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EXHIBIT 10.19
AGREEMENT OF SALE (OT/LL)
This Agreement of Sale (the "Agreement") is made this ___ day of February,
2000, between Xxxxxxx Xxxx Acquisition Partnership, a Delaware general
partnership (the "Seller") and Xxxxxxx Family Towers, Inc., a Delaware
corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns a communications tower used in the operation of radio
broadcast station WQAM-AM (the "Tower"), such Tower situated on a certain tract
of land which Seller leases from a third party (such tract of land called herein
the "Tower Site"), such Tower and the Tower Site described on Exhibit A attached
hereto);
WHEREAS, Seller desires to sell and Buyer desires to purchase the Tower and
certain 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) The Tower;
(b) The ground lease for the Tower Site (the "Ground Lease"), such
Ground Lease attached as Exhibit B1 hereto and incorporated herein;
(c) That certain Access Agreement, dated August 3, 1998, by and
between The Miami Herald Publishing Company, a division of Xxxxxx-Xxxxxx, Inc.
("Miami Herald"), and Seller (the "Access Agreement"), allowing Seller certain
rights of access to and through neighboring property owned by Miami Herald, such
Access Agreement attached as Exhibit B2 hereto and incorporated herein; and
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2. Assumption of Liabilities.
(a) Upon the terms and subject to the conditions contained herein,
Buyer shall assume and become responsible for any and all liabilities and
obligations arising out of, or relating to events occurring after 12:01 am
Eastern Standard Time on the Closing Date (the "Adjustment Time"), under the
Ground Lease, and with respect to the ownership of the Tower, and the operation
of the business relating to the Assets (collectively, the "Assumed
Liabilities").
(b) Subject to the provisions of Section 13, hereof, it is understood
and agreed that all liabilities to third parties relating to the Assets that
arise out of any act, event, or transaction of Seller or the ownership of the
Assets or the operator of the business relating to the Assets prior to the
Closing Date (the "Retained Liabilities") shall remain the responsibility of
Seller. Buyer shall not be required to defend any suit or claim arising out of
any Retained Liabilities, and Seller shall and hereby agrees to satisfy in due
course all such Retained Liabilities, and subject to the provisions of Section
13 hereof Seller shall protect and forever hold Buyer harmless from all claims
with respect to such Retained Liabilities. Subject to the provisions of Section
13, hereof, it is understood and agreed that all liabilities relating to the
Assets that arise out of any act, event, or transaction of Buyer following the
Closing Date (the "Assumed Liabilities") shall be the responsibility of Buyer.
Seller shall not be required to defend any suit or claim arising out of any
Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due course
all such Assumed Liabilities, and subject to the provisions of Section 13 hereof
Buyer shall protect and forever hold Seller harmless from all claims with
respect to such Assumed Liabilities.
3. Purchase Price.
(a) The purchase price for the Assets shall be the amount of Four
Hundred Fourteen Thousand Three Hundred Twenty One Dollars ($414,321.00) (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 Site
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).
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(b) As payment of the Purchase Price, Buyer shall deliver to Seller at
Closing an unsecured promissory note of Buyer in the aggregate principal amount
of Four Hundred Fourteen Thousand Three Hundred Twenty One Dollars
($414,321.00), substantially in the form of Exhibit C (the "Purchase Note").
5. Transfer of Assets.
(a) Transfer of ownership of the Tower and assumption of the Assumed
Liabilities (except for the Ground Lease, which shall be transferred according
to Section 5(c) below) pursuant to Section 2 hereof shall be pursuant to the
Assignment, Xxxx of Sale and Assumption Agreement from the Seller to Buyer in
the form of Exhibit D attached hereto and incorporated herein (the "Assignment,
Xxxx of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of all
liens, encumbrances other than Permitted Encumbrances, if any. "Permitted
Encumbrances" shall mean: (i) encumbrances for taxes, assessments, or
governmental charges or levies which are not yet due and payable, or that,
subject to adequate security for payment, are being contested; (ii) existing
building restrictions, ordinances, easements of roads, privileges, or rights of
public service companies or other rights of way, other restrictions or
conditions of record, if any or other encumbrances disclosed in this Agreement
(including the Exhibits attached hereto); (iii) easements, rights of way or
other encumbrances that do not have a material adverse effect on the Assets or
the operation of the business relating to the Assets as currently operated; (iv)
encumbrances imposed by law, such as materialmen's, mechanic's, carrier's,
workmen's, or repairmen's liens or other similar encumbrances attaching in the
ordinary course of business or securing obligations that are not overdue; (v)
encumbrances securing indebtedness, which will be removed prior to or at the
Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed by
Buyer pursuant to Section 2.
(c) Assumption of the Ground Lease pursuant to Section 2 hereof shall
be pursuant to the Ground Lease Assignment and Assumption Agreement in the form
of Exhibit E attached hereto and incorporated herein (the "Ground Lease
Assignment and Assumption Agreement").
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
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portions of books and records Seller may reasonably request solely for the
purposes of verifying such adjustments. The Buyer's Certificate shall be final
and conclusive unless objected to by Seller in writing within ninety (90) days
after delivery. Buyer and Seller shall attempt jointly to reach agreement as to
the amount of the adjustments to be made hereunder within thirty (30) days after
receipt of such written objection, which agreement, if achieved, shall be
binding upon all parties to this Agreement and not subject to dispute or review.
(c) In the event of a disagreement between Buyer and Seller with
respect to the accounting to be made hereunder, the parties agree that a public
accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of
such disagreement. (d) Any amounts due for the adjustments provided for herein
shall be paid within thirty (30) business days after final determination.
7. Expenses.
All costs and expenses incurred by the Parties in this transaction,
including, but not limited to attorneys' fees, shall be paid by the party
incurring them.
8. Closing; Closing Conditions.
(a) Closing of the transactions contemplated by this Agreement (the
"Closing") shall occur at a place and time mutually agreeable to Seller and
Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort
to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned upon
(i) all representations and warranties of Buyer being then true and complete in
all material respects as if made on and as of the Closing Date, except to the
extent that any such representation or warranty is made as of a specified date,
in which case such representation or warranty shall have been true and correct
as of such date, (ii) all consents of third parties required for Buyer to
consummate the transactions contemplated under this Agreement shall have been
obtained, (iii) no order, decree or judgment of any court, agency or other
governmental authority shall have been issued based on or arising out of the
conduct, action, inaction, qualifications or status of Buyer or any of its
affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b) above, and (v) the delivery by Buyer of Buyer's Closing Documents (as
defined in Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned upon
(i) all representations and warranties of Seller being then true and complete in
all material respects 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)
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no order, decree or judgment of any court, agency or other governmental
authority shall have been issued based on or arising out of the conduct, action,
inaction, qualifications or status of Seller or any of its affiliates, which
would render it unlawful as of the Closing Date to effect that transactions
contemplated by this Agreement in accordance with its terms, and (iv) the
delivery by Seller of Seller's Closing Documents as set forth in Section 9
hereof.
9. Closing Deliveries.
(a) At Closing, Seller shall execute and/or deliver to Buyer the
following (collectively "Seller's Closing Documents"):
(i) The Assignment, Xxxx of Sale and Assumption Agreement;
(ii) The Ground Lease Assignment and Assumption Agreement;
(iii) A certificate from an officer of Seller reasonably
acceptable to Buyer confirming the accuracy of the
representations and warranties in Section 10 as of the
Closing Date;
(iv) Authorizing resolutions or minutes from Seller approving
this Agreement and the transactions contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not a
"foreign person" (as defined in Section 1445(f)(3) of the
Code and the regulations issued thereunder);
(vi) A lease agreement, by and between Buyer, as lessor, and
Seller, as lessee, substantially in the form of Exhibit F
(the "Lease Agreement").
(b) At Closing, Buyer shall execute and/or deliver to Seller the
following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this Agreement
and the transactions contemplated herein;
(ii) A certificate from an officer of Buyer reasonably acceptable
to Seller confirming the accuracy of the representations and
warranties in Section 11 as of the Closing Date;
(iii) The Purchase Note executed by a duly authorized officer of
Buyer;
(iv) A lease agreement, by and between Buyer, as lessor, and
Seller, as lessee, substantially in the form of Exhibit F
(the "Lease Agreement"); and
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(v) The Assignment, Xxxx of Sale and Assumption Agreement;
(c) Seller's Closing Documents and Buyer's Closing Documents shall be
collectively called herein the "Closing Documents". Buyer and Seller agree that
such other documents as may be legally necessary or appropriate to carry out the
terms of this Agreement or as reasonably requested by the other party shall be
executed and delivered by the appropriate party at Closing.
10. Representations and Warranties of Seller.
As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Towers, and the Assets
are free and clear of liens, encumbrances, restrictions and security interests
other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and deliver this
Agreement and Seller's Closing Documents, and to perform its obligations
hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed and
delivered, will constitute valid and binding agreements of Seller, enforceable
against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with, or
result in, a breach of the terms of any agreements or instruments to which the
Seller is a party which would result in the creation or imposition of any lien,
charge or encumbrance on, or give to others any interest in or right to, any of
the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all
outstanding obligations for utilities and taxes through the Closing Date, except
for such items as are covered by the proration of items of income and expense as
set forth in Section 6 hereof.
