITTER Building.
Lessee shall procure and maintain physical damage insurance on the Towers and
any building on the Tower Site used or leased by Lessee pursuant to this Lease
in an amount sufficient to repair or replace the Towers and any such building
with such coverage to be on an "All Risks" basis, including, without
limitation, coverage for the perils of fire, lightning, windstorm, hall, flood,
earthquake, collapse, explosion, aircraft and vehicle damage, vandalism, and
malicious mischief. [Foregoing obligation is subject to $200,000 12-month limit
when aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement]. Lessee shall be solely responsible for its
insurance on Lessee's Property, together with business interruption insurance.
14.04 TOWERS AND/OR BUILDING DAMAGE. In the event that the
Towers or the Transmitter Building are destroyed or damaged by fire, lightning,
windstorm, flood, earthquake, explosion, collapse, aircraft, or other vehicle
damage or other casualty covered by insurance, Lessor shall promptly
reconstruct or repair the Towers and/or the Transmitter Building to such good
condition as existed before the destruction or damage, and give possession to
Lessee of substantially the same space leased hereunder. Lessee shall promptly
pay over to Lessor any insurance proceeds it receives from insurance policies
Lessee is required to procure under Section 14.03 hereof for the purpose of use
by Lessor to fund reconstruction of the Towers and/or Transmitter Buildings as
required of Lessor under this Section 14.04. If the Towers or the Transmitter
Building are in need of such repair or is so damaged by fire, lightning,
windstorm, flood, earthquake, explosion, aircraft or other vehicle damage,
collapse, or other casualty that reconstruction or repair cannot reasonably be
undertaken without dismantling Lessee's antenna, then upon written notice to
Lessee, Lessor may remove any such antenna and interrupt the signal
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activity of Lessee, but will use its best efforts to have the antenna replaced
as soon as reasonably possible. Lessor agrees to provide Lessee an alternative
tower or transmitter building if available, during such reconstruction/repair
period. If such towers or space in another transmitter building on the Tower
Site is 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 and/or
Transmitter Building or (b) replace the Towers and/or Transmitter Building
within one (1) year if Lessor has provided the notice described in clause (a)
above, of the date of destruction, or repair the same within such shorter time
period after the casualty as may be reasonable, then Lessee, upon thirty (30)
days' written notice to Lessor, may terminate this Lease, provided if Lessor
has provided the notice described in clause (a) above, Lessee must make such
election within one hundred twenty (120) days prior to the expiration of said
repair or replacement period. Lessee agrees that it shall maintain adequate
business interruption insurance at all times during the term of this Lease to
adequately protect it from any interruption of signal activities due to damage
to the Towers (including costs of reinstallation of its equipment and lines),
and Lessor shall have no liability on account of such business interruption or
reinstallation costs due to damage or destruction under this paragraph.
15. EMINENT DOMAIN.
(a) In the event that the Tower Site (or any
portion of the Tower Site necessary for the Towers, Transmitter Building, guy
wires, or other appurtenances necessary to Lessee's broadcasting operations) is
acquired or transferred or condemned pursuant to eminent domain proceedings (or
the threat thereof), the obligation of the parties under this Lease shall be
terminated as of the date of acquisition or transfer. Lessor shall be entitled
to the entire condemnation award. If Lessor determines to build a new tower as
a replacement for any of the Towers and/or the Transmitter Building on the
condemned property, Lessor agrees to lease to Lessee the new towers and/or
transmitter building on terms reasonably equivalent to the terms of this Lease.
(b) In the event that this Lease is terminated
due to eminent domain proceedings, then Lessee shall be relieved of any further
obligations to make any rental payments or performances for any period after
the date of such termination of this Lease; and subject to offset or
withholding by Lessor to cover any unpaid additional rent or other authorized
charges which may be owed through the date of termination, Lessee shall be
entitled to a refund of any advance rental sums which it has paid in proportion
to the period of the Lease through such date of termination.
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16. SUCCESSORS AND ASSIGNMENT.
16.01 SUCCESSORS. All rights and liabilities herein given
to or imposed upon the respective parties hereto shall, to the extent that such
are assignable, extend to and bind the several and respective successors and
assigns of the parties hereto.