(f) Except for the consent of the lessor under the Ground Lease, 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
Partnership Agreement 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.
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(h) Seller is not a foreign person within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations
issued thereunder.
11. Representations and Warranties of Buyer.
As a material inducement to Seller to enter into this Agreement, Buyer
represents and warrants to Seller as follows:
(a) Buyer has full power and authority to execute and deliver this
Agreement and Buyer's Closing Documents, and to perform its respective
obligations hereunder and thereunder.
(b) This Agreement and Buyer's Closing Documents, when executed and
delivered, will constitute valid and binding agreements of Buyer enforceable
against Buyer, in accordance with their terms.
(c) Assuming all consents and approvals required for Buyer to
consummate the transactions contemplated under this Agreement shall have been
obtained, neither the execution, delivery, and performance of, nor Buyer's
compliance with, the terms and provisions of this Agreement will conflict with
or result in a breach of any of the terms, conditions, or provisions of the
Articles of Incorporation or Bylaws of Buyer or any judgment, order, injunction,
decree, regulation, or ruling of any court or any other governmental authority
to which Buyer is subject or any material agreement or contract to which Buyer
is a party or to which it is subject, or constitute a material default
thereunder.
(d) Buyer acknowledges that the Tower is located on land which is
leased and subject to the Ground Lease. Prior to the expiration of the term of
Buyer acknowledges that it has received copies of such Ground Lease and that
there are no assurances that such Ground Lease will be extended or, if extended,
whether the terms and conditions of any such extension will be the same as the
terms and conditions of the current Ground Lease.
12. Representations and Warranties Survive Closing.
All of the provisions of this Agreement and of the Closing Documents and
all of the representations, warranties, considerations, and agreements contained
herein and in the Closing Documents shall survive Closing and continue in full
force and effect for a period of twelve (12) months from the Closing Date;
provided that if a claim for indemnification is made by either party under
Section 13 hereof within such twelve (12) month period, the provisions of
Section 13 shall survive until the resolution of such claim. No claim may be
brought under this Agreement unless written notice describing in reasonable
detail the nature of the claim is given on or prior to the last day of the
twelve (12) month period following the Closing Date.
13. Indemnification.
(a) Seller shall indemnify, defend, and hold Buyer, its affiliates,
partners, employees, officers, directors, agents, and representatives harmless
from and against
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any and all reasonable losses, costs, expenses, liabilities, penalties, claims,
and other damages including, but not limited to, reasonable attorney's fees and
other costs and expenses, including reasonable costs of investigation,
reasonably incurred and resulting from:
(i) any breach of Seller's representations or warranties, or the
breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Seller of any of its covenants or
agreements contained herein or in any Seller's Closing
Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages resulting from
Sellers' operations or ownership of any Tower prior to the
Closing Date, including any and all liabilities arising
under the Assets which relate to events occurring prior to
the Closing Date.
(b) 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 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,
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provided, however, that the Indemnifying Party's choice of legal counsel must be
acceptable to the Indemnified Party in its reasonable discretion. In the event
the Indemnifying Party elects to defend, the Indemnifying Party shall keep the
Indemnified Party fully informed on a timely basis of the status of the pending
litigation. In the event that the Indemnifying Party elects to defend and is
unsuccessful in such defense, it shall promptly pay to the Indemnified Party any
and all losses, costs, expenses, liabilities, penalties, claims and other
damages as described above, including but not limited to, reasonable attorney's
fees and other costs and expenses associated with the pending litigation being
so defended. In the event the Indemnifying Party elects not to defend and the
Indemnified Party defends, but is unsuccessful, then the Indemnifying Party
shall promptly pay to the Indemnified Party any and all losses, costs, expenses,
liabilities, penalties, claims and other damages, as described above, including,
but not limited to, reasonable attorney's fees and other costs and expenses
incurred, including reasonable costs of investigation. In the event that
Indemnifying Party elects not to defend and the Indemnified Party defends
successfully, then the Indemnifying Party shall promptly pay to the Indemnified
Party any and all costs and expenses incurred, including, but not limited to,
reasonable attorney's fees and other costs and expenses incurred, including
reasonable costs of investigation. The Indemnifying Party shall reimburse the
Indemnified Party upon demand for any payment made by the Indemnified Party at
any time after Closing, based on the final judgement of any court of competent
jurisdiction or pursuant to a bona fide compromise or settlement of claims,
demands or actions in respect to any damages to which the foregoing
indemnification relates.
(d) 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 Fifty Thousand Dollars
($50,000.00) and Seller shall have no other liability or
responsibility for indemnification hereunder.
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(e) Subsequent to the Closing, indemnification under this Section 13
shall be the exclusive remedy of Buyer with respect to any legal, equitable or
other claim for relief based upon this Agreement or arising hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
Buyer's obligation to indemnify Seller shall be subject to all of the following
limitations:
(i) The amount of any Losses incurred by Seller shall be reduced
by (A) the amount Seller recovers (after deducting all
attorneys' fees, expenses and other out-of-pocket costs of
recovery) from any insurer or other party liable for such
Losses, and Seller shall use commercially reasonable efforts
to effect any such recovery and (B) any tax benefit realized
by Buyer or its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for Losses
as to which Seller has given Buyer a Notice of Claim on or
prior to the first anniversary of the Closing Date.
(iii) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Fifty Thousand Dollars
($50,000.00) and Buyer shall have no other liability or
responsibility for Indemnification hereunder.
(g) 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.
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(i) Upon termination of this Agreement, each party shall
thereafter remain liable for breach of this Agreement prior
to such termination and remain liable to pay and perform any
obligation under Section 13.
(ii) If Closing shall not have occurred, Seller's sole remedy at
law or in equity for any breach or default by Buyer
described in Section 14(a)(i)(A) shall be the termination by
Seller of this Agreement by giving of written notice to
Buyer pursuant to Section 14(a)(i)(A).
(c) Termination Notice. Each notice given by a party pursuant to
Section 14(a) to terminate this Agreement shall specify the subsection of
Section 14(a) pursuant to which such notice is given. If at the time a party
gives a termination notice, such party is entitled to give such notice pursuant
to more than one subsection of Section 14(a), the subsection pursuant to which
such notice is given and termination is effected shall be deemed to be the
subsection specified in such notice provided that the party giving such notice
is at such time entitled to terminate this Agreement pursuant to the specified
subsection.
15. Default; Disputes.
If Seller fails to perform under this Agreement, the Buyer may exercise any
right it has against the Seller, including bringing an action for specific
performance. The remedies provided by this Section are in addition to any right
or remedies provided elsewhere in this Agreement or at law or in equity. In the
event a dispute arises between the Parties over the interpretation of this
Agreement, or the performance, alleged non-performance or breach by either Party
hereunder, the Parties hereby agree to seek resolution of such dispute in good
faith through an alternative dispute resolution process mutually agreeable to
the Parties prior to the institution of any legal proceedings related thereto.
16. Liabilities.
Buyer shall not, in connection with the purchase and sale of Assets
contemplating herein, assume any liabilities or obligations of the Seller except
as specifically set forth herein.
17. Third Party Brokerage.
Seller and Buyer hereby represent and warrant to each other that neither
Seller or Buyer has dealt with any broker or finder in connection with the
transaction which is the subject of this Agreement. Each party hereby agrees to
indemnify, save harmless and defend the other from and against all claims,
losses, liabilities and expenses, including reasonable attorney's fees, arising
out of any claim made by any broker, finder or other intermediary who claims to
have dealt with such party in connection with the transaction which is the
subject of this Agreement. The provisions of the paragraph shall survive Closing
hereunder.
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18. Entire Agreement.
This Agreement (which includes the exhibits and schedules attached hereto)
constitutes the entire agreement between the Parties and there are no other
understandings, representations or warranties, oral or written, relating to the
subject matter hereof.
19. Amendment.
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:
If to the Seller: Xxxxxxx Xxxx Acquisition Partnership
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Buyer: Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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21. Construction.
Whenever used in this Agreement the singular shall include the plural, the
plural the singular, and the use of any gender shall be applicable to all
genders.
22. Assignment and Recording.
Seller hereby covenants not to assign or record this Agreement except with
the prior written consent of the Buyer. Buyer may assign this Agreement freely
to any affiliated entity, provided such assignment shall not relieve Buyer of
its obligations hereunder.
23. Binding Effect.
This Agreement and all of its terms and conditions shall extend to and be
binding upon the Parties hereto and upon their respective heirs, executors,
administrators, successors and assigns.
24. Further Assurances.
Seller and Buyer agree to execute and deliver any further documents or
assurances that in law or otherwise are necessary, desirable or proper to
consummate the transactions contemplated by this Agreement and to vest, perfect,
assign or confirm, of record or otherwise, in Buyer title to the Assets.
25. Governing Law.
This Agreement is made and shall be governed by and construed in accordance
with the internal laws of the State of Florida.
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.
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29. Severability.
If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, then such provision shall be
severed from this Agreement and the remainder shall remain in full force and
effect.
[Signature page follows]
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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 XXXX ACQUISITION PARTNERSHIP
By: XXXXXXX XX ACQUISITION CORP.,
its general partner
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 Tower and Tower Site
Exhibit B1 Ground Lease
Exhibit B2 Access Agreement
Exhibit C Form of Purchase Note
Exhibit D Form of Assignment, Xxxx of Sale and
Assumption Agreement
Exhibit E Form of Ground Lease Assignment and
Assumption Agreement
Exhibit F Form of Lease Agreement
17
EXHIBIT A
DESCRIPTION OF TOWER AND TOWER SITE
WQAM-AM
That certain three hundred eighty (380) foot high self-supporting communications
tower, manufactured by LeHigh, situated on a tract of submerged land in Biscayne
Bay, such land more particularly described as follows:
Commence at the northeast corner of Tract "A" of Herald Park, according to the
plat thereof recorded in Plat Book 121 at Page 4 of the Public Records of Dade
County, Florida; thereof run South 02 degrees 12'25" West along the East line of
said Tract "A" and the Dade County Bulkhead line, according to the Plat thereof
recorded in Plat Book 74 at Page 18 of the Public Records of Dade County,
Florida for a distance of 210.83' to the P.O.B. of the hereinafter described
submerged lands; thence continue South 02 degrees 12'25" West along the East
line of said Tract "A" for a distance of 11.17 feet to a point; thence run South
87 degrees 29'05" East for a distance of 189.61 feet to a point; thence run
South 00 degrees 10'42" West for a distance of 22.52 feet to a point; thence run
South 89 degrees 49'18" East for a distance of 65.30 feet to a point; thence run
North 00 degrees 10'42" West for a distance of 65.30 feet to a point; thence run
South 00 degrees 10'42" West for a distance of 31.61 feet to a point; thence run
North 87 degrees 29'05" West for a distance of 189.22 to the point of beginning.
18
EXHIBIT B1
GROUND LEASE
19
EXHIBIT B2
ACCESS AGREEMENT
20
EXHIBIT C
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$414,321.00 February ____, 2000
XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value
received, promises to pay to the order of XXXXXXX XXXX ACQUISITION PARTNERSHIP,
a Delaware general partnership, ("Payee"), the principal amount of FOUR HUNDRED
FOURTEEN THOUSAND THREE HUNDRED TWENTY ONE DOLLARS ($414,321.00), together with
accrued interest thereon, calculated and payable as set forth below in this
Note. The principal and interest on this Note is payable in lawful money of the
United States of America in immediately available funds at such place in the
United States as Payee may from time to time designate in writing to Payor.
This Note is made pursuant to that certain Agreement of Sale (the "Sale
Agreement"), dated February ____, 2000, by and among Payor and Payee.
1. Payment of Principal and Interest.
(a) Calculation and Payment of Interest. Interest on the principal
balance of this Note outstanding from time to time until paid in full shall
accrue at the rate of six and seventy-seven one hundredths percent (6.77%)
compounded annually (the "Rate"), computed on the basis of a 365 or 366-day
year, as appropriate, for the actual number of days elapsed, commencing on the
date hereof.
(b) Payments Prior to Maturity Date. On the first day of each month
Maker shall pay, in advance, Three Thousand One Hundred Thirty Seven Dollars and
Fifty Eight Cents ($3,137.58). 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.
21
(ii) Any prepayment of this Note shall be applied as follows:
first, to payment of accrued interest; and second, to
payment of principal.
2. Events of Default.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this Note when
the same shall become due and payable (whether at maturity or otherwise) and the
continuation of such failure for a period of ninety (90) days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in
an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all
or any substantial portion of its property or assets;
(c) makes a general assignment for the benefit of its creditors; or
(i) 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:
(ii) is for relief against Payor in an involuntary case or
proceeding;
(iii) appoints a Custodian of Payor or for all or substantially
all of its properties; or
(iv) orders the liquidation of Payor; and in each case the order
or decree remains unstayed and in effect for ninety (90)
days.
(d) The following terms used in this Note have the meanings assigned
below:
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
federal, state or foreign law for the relief of debtors or any arrangement,
reorganization, assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of Payor.
2
22
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
"Event of Default" means any of the occurrences specified in Section 2 of
this Note.
If any Event of Default shall have occurred and be continuing, Payee may
proceed to protect and enforce its rights either by suit in equity or by action
at law, or both, whether for specific performance of any provision of this Note
or in aid of the exercise of any power granted to Payee under this Note.
3. Assignment.
The holders of this Note may not assign or otherwise transfer all or any
portion of their rights and obligations under this Note to any other person or
entity, without the prior written consent of the Payor, which consent shall not
be unreasonably withheld.
4. Miscellaneous.
(a) Section Headings. The section headings contained in this Note are
for reference purposes only and shall not affect the meaning or interpretation
of this Note.
(b) Amendment and Waiver. No provision of this Note may be amended or
waived unless Payor shall have obtained the written agreement of Payee. No
failure or delay in exercising any right, power or privilege hereunder shall
imply or otherwise operate as a waiver of any rights of Payee, nor shall any
single or partial exercise thereof preclude any other or future exercise thereof
or the exercise of any other right, power or privilege. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
(c) Successors, Assigns and Transferors. The foregoing, the
obligations of Payor and Payee under this Note shall be binding upon, and inure
to the benefit of, and be enforceable by, Payor and Payee, and their respective
successors and permitted assigns, whether or not so expressed.
(d) Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of Florida, 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
23
If to Payor, addressed to:
Xxxxxxx Family Towers, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Fax: 941) 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 Xxxx Acquisition Partnership
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
24
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
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 XXXX ACQUISITION PARTNERSHIP ("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:
a. The Tower, such Tower more particularly described in Exhibit
A of the Asset Purchase Agreement; and
b. The Access Agreement attached as Exhibit B1 of the Asset
Purchase Agreement.
Items a. and b. above are hereinafter referred to as the "Assigned Assets."
2. Purchaser hereby accepts the sale, conveyance and assignment of the
Assigned Assets, effective as of 12:01 a.m. Eastern Time on February __, 2000.
3. Purchaser hereby assumes and agrees to pay and perform the Assumed
Liabilities pursuant to Section 2 of the Asset Purchase Agreement, effective as
of 12:01 a.m. Eastern Time on February __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request of
the other party, promptly obtain, execute and deliver, or cause to be obtained,
executed and delivered, to the other party such assignments, bills of sale,
endorsements, and other such instruments or
26
documents to be executed by Seller or Purchaser, as the case may be, in addition
to this Agreement, in form and substance reasonably satisfactory to the other
party, as such other party may reasonably deem necessary or desirable so as (i)
to vest in Purchaser title to and possession of the Assigned Assets and (ii) to
perfect and record, if necessary, the sale, assignment, conveyance, transfer and
delivery to Purchaser of the Assigned Assets.
5. This Agreement is made pursuant to, and is subject to all of the
terms, representations, warranties and covenants of, the Asset Purchase
Agreement, the terms of which are hereby incorporated by reference. In the event
of any conflict between this Agreement and the Asset Purchase Agreement, the
terms of the Asset Purchase Agreement shall govern.
[Signature page follows]
27
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the day and year first written above.
SELLER:
XXXXXXX XXXX ACQUISITION
PARTNERSHIP
By: XXXXXXX XX ACQUISITION CORP.,
its general partner
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 GROUND LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is entered into as
of this _____ day of February, 2000 by and between XXXXXXX XXXX ACQUISITION
PARTNERSHIP ("Assignor"), XXXXXXX FAMILY TOWERS, INC., ("Assignee"), and THE
MIAMI HERALD PUBLISHING COMPANY, a division of XXXXXX-XXXXXX NEWSPAPERS, INC.
("Lessor").
WHEREAS, Lessor and Storz Broadcasting Co. ("Storz"), entered into that
certain Lease Agreement, dated January 9, 1985, leasing certain real property to
Storz (such Lease Agreement called herein the "Lease");
WHEREAS, Storz assigned its right, title and interest in and to the Lease
to Sunshine Wireless Company, Inc. ("Sunshine"), pursuant to that certain
Assignment of Lease, dated September 23, 1985, by and between Storz and
Sunshine;
WHEREAS, Sunshine assigned its right, title and interest in and to the
Lease to Assignor, pursuant to that certain Assignment of Lessee's Interest in
Leases and Assumption Agreement, dated October 8, 1996, by and between Sunshine
and Assignor;
WHEREAS, Assignor intends to sell and convey to Assignee certain tower
assets used and held for use in the operation of broadcast station WQAM-AM,
Miami, Florida, pursuant to the terms of that certain Agreement of Sale (the
"Purchase Agreement"), dated as of February ___, 2000, by and between Assignor
and Assignee;
WHEREAS, in connection with such transaction, Assignor is required to
assign to Assignee all of Assignor's right, title and interest, as lessee, in
and to the Lease; and
WHEREAS, Lessor's consent is required to validly effectuate such
assignment.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Assignment. Assignor hereby transfers, conveys and assigns to Assignee
all of Assignor's right, title and interest in, to and under the Lease.
2. Assumption of Lease Liabilities. Assignee hereby assumes the
liabilities, duties and obligations of Assignor under the Lease which accrue on
or after the date hereof, and Assignor shall have no further liability or
responsibility therefor.
3. Lessor's Consent. Lessor hereby consents to Assignor's assignment of
its right, title and interest in, to and under the Lease.
29
4. Counterparts. This Assignment of Lease may be executed in counterparts.
[Signature pages follow]
30
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the
day and year first written above.