16.02 ASSIGNMENT. Lessee shall not assign, sublet, or
transfer this Lease or any interest therein, or permit or allow through any act
or default of itself, or of any other person, any transfer thereof by
operations of law or otherwise without the prior written consent of Lessor
except:
(a) Lessee may assign this Lease to any bona
fide third party purchaser of substantially all the assets comprising of
Lessee's radio station broadcasting from the Tower Site, who shall execute an
assignment and assumption agreement in form reasonably acceptable to Lessor;
and
(b) Lessee may assign or transfer all or a
portion of the assets of Lessee, including this Lease, to any corporation
controlling, controlled by, or under common control with, Lessee.
(c) Any assignment or subletting by Lessee
except as permitted herein shall be void and of no effect. Any permitted
assignment shall not relieve Lessee of any of its liabilities hereunder. A
change in control of Lessee, but not the mortgaging by Lessee of its rights
hereunder, shall constitute an assignment of this Lease. Lessor agrees to enter
into documentation reasonably requested by any lender to Lessee in connection
with Lessee's mortgaging of its rights hereunder.
(d) Lessor may assign or transfer this Lease
without the consent of Lessee, but shall notify Lessee following any transfer
or assignment.
17. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In
the event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not
be deemed fixtures) on the Leased Premises within thirty (30) days of such
termination. Such removal shall be conducted in accordance with Paragraph 8.01
hereof Lessee shall promptly repair any and all damage caused by such removal.
Any of Lessee's Property remaining on the Leased Premises after the expiration
of the thirty (30) day period shall be deemed to be the property of Lessor,
which Lessor may have removed at Lessee's expense.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(a) If Lessee shall make default in making any
payment herein provided for and any such default shall continue for a period of
ten (10) business days after
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written notice to Lessee, or if Lessee shall make default in the performance of
any obligation of Lessee herein (other than as to payment of money) and any
such default shall continue for a period of thirty (30) days after written
notice to Lessee, or if Lessee shall file a voluntary petition in bankruptcy,
or if Lessee shall file any petition or institute any proceedings under any
Insolvency or Bankruptcy Act or any amendment thereto hereafter made, seeking
to effect its reorganization or a composition with its creditors, or if, in any
proceedings based on the insolvency of Lessee or relating to bankruptcy
proceedings, a receiver or trustee shall be appointed for Lessee or the Leased
Premises, or if any proceedings shall be commenced for the reorganization of
Lessee (which, in the case of involuntary proceedings, are not dismissed or
stayed within 30 days of the commencement thereof), or if the leasehold estate
created hereby shall be taken on execution or by any process of law, or if
Lessee shall admit in writing its inability to pay its obligations generally as
they become due, then Lessor may, at its option, terminate this Lease without
notice, and declare all amounts due or to become due hereunder immediately due
and payable, and Lessor's agents and servants may immediately, or any time
thereafter, reenter the Leased Premises by reasonably necessary force, summary
proceedings, or otherwise, and remove all persons and properly therein, without
being liable to indictment, prosecution, or damage therefor, and Lessee hereby
expressly waives the service of any notice in writing of intention to reenter
said Leased Premises. Lessor may, in addition to any other remedy provided by
law or permitted herein, at its option, relet the Leased Premises (or any part
thereof) on behalf of Lessee, applying any monies collected first to the
payment of expenses of resuming or obtaining possession, and, second, to the
payment of the costs of placing the premises in rentable condition, including
any leasing commission, and, third, to the payment of rent due hereunder, and
any other damages due to the Lessor. Any surplus remaining thereafter shall be
paid to Lessee, and Lessee shall remain liable for any deficiency in rental,
the amount of which deficiency shall be paid upon demand therefor to Lessor.
(b) Should Lessor re-enter and terminate
according to the provisions of this subparagraph, Lessor may remove and store
the Lessee's Property at the expense and for the account of Lessee.
Alternatively, Lessor may sell, or cause to be sold, Lessee's Property at
public sale to the highest bidder for cash, and remove from the proceeds of
such sale any rent or other payment then due Lessor under this Lease. Any
disposition of the Lessee's Property pursuant thereto shall be subject to the
rights of any lender to Lessee holding a mortgage on Lessee's Property and
shall be made in a manner that is commercially reasonable within the meaning of
the Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania at
the time of such disposition.