[SEAL] ASSIGNOR:
XXXXXXX XXXX ACQUISITION PARTNERSHIP
ATTEST: By: XXXXXXX XX ACQUISITION
CORP., its general partner
By:
--------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
----------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: )
------------------
) ss.
COUNTY OF )
-----------------
This is to certify that on the _____ day of February, 2000, before me
personally appeared Xxxxxx X. Xxxxxxx with whom I am personally acquainted, who,
being by me duly sworn, says:
That he is Chief Executive Officer and B. Xxxxxxxx Xxxxxxx is Secretary of
XXXXXXX XX ACQUISITION CORP., the corporation described in and which executed
the foregoing instrument; that he knows the common seal of said corporation;
that the seal affixed to the foregoing instrument is said common seal, and the
name of the corporation was subscribed thereto by the said Chief Executive
Officer, attested by said Secretary, and said common seal was affixed, all by
authority duly conferred, and that said instrument is the act and deed of said
corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
----------------------------------
NOTARY PUBLIC
My commission expires:
--------------------------
31
[SEAL] ASSIGNEE:
XXXXXXX FAMILY TOWERS, INC.
ATTEST: By:
--------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
----------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
STATE OF: )
------------------
) ss.
COUNTY OF )
-----------------
This is to certify that on the _____ day of February, 2000, before me
personally appeared Xxxxxx X. Xxxxxxx with whom I am personally acquainted, who,
being by me duly sworn, says:
That he is Chief Executive Officer and B. Xxxxxxxx Xxxxxxx is the Secretary
of XXXXXXX FAMILY TOWERS, INC., the corporation described in and which executed
the foregoing instrument; that she knows the common seal of said corporation;
that the seal affixed to the foregoing instrument is said common seal, and the
name of the corporation was subscribed thereto by the said Chief Executive
Officer, attested by said Secretary, and said common seal was affixed, all by
authority duly conferred, and that said instrument is the act and deed of said
corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
----------------------------------
NOTARY PUBLIC
My commission expires:
--------------------------
32
[SEAL] LESSOR:
THE MIAMI HERALD PUBLISHING
COMPANY, a division of XXXXXX-XXXXXX
NEWSPAPERS, INC.
ATTEST: By:
--------------------------
Name:
Its:
----------------------------
Name:
Title:
STATE OF: )
------------------
) ss.
COUNTY OF )
-----------------
This is to certify that on the _____ day of February, 2000, before me
personally appeared ____________ with whom I am personally acquainted, who,
being by me duly sworn, says:
That ____________ is ____________ and ____________ is the ____________ of
THE MIAMI HERALD PUBLISHING COMPANY, a division of KNIGHT RIDDER NEWSPAPERS,
INC., the corporation described in and which executed the foregoing instrument;
that she knows the common seal of said corporation; that the seal affixed to the
foregoing instrument is said common seal, and the name of the corporation was
subscribed thereto by the said ____________, attested by said ____________, and
said common seal was affixed, all by authority duly conferred, and that said
instrument is the act and deed of said corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
----------------------------------
NOTARY PUBLIC
My commission expires:
--------------------------
33
EXHIBIT F
FORM OF LEASE AGREEMENT
34
LEASE AGREEMENT (O&L - WQAM-AM)
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000 by and
between XXXXXXX FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and
XXXXXXX XXXX ACQUISITION PARTNERSHIP, a Delaware general partnership ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower described on Exhibit A hereto
("Tower"), on a certain tract of real estate located at Miami, Florida, 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 on such land);
WHEREAS, Lessor desires to lease the Tower for the purpose of Lessee's
radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower from Lessor therefor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants
herein contained, the parties hereto agree as follows:
1. LEASE COMMENCEMENT.
1.01 COMMENCEMENT OF TERM. The term of this Lease and the payment of
rent and other performances in accordance with the terms of this Lease shall
commence on the date hereof.
1.02 EXHIBITS. All Exhibits referred to in this Lease are incorporated
herein by reference.
2. DESCRIPTION OF THE LEASEHOLD.
2.01 TOWER. Lessor hereby leases to Lessee, and Lessee leases from
Lessor, the Tower, for the purposes of the broadcast transmission of WQAM-AM,
Miami, Florida.
2.02 OWNERSHIP OF PROPERTY; ACCESS.
(a) Except for "Lessee's Property" as defined below, all tenant
improvements including all fixtures and trade fixtures shall become the property
of the Lessor, and shall remain with the Tower 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 Lssee's Property, and are
hereinafter referred
35
to as "Lessee's Property". Lessee will be solely responsible for the maintenance
of Lessee's Property, including all expenses associated with such repair.
(c) Lessee shall have reasonable right of access to the Tower at
all times in emergency situations and whenever reasonably necessary for
equipment maintenance and repair. Lessee shall also have reasonable rights of
access at any time to the Tower for ingress, egress, utilities, the locating and
usage of cabling and related equipment, operations, maintenance, repair or
remodeling, or other engineering purposes.
3. PERMITTED USES.
3.01 BY LESSEE.
(a) Subject to all appropriate government approvals, including
the Federal Communications Commission ("FCC"), the Tower may be used only for
activities related to the operation of radio broadcast stations. Such
operations, shall be conducted in accordance with the standards imposed by the
FCC and any other governmental body with authority over such transmission and
operations.
(b) Except as expressly permitted by this Lease and unless prior
written approval of Lessor has been given, Lessee shall not construct or make
any improvements or install any equipment on the Tower. Lessee may repair and
maintain equipment as it deems necessary to its operations within Lessee's space
in all respects in compliance with the terms hereof. The Tower, Lessee's
interior and exterior equipment, and all other improvements shall be maintained
in an orderly and professional manner.
3.02 BY LESSOR.
(a) Subject to the rights elsewhere granted to Lessee in this
Lease and with prior notice to Lessee and no loss of service or interruption
(beyond a temporary, non-recurring and de minimis amount), Lessor reserves the
right to use the Tower, at its own expense, as it sees fit and to fasten
additional equipment to the Tower for any purpose, including the right to
install transmitting and/or receiving antennas of others; provided that Lessor
shall use reasonable efforts to restrict any loss of Lessee's service or
interruption pursuant to this Section 3.02(a) to the hours of 1:00 a.m. to 5:00
a.m.
(b) Subject to the rights elsewhere granted to Lessee in this
Lease, Lessor shall have the right to use for itself or lease to others the
remainder of the Tower Site or use of any of the improvements thereon, space in
any building constructed by Lessor for any purpose, including, but not limited
to, any kind of broadcasting or communication, simultaneous transmissions on AM,
FM, SSB, VBIF, UHF, and/or microwave frequencies, and all rental revenues
received therefrom shall belong exclusively to Lessor. Prior to permitting the
fastening of a material amount of additional equipment, Lessor shall cause a
structural analysis of the Tower to be conducted by a reputable mechanical
consultant chosen by Lessor in order to ensure that any such additions conform
to recognized engineering standards.
2
36
(c) Except as expressly provided for herein, Lessor shall have no
liability for any action or omission taken in exercise of its rights hereunder
upon reasonable reliance on recommendation of its engineering personnel.
(d) Subject to the terms of this Lease, Lessor also reserves the
right to erect one (1) or more additional towers on the Tower Site.
4. TERM.
4.01 TERM. This Lease shall have a term of twenty (20) years from the
Commencement Date established in Paragraph 1.01 hereof.
5. RENT.
5.01 RENTAL. Lessee shall pay rent for each consecutive twelve-month
period beginning on the Commencement Date (each a "Lease Year") during the term
of this Lease. Such rental payment shall be payable in equal and successive
monthly installments in advance beginning with the Commencement Date and
continuing thereafter on the first day of each month during the term of this
Lease, such rental payments to be made according to the following schedule:
--------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
--------------------------------------------------------------------
1 $37,650.96 $3,137.58
--------------------------------------------------------------------
2 $37,650.96 $3,137.58
--------------------------------------------------------------------
3 $37,650.96 $3,137.58
--------------------------------------------------------------------
4 $37,650.96 $3,137.58
--------------------------------------------------------------------
5 $37,650.96 $3,137.58
--------------------------------------------------------------------
6 $37,650.96 $3,137.58
--------------------------------------------------------------------
7 $37,650.96 $3,137.58
--------------------------------------------------------------------
8 $37,650.96 $3,137.58
--------------------------------------------------------------------
9 $37,650.96 $3,137.58
--------------------------------------------------------------------
10 $37,650.96 $3,137.58
--------------------------------------------------------------------
11 $37,650.96 $3,137.58
--------------------------------------------------------------------
12 $37,650.96 $3,137.58
--------------------------------------------------------------------
13 $37,650.96 $3,137.58
--------------------------------------------------------------------
14 $37,650.96 $3,137.58
--------------------------------------------------------------------
15 $37,650.96 $3,137.58
--------------------------------------------------------------------
16 $37,650.96 $3,137.58
--------------------------------------------------------------------
17 $37,650.96 $3,137.58
--------------------------------------------------------------------
18 $37,650.96 $3,137.58
--------------------------------------------------------------------
19 $37,650.96 $3,137.58
--------------------------------------------------------------------
20 $37,650.96 $3,137.58
--------------------------------------------------------------------
5.02 PAYMENT OF RENTALS. Rentals to be paid hereunder shall be paid
monthly in lawful money of the United States of America and shall be paid in
advance on the first day of each month during the term of this Lease by the
Lessee by crediting the payment owed to Lessee by Lessor under that certain
Promissory Note made by Lessor in favor of Lessee dated ___________, 2000, on
the first day of each month during the term of this Lease. In the event of
prepayment of the Promissory Note by Lessor or other action resulting in amounts
equal
3
37
to any monthly rental payment not being concurrently due from Lessor under the
Promissory Note, then Lessee shall pay the monthly rental amount in advance on
the first day of the month in question by mailing payment to the Lessor c/x
Xxxxxxx Family Tower, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. Xxxxxxxx Xxxxxxx, or to such other person or address as Lessor may in
writing direct. The payment of the monthly rental for the first month of the
term of this Lease shall be prorated based on the number of days remaining in
such month, including the first day on which this Lease become effective.
5.03 ELECTRICITY AND OTHER UTILITIES. In addition to the payments
prescribed under Section 5.01 of this Lease, Lessee shall pay for its own
telephone lines and service, electrical service (including electrical service to
the Tower used by Lessee as measured by a separate electrical meter at Lessee's
expense). Lessor shall pay for the electrical service to the Tower for the Tower
lighting.
6. AUTHORITY.
6.01 QUIET ENJOYMENT. Lessor represents and warrants that it has the
full power and authority to enter into this Lease, and covenants and agrees that
Lessee, upon paying the rents described herein and observing and keeping the
covenants, agreements, and stipulations of this Lease on Lessee's part to be
observed and kept, shall lawfully, peaceably, and quietly hold, occupy, and
enjoy the Tower, and all other rights and privileges granted herein, without
hindrance, eviction, or molestation by Lessor or any party claiming by or
through Lessor.
6.02 LESSEE'S APPROVAL. Lessee represents and warrants that it has the
full power and authority to enter into and perform this Lease. Any and all
necessary corporate resolutions, encumbrance certificates, etc., shall be
supplied by Lessee upon the request of Lessor.
7. PERMITS.
7.01 PERMITS. Lessor shall obtain all necessary licenses or permits in
connection with the Tower except that Lessee shall obtain, at its own expense,
any and all necessary licenses or permits from such governmental authorities as
shall have jurisdiction in connection with the (b) the operations, installation,
repair, alteration, or replacement of Lessee's equipment (including, without
limitation, Lessee's antenna and transmission and/or receiving equipment); or
(c) with any of Lessee's activities thereon or contemplated by this Lease. At
Lessor's request, Lessee shall furnish Lessor with copies of same, and shall
abide by the terms and provisions of such licenses and permits.
8. MAINTENANCE OF TOWER AND LESSEE'S PROPERTY.
8.01 DURING TERM OF LEASE.
(a) Lessee, at its own cost and expense, shall maintain and
repair Lessee's Property, including specifically its antenna, related equipment,
transmission lines, transmitters, and other equipment. Lessor shall perform the
same tasks with respect to Tower. All such maintenance shall be conducted by the
parties in accordance with good engineering
4
38
standards and in conformity with the requirements of the FCC or any other body
having jurisdiction over the Lessee and its property, including, without
limitation, any rules, regulations, or guidelines of the FCC implementing the
National Environmental Policy Act of 1969 pertaining to electromagnetic or radio
frequency radiation. Each of Lessor and Lessee shall take all reasonable
precautions to avoid interference or hindrance to and with the operations of the
other party hereto. In this regard, each party hereto agrees to eliminate,
without cost to the other party hereto, any interference or hindrance to such
other party's operation. Maintenance and repair of Lessee's Property shall be
performed only by a reputable contractor and in accordance with the provisions
of subsections (d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's Property during
normal business hours upon reasonable notice to Lessee, except that, in the
event of an emergency, as determined by Lessor, Lessor may enter at any time,
giving notice of such emergency to Lessee as soon as is practical. In the event
that Lessor reasonably determines that Lessee has not maintained Lessee's
Property and equipment in good order and repair according to industry standards,
and that such repairs are necessary for the safety of the Tower or the Tower
Site, or the prevention of interference with Lessor or any other user of the
Tower or any other broadcaster, Lessor may, at its option, make such emergency
repairs to the property as it deems reasonably necessary, and any amount
expended by Lessor therefor shall be reimbursed to it by Lessee immediately upon
presentation of a statement and shall be deemed additional rent. Lessor shall
not be liable for inconvenience, disturbance, loss of business, or other damage
to Lessee by reason of repairing any of Lessee's Property which Lessee has
failed to properly maintain.
(c) With respect to the non-emergency repairs which Lessor, in
its reasonable discretion, determines that Lessee should make to maintain
Lessee's Property and equipment in good order, and that such repairs are
necessary for the safety of the Tower or Tower Site, or the prevention of
interference with Lessor, in violation of the terms of this Agreement, Lessor
shall so notify Lessee in writing, specifying the maintenance and repairs
required to be performed by Lessee. In the event that, within ten (10) business
days following such written notice (or such longer period as may be reasonably
necessary taking into account all facts and circumstances), Lessee shall not
have performed such maintenance and repairs, Lessor may, at its sole option,
make such repairs as it deems reasonably necessary, and any amount expended by
Lessor therefor shall be deemed additional rent. Lessor shall not be liable for
inconvenience, disturbance, loss of business, or other damage to Lessee by
reason of repairing the property and equipment of Lessee which Lessee has failed
to properly maintain.
(d) No work (including electrical work), except for emergency
repairs that Lessee shall perform to return to, or maintain the station on air
in the event of a failure, will be performed by the Lessee in connection with
the installation, alteration, maintenance, repair, or removal of any of Lessee's
transmission lines, antenna, and other equipment on the Tower unless the Lessee
submits to Lessor a copy of the proposed contract and also detailed plans and
specifications of the work to be done, and both the contract and the plans 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.
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(e) With respect to any work to be performed by or on behalf of
Lessee in connection with the installation, alteration, maintenance, repair, or
removal of any equipment on the Tower (including any ascension of the Tower), or
in or about the Tower Site. Lessee may only employ a contractor who has been
approved in writing and in advance by Lessor. Lessor agrees that it will not
unreasonably withhold its approval of any contractor who has the requisite
experience and industry standard insurance coverage and who will, at the sole
option of Lessor, provide a bond to cover any work which it has been retained to
perform. Lessor agrees to consult on call in any emergency situation and
immediately give its approval or disapproval.
(f) All work by or on behalf of the Lessee or Lessor shall be
carried out (i) in a good and workmanlike manner; (ii) in accordance with
established engineering standards and public ordinances, rules, and regulations
applicable to such work, including, without limitation, any rules, regulations,
or guidelines of the FCC implementing the National Environmental Policy Act of
1969, pertaining to electromagnetic or radio frequency radiation; (iii) in
accordance with plans and specifications, including mechanical and electrical
drawings, which have been submitted to and approved in writing and in advance by
Lessor; and (iv) in accordance with Lessor's security procedures with respect to
protection of the Tower Site.
(g) Notwithstanding the receipt of the approvals by Lessor as
required in this paragraph, Lessee shall not be relieved of its responsibilities
and liabilities for interference or otherwise as herein provided, nor shall said
approval be deemed a waiver of any other rights of Lessor under this Lease.
(h) In the event that any notice of lien or lien shall be filed
against any part of the Tower Site for work claimed to have been done or
materials claimed to have been furnished to Lessee, the same shall be dismissed,
withdrawn, discharged or bonded (to Lessor's reasonable satisfaction) by Lessee
within thirty (30) days thereafter at Lessee's expense; and if Lessee shall fail
to take such action as shall cause such lien to be discharged within thirty (30)
days, Lessor may, at its option, discharge the same by deposit or by bonding
proceedings. Lessor may require the lienor to prosecute the appropriate action
to enforce the lienor's claim. In such case, Lessor shall give immediate notice
to Lessee of such pending action or proceeding so that Lessee may have an
opportunity to legally contest or defend the action or proceeding. If, after
such notice to Lessee, a judgment is recovered on the claim, Lessor, at its sole
option, may pay the judgment. Any reasonable amount paid or expense incurred or
sum of money paid by Lessor (including reasonable attorney's fees) by reason of
the failure of Lessee to comply with the foregoing provisions of this paragraph,
or in defending any such action, shall be paid to Lessor by Lessee, and shall be
treated as additional rent hereunder.
8.02 AT EXPIRATION OR TERMINATION. At the expiration or termination of
this Lease, Lessee shall promptly surrender possession of the Tower 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.
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9. MAINTENANCE OF TOWER.
9.01 MAINTENANCE OF TOWER.
(a) Lessor shall maintain the Tower in good repair. Lessee shall
comply with any security policies reasonably established from time to time by
Lessor.
(b) Lessor assumes the obligation and responsibility for
complying with the requirements of the FCC regarding obstruction, marking and
lighting of the Tower. Lessor shall maintain the Tower and support systems in
good repair and in good operating condition in accordance with the requirements
of governmental authorities.