19. INDEMNIFICATION.
(a) Each party warrants and represents that it
has the authority to enter into this Lease and to grant the rights it grants
hereunder, and that performance of its obligations pursuant to this Lease will
not violate the rights of any third party whatsoever. Lessee agrees to
indemnify and defend Lessor against any claim for damages, losses, liabilities,
costs, or expenses, including reasonable attorney's fees, arising (a) out of
any breach by Lessee of its warranties, representations, or covenants under
this Lease; (b) out of the use, management, or occupancy of the Leased Premises
by Lessee, its agents, or invitees; (c) out of any omissions, negligence or
willful misconduct of Lessee, its agents, servants, employees, licensees, or
invitees;
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(d) out of failure of Lessee to comply with any laws, statutes, ordinances, or
regulations; (e) out of Lessee's failure to maintain equipment in proper
working order; and (f) out of Lessee's failure to comply with any of its other
obligations under the terms of this Lease.
(b) Lessor agrees to indemnify and defend
Lessee against any claim for damages, losses, liabilities, costs, or expenses,
including reasonable attorney's fees, arising (a) out of any breach by Lessor
of its warranties, representations, or covenants under this Lease; (b) out of
the use, management, or occupancy of the Leased Premises by Lessor, its agents,
or invitees; (c) out of any omissions, negligence or willful misconduct of
Lessor, its agents, servants, employees, licensees, or invitees; (d) out of
failure of Lessor to comply with any laws, statutes, ordinances, or
regulations; (e) out of Lessor's failure to maintain equipment in proper
working order; and (f) out of Lessor's failure to comply with any of its other
obligations under the terms of this Lease.
(c) Any party seeking indemnification hereunder
("Indemnified Party") shall provide the other party ("Indemnifying Party")
reasonably prompt notice of known claims giving rise to any claim for
indemnity, and the Indemnifying Party shall have the right and opportunity to
undertake the legal defense of such claims. The Indemnified Party and its
counsel may nevertheless participate in (but not control) such proceedings,
negotiations, or defense at its own expense. In all such cases, the Indemnified
Party will give all reasonable assistance to the Indemnifying Party, including
making the Indemnified Party's employees and documents available as reasonably
requested without charge.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 ESTOPPEL CERTIFICATE. Within ten (10) days after
either party's request, the other party shall deliver, executed in recordable
form, a declaration to any person designated by the requesting party (a)
ratifying this Lease; (b) stating the commencement and termination dates; and
(c) certifying (i) that this Lease is in full force and effect, and has not
been assigned, modified, supplemented, or amended (except by such writings as
shall be stated); (ii) that all conditions under this Lease to be performed
have been satisfied (stating exceptions, if any); (iii) that no defenses or
offsets against the enforcement of this Lease by the requesting party exist (or
stating those claimed); (iv) advance rent, if any, paid by Lessee; (v) the date
to which rent has been paid; (vi) the amount of security deposited with Lessor
(if hereafter applicable for any reason); and (vii) such other information as
the requesting party reasonably requires. Persons receiving such statements
shall be entitled to rely upon them.
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20.02 ATTORNMENT. Lessee shall, in the event of a sale or
assignment of Lessor's interest in any of the Leased Premises, or, if any of
the Leased Premises or any building thereon comes into the hands of any Trustee
under a Deed of Trust or a mortgagee or any other person, whether because of a
foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or
otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person,
and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's
request any attornment agreement reasonably required by any mortgagee, Trustee,
or other such person to be executed containing such provisions as such
mortgagee, Trustee, or other person reasonably requires, provided, however,
that such attornment shall not modify the terms of this Lease.
20.03 FAILURE TO EXECUTE INSTRUMENTS. Either party's
failure, without good and reasonable cause, to execute instruments or
certificates provided for in this Paragraph 20, within fifteen (15) days after
the receipt by such party of a written request, shall be a default under his
Lease.
21. MISCELLANEOUS.
21.01 RELATIONSHIP OF PARTIES. Nothing contained herein
and no acts of the parties herein shall be deemed or construed as creating any
relationship between the parties hereto other than the relationship of Lessor
and Lessee or Landlord and Tenant.
21.02 GOVERNING LAW. This Lease shall be governed and
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania.
21.03 CAPTIONS. The captions contained in this Lease are
included solely for convenience and shall in no event affect or be used in
connection with the interpretation of this Lease.
21.04 AMENDMENTS. This Lease only may be amended or
modified as may be agreed upon by written instrument executed by the parties
hereto.
21.05 INTEREST AND ATTORNEY'S FEES. All sums becoming due
or payable under this Lease, including all money expended pursuant to the
provisions hereof or on account of any default in the performance and
observance of any agreements or covenants herein, shall bear interest at the
rate of eight and one-half percent (8.5%) per annum (or at such lesser rate
which is the maximum permitted by applicable law) from thirty (30) days after
the date such sums become due or payable, or, in the event one of the parties
expends money because of a default by the other, from thirty (30) days after
the date the defaulting party received written notice that such money was
expended.