(c) In the event that Lessor determines that repairs,
alterations, or improvements are necessary or desirable to the Tower or the
leased spaces of other tenants, Lessor may, upon reasonable notice and for the
shortest practical period of time (except for emergency situations), close
entrance doors, common areas, drive-ways, rights-of-way, service areas, parking
areas, or any other facilities at its discretion without being liable to Lessee;
provided that if any of the above would restrict Lessee's ability to broadcast,
Lessor shall use reasonable efforts to restrict any closure or interruption
pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00 a.m.. The
closing of entrances, doors, common areas, parking areas, or other facilities
for the making of the repairs, alterations, or improvements described herein
shall, under no circumstances, constitute an eviction of the Lessee or be
grounds for termination of this Lease or the withholding of any rental payments
or other payments or performances required to be paid or made by Lessee under
the terms hereof, provided, Lessor shall use reasonable efforts to ensure that
any action taken in accordance with this paragraph shall not adversely affect
the rights of Lessee hereunder. Under no such circumstances shall Lessee be
entitled to terminate this Lease nor shall it be entitled to compensation for
any loss or damage it may sustain (including loss of use, loss of
advertising/sponsorship revenues, and consequential damages) by reason of such
changes or alterations.
10. ALTERATIONS BY LESSEE.
10.01 ALTERATIONS.
(a) Lessee shall have the right, at its own expense, to make
such changes and alterations in the Lessee's Property situated on the Tower,
subject to Paragraph 8.01 and Paragraph 11 hereof, as its operations may
require, including the renovation, replacement, or removal of its antenna;
provided, however, that such changes or alterations conform with recognized
engineering standards and, if necessary, have been approved by the FCC and any
other authority having jurisdiction over Lessee; and provided further, that
plans and specifications are first submitted to and approved in writing by
Lessor. Lessee shall make no changes in the equipment or equipment position
without such approval, and Lessor shall not unreasonably fail to give such
approval within ten (10) business days.
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(b) This Lease is based upon carefully computed tower loading
capacity. If any change proposed by Lessee in the type, location, or positioning
of Lessee's Property should, in Lessor's judgment, require a computer or other
type of feasibility study to determine Tower loading capacity, such study shall
be performed by an engineer chosen by Lessor, and approved by Lessee (such
approval not to be unreasonably withheld, delayed or conditioned) whose decision
shall be final and binding upon both parties. The cost of such study or any
other costs reasonably incurred by Lessor in determining the feasibility of any
proposed change or alteration in the type, location, or positioning of Lessee's
Property shall be borne entirely by Lessee.
11. INTERFERENCE.
11.01 PRELIMINARY STEPS TO AVOID INTERFERENCE.
Before Lessee shall make any new installation on the Tower after the date
hereof, notification of the particulars of such proposed installation shall be
submitted to Lessor hereto and any other lessees or users of space on the Tower
whose names and addresses are supplied to Lessee by Lessor in writing, and the
Lessor and such other users will be requested to advise, in writing, the Lessee
and Lessor, as applicable, within ten (10) days after receipt of such
notification, whether they have any reasonable objections thereto on the grounds
that objectionable interference may result; provided, this Section 11.01 shall
not apply to any currently installed Lessee's Property or its replacement,
maintenance or repair. If the Lessor or any other user shall reasonably object
within this period to such plans and Lessee is unwilling to alter its plans to
meet the objections, the dispute shall be submitted to an independent
professional engineer chosen by Lessor, and such engineers decision shall be
final and binding upon all parties. The cost of any such studies shall be borne
by Lessee.
11.02 INTERFERENCE WITH LESSOR, LESSEE, OR OTHERS. Notwithstanding the
provisions of Paragraph 11.01, should any change, after the date hereof, in the
facilities or mode of operation of Lessee or Lessee's failure to comply with the
Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable
electrical or physical interference (including interference from any other
structure erected on the Tower Site) to the television and/or radio broadcasting
and/or receiving operations of any other lessee, then, promptly after written
notification of such interference, the Lessee, at its sole expense, will take
such steps as may be reasonably required to correct such interference,
including, but not limited to, changing frequency, ceasing transmission,
reducing power, and/or the installation of any filters or other equipment,
provided that, if such interference is caused, after the date hereof, by the
failure of the Lessor or any other lessee suffering the interference to comply
with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor
shall, or shall cause the other lessee suffering the interference, at its sole
expense, to comply with such Maintenance Standards. Any dispute as to the cause
of interference, or the steps reasonably required to correct it, arising under
this 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
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such changed facilities or operation, the fees and charges of the engineer to
whom the dispute is referred shall be borne by the party whose changed
facilities or mode of operations gave rise to the claimed interference. If such
interference is found not to be caused by such changed facilities or operations,
the fees and charges of the engineer to whom the dispute is referred shall be
borne by the objecting party. All other leases and/or agreements to lease space
at the Tower Site shall contain this language.
11.03 INTERFERENCE BY OTHER USER. Any subsequent agreement under which
Lessor allows any other person to occupy any portion of the Tower shall provide
that, should the installation, operation, or maintenance of the equipment or the
activities of such other person cause any objectionable interference with the
operations of Lessor or Lessee, then, promptly after written notification of
such, such other tenant or user, at its sole expense, will take such steps as
may be reasonably necessary to correct such interference, including, but not
limited to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filter or other equipment, provided that if such
interference is caused by the failure of any other lessee to comply with the
Maintenance Standards, as defined in Paragraph 11.04, such other lessee will, at
its sole expense, comply with such Maintenance Standards. To the best of its
ability, Lessor shall not permit any operations by other tenants, the effect of
which would be to prohibit Lessee from operating in the manner contemplated
herein, without the prior written consent of Lessee. Lessor shall have no
liability for any action or omission taken upon reasonable reliance on the
recommendation of qualified engineering personnel. Lessor agrees that it will
take commercially reasonable efforts to ensure that the installation, operation
or maintenance of its equipment which is installed after the commencement date
of this Lease on, in or around the Tower shall not cause any objectionable
interference with the operations of Lessee. Immediately upon notification of
such interference by Lessee, Lessor shall at its sole expense take such steps as
may be reasonably necessary to correct such interference, including, but not
limited to, changing frequency, ceasing transmission, reducing power, and/or the
installation of any filter or other equipment.
11.04 DEFINITION OF "MAINTENANCE STANDARDS". For the purposes of this
Lease, compliance with "Maintenance Standards" shall mean that a tenant or user
of the Tower shall (a) maintain and operate its equipment in accordance with the
requirements, rules, regulations, and guidelines of the FCC, and the standards
of manufacturers of the equipment; and (b) maintain and operate its equipment in
accordance with good engineering practice.
12. UTILITIES.
12.01 UTILITIES. Subject to the required approvals and cooperation of
any governmental authority or public utilities, Lessee shall arrange and be
responsible for the installation and provision of electrical and telephone lines
serving Lessee's Property at any building on the Tower Site owned by Lessor.
Lessee shall be responsible for procurement of and payment for all telephone
services as described in Paragraph 5.03 and used by Lessee.
13. TAXES.
13.01 PAYMENT OF TAXES. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Tower Site (including the
Tower), and all taxes which may be assessed against the Tower and any buildings
thereon. [Foregoing obligation is subject to $200,000 12-month limit when
aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement]. Lessee shall pay all personal
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property or other taxes assessed or imposed on Lessee's Property, and shall
cooperate with Lessor to ensure that such property is properly separated from
that of Lessor or other tenants for assessment purposes.
14. INSURANCE.
14.01 PUBLIC LIABILITY. Lessee shall procure and maintain
comprehensive public liability insurance, naming Lessor as an additional insured
as its interests shall appear, covering all of the Lessee's operations and
activities on the Tower, including but not limited to, the operations of
contractors and subcontractors and the operation of vehicles and equipment
(including the Tower elevator), with limits of liability for the term of this
Lease of not less than Five Million Dollars ($5,000,000.00) in the aggregate for
personal injury or death in any occurrence and not less than Five Million
Dollars ($5,000,000.00) to cover property damage, with a liability umbrella of
not less than One Million Dollars ($1,000,000.00). Certificates evidencing such
insurance shall be furnished to Lessor upon its request. The amounts specified
hereunder shall be revised every five (5) years to such amounts as Lessor may
reasonably require upon the advice of its insurance consultants. [Foregoing
obligation is subject to $200,000 12-month limit when aggregated with other
borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement].
14.02 CONTRACTOR LIABILITY. Lessee shall also cause the contractors
erecting, installing, or maintaining Lessee's Property or performing any other
work for Lessee on the Tower Site to procure reasonable public liability
insurance acceptable to Lessor and naming the Lessee and Lessor as named
insureds. Certificates evidencing such insurance shall be furnished to Lessor in
advance of any work being performed.
14.03 TOWER INSURANCE. Lessee shall procure and maintain physical
damage insurance on the Tower in an amount sufficient to repair or replace the
Tower with such coverage to be on an "All Risks" basis, including, without
limitation, coverage for the perils of fire, lightning, windstorm, hall, flood,
earthquake, collapse, explosion, aircraft and vehicle damage, vandalism, and
malicious mischief. [Foregoing obligation is subject to $200,000 12-month limit
when aggregated with other borrowers under Credit Agreement per 1.5D of First
Amendment to Credit Agreement]. Lessee shall be solely responsible for its
insurance on Lessee's Property, together with business interruption insurance.