The prevailing party shall be entitled to its reasonable
attorney's fees to collect any payment or to compel any performance ultimately
held to be due under the provisions of this Lease.
21.06 BROKERS AND THIRD PARTIES. Each party represents
that it has not had dealings with any real estate broker or other person who
may claim a commission or finder's fee with respect to this Lease in any
manner. Each party shall hold harmless the other party from
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all damages resulting from any claims that may be asserted against the
Indemnified Party by any broker, finder, or other person with whom the
Indemnifying Party has or purportedly has dealt.
21.07 NOTICES. Notices given pursuant to this Lease shall
be in writing and shall be given by actual delivery or by mailing the same to
the party entitled thereto at the addresses set forth below or at any such
other address as any Party may designate in writing to any other Party pursuant
to the provisions of this paragraph. Notice given by mail shall be sent by
United States mail, certified or registered, return receipt requested or by
nationally recognized courier serviced providing receipt of delivery. Notices
shall be deemed to be received on the date of actual receipt, in the case of
personal delivery, or on the date of mailing, in the case of mailing. Notices
shall be served or mailed to the following addresses, subject to change as
provided above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: 941) 000-0000
Fax:(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax:(000) 000-0000
If to the Lessee: Xxxxxxx Broadcasting of Eastern Pennsylvania
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax:(000) 000-0000
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21.08 WAIVER. It is agreed that the waiving of any of the
covenants of this Lease by either party shall be limited to the particular
instance, and shall not be deemed to waive any other breaches of such covenant
or any provision herein contained.
21.09 ACCORD AND SATISFACTION. No receipt of money by
Lessor after the termination of this Lease or after the service of any notice
or after the commencement of any suit reinstates, continues, or extends the
term of this Lease or affects any such notice or suit.
21.10 LIMITATION OF LIABILITY. Except as otherwise
expressly stated herein, Lessor shall not be liable or responsible to the
Lessee or to anyone claiming under or through the Lessee for any loss or damage
caused by the acts or omissions of any other tenants or any other users of the
Towers, Building, or Tower Site, or for any loss or damage to Lessee's Property
caused by fire, water, bursting pipes, leaking gas, sewage, steam pipes,
drains, ice, or materials falling from the Towers, or the malfunction of any
utility, facility, or installation, or by reason of any other existing
condition or defect in the Leased Premises; nor shall Lessor be liable or
responsible to the Lessee for any injury or damage suffered by the Lessee and
allegedly caused by technical interference with the Lessee's operations, by the
activities of any other tenants or users of the Towers, Building, and Tower
Site, or any other broadcasters. Except for Lessor's own negligent acts,
willful misconduct or for breaches of its obligations under this Agreement,
Lessor shall not be liable to Lessee, or to any other person for property
damage or personal injury, including death. Lessor shall not be liable under
any circumstances for loss of use, loss of sponsorship or advertising revenue,
or any other consequential damages sustained by Lessee.
21.11 PARTIAL INVALIDITY. The invalidity of any provision,
clause, or phrase contained in this Lease shall not serve to render the balance
of this Lease ineffective or void; and the same shall be construed as if such
had not been herein set forth.
21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of
any documentary stamps occasioned by this Lease should it wish to record this
Lease.
21.13 RULES AND REGULATIONS. Lessor may from time to time
issue such rules and regulations in writing which it may consider necessary and
desirable. Lessee agrees to abide by such rules and regulations so long as they
do not unreasonably interfere with Lessee's use and occupancy of the Leased
Premises or conflict with this Lease.
21.14 FORCE MAJEURE. Lessor assumes no responsibility for
any losses or damages to Lessee's Property caused by acts of God, including,
but not limited to, wind, lightning, rain, ice, earthquake, floods, or rising
water, or by aircraft or vehicle damage. Lessor furthermore assumes no
responsibility for losses or damages to Lessee's Property caused by any person
other than employees and agents of Lessor. In the event that Lessor shall be
delayed, hindered in or prevented from the performance of any act required
hereunder by reason of acts of God (including, but not limited to, wind,
lightning, rain, ice, earthquake, flood, or rising water), aircraft or vehicle
damage or other casualty, unforeseen soil conditions, acts of third parties who
are not employees of Lessor, strikes, lock-outs, labor troubles, inability to
procure material, failure of power, governmental actions, laws or regulations,
riots, insurrection, war, or other reasons beyond its control, then the
performance of such act shall be excused for the period of
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delay and the period for performance of any such act shall be extended for a
period equivalent to the period of such delay.