14.04 TOWER DAMAGE. In the event that the Tower is destroyed or
damaged by fire, lightning, windstorm, flood, earthquake, explosion, collapse,
aircraft, or other vehicle damage or other casualty covered by insurance, Lessor
shall promptly reconstruct or repair the Tower to such good condition as existed
before the destruction or damage, and give possession to Lessee of substantially
the same space leased hereunder. Lessee shall promptly pay over to Lessor any
insurance proceeds it receives from insurance policies Lessee is required to
procure under Section 14.03 hereof for the purpose of use by Lessor to fund
reconstruction of the Tower as required of Lessor under this Section 14.04. If
the Tower is in need of such repair or is so damaged by fire, lightning,
windstorm, flood, earthquake, explosion, aircraft or other vehicle damage,
collapse, or other casualty that reconstruction or repair cannot reasonably be
undertaken without dismantling Lessee's antenna, then upon written notice to
Lessee, Lessor may remove
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any such antenna and interrupt the signal activity of Lessee, but will use its
best efforts to have the antenna replaced as soon as reasonably possible. Lessor
agrees to provide Lessee an alternative tower, if available, during such
reconstruction/repair period. If such tower is not available, then Lessee shall
be responsible for procuring its own alternative tower. No monetary or other
rental shall be due pursuant to the terms of this Lease for such time as Lessee
is unable to conduct its broadcasting activities on the Tower without
significant diminution of signal quality as a result of such total or partial
destruction or damage or need of repair, and Lessor shall refund to Lessee any
rent paid in advance for such time. Should Lessor not either (a) inform Lessee
in writing within ninety (90) days of the date of destruction of Lessor's intent
to replace the Tower or (b) replace the Tower within one (1) year if Lessor has
provided the notice described in clause (a) above, of the date of destruction,
or repair the same within such shorter time period after the casualty as may be
reasonable, then Lessee, upon thirty (30) days' written notice to Lessor, may
terminate this Lease, provided if Lessor has provided the notice described in
clause (a) above, Lessee must make such election within one hundred twenty (120)
days prior to the expiration of said repair or replacement period. Lessee agrees
that it shall maintain adequate business interruption insurance at all times
during the term of this Lease to adequately protect it from any interruption of
signal activities due to Tower damage (including costs of reinstallation of its
equipment and lines), and Lessor shall have no liability on account of such
business interruption or reinstallation costs due to damage or destruction under
this paragraph.
15. EMINENT DOMAIN.
(a) In the event that all of the Tower (or any portion of the
Tower necessary for the guy wires, or other appurtenances necessary to Lessee's
broadcasting operations) is acquired or transferred or condemned pursuant to
eminent domain proceedings (or the threat thereof), the obligation of the
parties under this Lease shall be terminated as of the date of acquisition or
transfer. Lessor shall be entitled to the entire condemnation award. If Lessor
determines to build a new tower as a replacement for the Tower on the condemned
property, Lessor agrees to lease the new tower on terms reasonably equivalent to
the terms of this Lease.
(b) In the event that this Lease is terminated due to eminent
domain proceedings, then Lessee shall be relieved of any further obligations to
make any rental payments or performances for any period after the date of such
termination of this Lease; and subject to offset or withholding by Lessor to
cover any unpaid additional rent or other authorized charges which may be owed
through the date of termination, Lessee shall be entitled to a refund of any
advance rental sums which it has paid in proportion to the period of the Lease
through such date of termination.
16. SUCCESSORS AND ASSIGNMENT.
16.01 SUCCESSORS. All rights and liabilities herein given to or
imposed upon the respective parties hereto shall, to the extent that such are
assignable, extend to and bind the several and respective successors and assigns
of the parties hereto.
16.02 ASSIGNMENT. Lessee shall not assign, sublet, or transfer this
Lease or any interest therein, or permit or allow through any act or default of
itself, or of any other
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person, any transfer thereof by operations of law or otherwise without the prior
written consent of Lessor except:
(a) Lessee may assign this Lease to any bona fide third party
purchaser of substantially all the assets comprising of Lessee's radio station
broadcasting from the Tower Site, who shall execute an assignment and assumption
agreement in form reasonably acceptable to Lessor; and
(b) Lessee may assign or transfer all or a portion of the assets
of Lessee, including this Lease, to any corporation controlling, controlled by,
or under common control with, Lessee.
(c) Any assignment or subletting by Lessee except as permitted
herein shall be void and of no effect. Any permitted assignment shall not
relieve Lessee of any of its liabilities hereunder. A change in control of
Lessee, but not the mortgaging by Lessee of its rights hereunder, shall
constitute an assignment of this Lease. Lessor agrees to enter into
documentation reasonably requested by any lender to Lessee in connection with
Lessee's mortgaging of its rights hereunder.
(d) Lessor may assign or transfer this Lease without the consent
of Lessee, but shall notify Lessee following any transfer or assignment.
17. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the
event either party elects to terminate this Lease in accordance with the
provisions herein or at the expiration of the term hereof, Lessee or its
mortgagee shall have the right to remove Lessee's Property, except any fixtures
(it being specifically understood and agreed that Lessee's antenna,
transmitters, transmission line, and similar broadcasting equipment shall not be
deemed fixtures) on the Tower within thirty (30) days of such termination. Such
removal shall be conducted in accordance with Paragraph 8.01 hereof Lessee shall
promptly repair any and all damage caused by such removal. Any of Lessee's
Property remaining on the Tower after the expiration of the thirty (30) day
period shall be deemed to be the property of Lessor, which Lessor may have
removed at Lessee's expense.
18. LESSOR'S PROTECTION.
18.01 DEFAULT BY LESSEE.
(a) If Lessee shall make default in making any payment herein
provided for and any such default shall continue for a period of ten (10)
business days after written notice to Lessee, or if Lessee shall make default in
the performance of any obligation of Lessee herein (other than as to payment of
money) and any such default shall continue for a period of thirty (30) days
after written notice to Lessee, or if Lessee shall file a voluntary petition in
bankruptcy, or if Lessee shall file any petition or institute any proceedings
under any Insolvency or Bankruptcy Act or any amendment thereto hereafter made,
seeking to effect its reorganization or a composition with its creditors, or if,
in any proceedings based on the insolvency of Lessee or relating to bankruptcy
proceedings, a receiver or trustee shall be
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appointed for Lessee or the Tower, or if any proceedings shall be commenced for
the reorganization of Lessee (which, in the case of involuntary proceedings, are
not dismissed or stayed within 30 days of the commencement thereof), or if the
leasehold estate created hereby shall be taken on execution or by any process of
law, or if Lessee shall admit in writing its inability to pay its obligations
generally as they become due, then Lessor may, at its option, terminate this
Lease without notice, and declare all amounts due or to become due hereunder
immediately due and payable, and Lessor's agents and servants may immediately,
or any time thereafter, reenter the Tower by reasonably necessary force, summary
proceedings, or otherwise, and remove all persons and properly therein, without
being liable to indictment, prosecution, or damage therefor, and Lessee hereby
expressly waives the service of any notice in writing of intention to reenter
said Tower. Lessor may, in addition to any other remedy provided by law or
permitted herein, at its option, relet the Tower (or any part thereof) on behalf
of Lessee, applying any monies collected first to the payment of expenses of
resuming or obtaining possession, and, second, to the payment of the costs of
placing the premises in rentable condition, including any leasing commission,
and, third, to the payment of rent due hereunder, and any other damages due to
the Lessor. Any surplus remaining thereafter shall be paid to Lessee, and Lessee
shall remain liable for any deficiency in rental, the amount of which deficiency
shall be paid upon demand therefor to Lessor.
(b) Should Lessor re-enter and terminate according to the
provisions of this subparagraph, Lessor may remove and store the Lessee's
Property at the expense and for the account of Lessee. Alternatively, Lessor may
sell, or cause to be sold, Lessee's Property at public sale to the highest
bidder for cash, and remove from the proceeds of such sale any rent or other
payment then due Lessor under this Lease. Any disposition of the Lessee's
Property pursuant thereto shall be subject to the rights of any lender to Lessee
holding a mortgage on Lessee's Property and shall be made in a manner that is
commercially reasonable within the meaning of the Uniform Commercial Code as in
effect in the State of Florida at the time of such disposition.
19. INDEMNIFICATION.
(a) Each party warrants and represents that it has the authority
to enter into this Lease and to grant the rights it grants hereunder, and that
performance of its obligations pursuant to this Lease will not violate the
rights of any third party whatsoever. Lessee agrees to indemnify and defend
Lessor against any claim for damages, losses, liabilities, costs, or expenses,
including reasonable attorney's fees, arising (a) out of any breach by Lessee of
its warranties, representations, or covenants under this Lease; (b) out of the
use, management, or occupancy of the Tower by Lessee, its agents, or invitees;
(c) out of any omissions, negligence or willful misconduct of Lessee, its
agents, servants, employees, licensees, or invitees; (d) out of failure of
Lessee to comply with any laws, statutes, ordinances, or regulations; (e) out of
Lessee's failure to maintain equipment in proper working order; and (f) out of
Lessee's failure to comply with any of its other obligations under the terms of
this Lease.
(b) Lessor agrees to indemnify and defend Lessee against any
claim for damages, losses, liabilities, costs, or expenses, including reasonable
attorney's fees, arising (a) out of any breach by Lessor of its warranties,
representations, or covenants under this
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Lease; (b) out of the use, management, or occupancy of the Tower by Lessor, its
agents, or invitees; (c) out of any omissions, negligence or willful misconduct
of Lessor, its agents, servants, employees, licensees, or invitees; (d) out of
failure of Lessor to comply with any laws, statutes, ordinances, or regulations;
(e) out of Lessor's failure to maintain equipment in proper working order; and
(f) out of Lessor's failure to comply with any of its other obligations under
the terms of this Lease.
(c) Any party seeking indemnification hereunder ("Indemnified
Party") shall provide the other party ("Indemnifying Party") reasonably prompt
notice of known claims giving rise to any claim for indemnity, and the
Indemnifying Party shall have the right and opportunity to undertake the legal
defense of such claims. The Indemnified Party and its counsel may nevertheless
participate in (but not control) such proceedings, negotiations, or defense at
its own expense. In all such cases, the Indemnified Party will give all
reasonable assistance to the Indemnifying Party, including making the
Indemnified Party's employees and documents available as reasonably requested
without charge.
20. ESTOPPEL CERTIFICATE AND ATTORNMENT.
20.01 ESTOPPEL CERTIFICATE. Within ten (10) days after either party's
request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
20.02 ATTORNMENT. Lessee shall, in the event of a sale or assignment
of Lessor's interest in any of the Tower, or, if any of the Tower 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.
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21. MISCELLANEOUS.
21.01 RELATIONSHIP OF PARTIES. Nothing contained herein and no acts of
the parties herein shall be deemed or construed as creating any relationship
between the parties hereto other than the relationship of Lessor and Lessee or
Landlord and Tenant.
21.02 GOVERNING LAW. This Lease shall be governed and construed and
enforced in accordance with the laws of the State of Florida.
21.03 CAPTIONS. The captions contained in this Lease are included
solely for convenience and shall in no event affect or be used in connection
with the interpretation of this Lease.
21.04 AMENDMENTS. This Lease only may be amended or modified as may be
agreed upon by written instrument executed by the parties hereto.
21.05 INTEREST AND ATTORNEY'S FEES. All sums becoming due or payable
under this Lease, including all money expended pursuant to the provisions hereof
or on account of any default in the performance and observance of any agreements
or covenants herein, shall bear interest at the rate of eight and one-half
percent (8.5%) per annum (or at such lesser rate which is the maximum permitted
by applicable law) from thirty (30) days after the date such sums become due or
payable, or, in the event one of the parties expends money because of a default
by the other, from thirty (30) days after the date the defaulting party received
written notice that such money was expended.
The prevailing party shall be entitled to its reasonable attorney's
fees to collect any payment or to compel any performance ultimately held to be
due under the provisions of this Lease.
21.06 BROKERS AND THIRD PARTIES. Each party represents that it has not
had dealings with any real estate broker or other person who may claim a
commission or finder's fee with respect to this Lease in any manner. Each party
shall hold harmless the other party from all damages resulting from any claims
that may be asserted against the Indemnified Party by any broker, finder, or
other person with whom the Indemnifying Party has or purportedly has dealt.
21.07 NOTICES. Notices given pursuant to this Lease shall be in
writing and shall be given by actual delivery or by mailing the same to the
party entitled thereto at the addresses set forth below or at any such other
address as any Party may designate in writing to any other Party pursuant to the
provisions of this paragraph. Notice given by mail shall be sent by United
States mail, certified or registered, return receipt requested or by nationally
recognized courier serviced providing receipt of delivery. Notices shall be
deemed to be received on the date of actual receipt, in the case of personal
delivery, or on the date of mailing, in the case of mailing. Notices shall be
served or mailed to the following addresses, subject to change as provided
above:
If to the Lessor: Xxxxxxx Family Towers, Inc.
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0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Ms. B. Xxxxxxxx Xxxxxxx
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Lessee: Xxxxxxx Xxxx Acquisition Partnership
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
21.08 WAIVER. It is agreed that the waiving of any of the covenants of
this Lease by either party shall be limited to the particular instance, and
shall not be deemed to waive any other breaches of such covenant or any
provision herein contained.
21.09 ACCORD AND SATISFACTION. No receipt of money by Lessor after the
termination of this Lease or after the service of any notice or after the
commencement of any suit reinstates, continues, or extends the term of this
Lease or affects any such notice or suit.
21.10 LIMITATION OF LIABILITY. Except as otherwise expressly stated
herein, Lessor shall not be liable or responsible to the Lessee or to anyone
claiming under or through the Lessee for any loss or damage caused by the acts
or omissions of any other tenants or any other users of the Tower, or Tower
Site, or for any loss or damage to Lessee's Property caused by fire, water,
bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials
falling from the Tower, or the malfunction of any utility, facility, or
installation, or by reason of any other existing condition or defect in the
Tower; nor shall Lessor be liable or responsible to the Lessee for any injury or
damage suffered by the Lessee and allegedly caused by technical interference
with the Lessee's operations, by the activities of any other tenants or users of
the Tower and Tower Site, or any other broadcasters. Except for Lessor's own
negligent acts, willful misconduct or for breaches of its obligations under this
Agreement, Lessor shall not be liable to Lessee, or to any other person for
property damage or personal injury, including death. Lessor
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shall not be liable under any circumstances for loss of use, loss of sponsorship
or advertising revenue, or any other consequential damages sustained by Lessee.
21.11 PARTIAL INVALIDITY. The invalidity of any provision, clause, or
phrase contained in this Lease shall not serve to render the balance of this
Lease ineffective or void; and the same shall be construed as if such had not
been herein set forth.
21.12 DOCUMENTARY STAMPS. Lessee shall bear the cost of any
documentary stamps occasioned by this Lease should it wish to record this Lease.
21.13 RULES AND REGULATIONS. Lessor may from time to time issue such
rules and regulations in writing which it may consider necessary and desirable.
Lessee agrees to abide by such rules and regulations so long as they do not
unreasonably interfere with Lessee's use and occupancy of the Tower or conflict
with this Lease.
21.14 FORCE MAJEURE. Lessor assumes no responsibility for any losses
or damages to Lessee's Property caused by acts of God, including, but not
limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or
by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for
losses or damages to Lessee's Property caused by any person other than employees
and agents of Lessor. In the event that Lessor shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of acts
of God (including, but not limited to, wind, lightning, rain, ice, earthquake,
flood, or rising water), aircraft or vehicle damage or other casualty,
unforeseen soil conditions, acts of third parties who are not employees of
Lessor, strikes, lock-outs, labor troubles, inability to procure material,
failure of power, governmental actions, laws or regulations, riots,
insurrection, war, or other reasons beyond its control, then the performance of
such act shall be excused for the period of delay and the period for performance
of any such act shall be extended for a period equivalent to the period of such
delay.
21.15 ENTIRE AGREEMENT. This Lease, together with its Exhibits,
constitutes and sets forth the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous offers, negotiations, and agreements (whether oral or written)
between the parties (or any of their related entities) concerning the subject
matter of this Lease.
21.16 COUNTERPARTS AND DUPLICATES. This Lease may be executed in
counterparts, which, when combined, shall constitute a single instrument. The
Lease may also be executed in duplicate editions, each of which shall be
effective as an original.
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IN WITNESS WHEREOF, the parties have hereunto set their respective hands
and seals, as of the day and year first above written.
ATTEST: LESSOR:
XXXXXXX FAMILY TOWERS, INC.
By: (SEAL)
------------------------------ -------------------------
Witness Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
LESSEE:
XXXXXXX XXXX ACQUISITION PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
a general partner
By:
----------------------------- -------------------------
Witness Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive
Officer
By: BRAP HOLDINGS, INC.
a general partner
Witness By:
---------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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EXHIBIT A
DESCRIPTION OF TOWER
That certain three hundred eighty (380) foot high self-supporting communications
tower manufactured by LeHigh situated on a tract of submerged land in Biscayne
Bay and described on Exhibit B herein.
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EXHIBIT B
DESCRIPTION OF TOWER SITE
That certain tract of submerged land in Biscayne Bay, such land more
particularly described as follows:
Commence at the northeast corner of Tract "A" of Herald Park, according to the
plat thereof recorded in Plat Book 121 at Page 4 of the Public Records of Dade
County, Florida; thereof run South 02 degrees 12'25" West along the East line of
said Tract "A" and the Dade County Bulkhead line, according to the Plat thereof
recorded in Plat Book 74 at Page 18 of the Public Records of Dade County,
Florida for a distance of 210.83' to the P.O.B. of the hereinafter described
submerged lands; thence continue South 02 degrees 12'25" West along the East
line of said Tract "A" for a distance of 11.17 feet to a point; thence run South
87 degrees 29'05" East for a distance of 189.61 feet to a point; thence run
South 00 degrees 10'42" West for a distance of 22.52 feet to a point; thence run
South 89 degrees 49'18" East for a distance of 65.30 feet to a point; thence run
North 00 degrees 10'42" West for a distance of 65.30 feet to a point; thence run
South 00 degrees 10'42" West for a distance of 31.61 feet to a point; thence run
North 87 degrees 29'05" West for a distance of 189.22 to the point of beginning.
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