21.15 ENTIRE AGREEMENT. This Lease, together with its
Exhibits, constitutes and sets forth the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersedes all prior
or contemporaneous offers, negotiations, and agreements (whether oral or
written) between the parties (or any of their related entities) concerning the
subject matter of this Lease.
21.16 COUNTERPARTS AND DUPLICATES. This Lease may be
executed in counterparts, which, when combined, shall constitute a single
instrument. The Lease may also be executed in duplicate editions, each of which
shall be effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals, as of the day and year first above written.
ATTEST: ` LESSOR:
XXXXXXX FAMILY TOWERS, INC.
By: (SEAL)
----------------------- ----------------------------
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By: (SEAL)
----------------------- ----------------------------
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A
DESCRIPTION OF TOWERS
WWDB-AM
(1) Four communication towers used in the operation of WWDB-AM situated on that
certain tract of land more particularly described on Exhibit B herein.
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EXHIBIT B
DESCRIPTION OF TOWER SITE
WWDB-AM
That certain tract of land more particularly described as follows:
ALL THAT CERTAIN lot or piece of ground situate in the Township of East
Norriton, County of Xxxxxxxxxx and Commonwealth of Pennsylvania, bounded and
described according to a Sub-division Plan of East Norriton Industrial Park
made by Xxxxxx X. Xxxxxx, Civil Engineer and Surveyor, Norristown,
Pennsylvania, dated 3/9/1967 and last revised 4/14/1967 as follows, to wit:
BEGINNING at a point in the bed of 50 feet wide access and drainage
right-of-way on the Southeasterly side of Foundry Road (60 feet wide) said
point being measured the two following courses and distances from a point of
curve on the Southwesterly side of Germantown Pike (75 feet wide): (1) along
the arc of a circle curving to the left having a radius of 20 feet the arc
distance of 31.42 feet to a point of tangent on the Southeasterly side of
Foundry Road and (2) South 22 degrees 12 minutes 15 seconds West along the
southwesterly side of Foundry Road 295.00 feet to the point of beginning;
thence extending from said point of beginning through the bed of said 50 feet
wide access and drainage right-of-way along the rear lines of lots Nos. 1, 2,
3, 4 and partly along rear line of Xxx Xx. 0, Xxxxx 00 degrees 47 minutes 45
seconds East, crossing over the bed of a 30 feet wide drainage easement, and
crossing over the bed of an existing creek, 936.77 feet to a point on rear line
of said Lot No. 5 and in the bed of a 50 feet wide access and drainage
right-of-way; thence extending along the same along the arc of a circle curving
to the left having a radius of 275 feet the arc distance of 110.03 feet to a
point on line of Lot No. 7 and on the Easterly side of a 20 feet wide drainage
easement; thence extending along the same South 22 degrees 12 minutes 15
seconds West 185.88 feet to an iron pin a corner of lands now or late of
Xxxxxxxxx Xxxxxx; thence extending along the same South 45 degrees 42 minutes
15 seconds West, crossing over the bed of the aforesaid 30 feet wide drainage
easement, 421.52 feet to an iron pin a corner of lands now or late of Hownet
Corporation; thence extending along the same the next two following courses and
distances, viz: (1) North 48 degrees 50 minutes 07 seconds East 67.95 feet to a
point of curve; and (2) along the arc of a circle curving to the left having a
radius of 535 feet the arc distance of 248.67 feet to the first mentioned point
and place of beginning.
BEING Lot No. 8 on the above mentioned Plan.
BEING Parcel No. 33-00-02752-00-5.
BEING the same premises which Mid-Central Associates, Inc., a Pennsylvania
corporation, by Indenture bearing date the 12th day of September, A.D., 1967,
recorded in the Office for the Recording of Deeds, in and for the County of
Xxxxxxxxxx, at Norristown, Pennsylvania, in Deed Book 3484 page 806, granted
and conveyed unto WTEL, Inc., a Delaware corporation, its successors and
assigns, in fee and being on the same premises acquired by Grantor by deed
dated
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October 31, 1986, recorded in Deed Book 4818 page 1634 in the Office of the
Recorder of Deeds, County of Xxxxxxxxxx, Pennsylvania.
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EXHIBIT C
[DIAGRAM OR DESCRIPTION OF LESSEE'S
SPACE IN THE TRANSMITTER XXXXXXXX]
00
