UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the fiscal year ended December 31, 2000
or
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from to
Commission File Number: 0-29253
BEASLEY BROADCAST GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 65-0960915
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
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3033 Riviera Drive, Suite 200
Naples, Florida 34103
(Address of principal executive offices and Zip Code)
(941) 263-5000
(Registrant's telephone number, including area code)
Securities Registered pursuant to Section 12(b) of the Act:
None
Securities Registered pursuant to Section 12(g) of the Act:
Class A Common Stock, $.001 par value
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendments to this Form 10-K. [_]
As of February 9, 2001, the aggregate market value of the Class A common stock held by non-affiliates of the registrant was $90,650,850 based on the closing price on The Nasdaq Stock Market's National Market on such date.
Class A Common Stock, $.001 par value 7,252,068 Shares Outstanding as of February 9, 2001 Class B Common Stock, $.001 par value 17,021,373 Shares Outstanding as of February 9, 2001
BEASLEY BROADCAST GROUP, INC.
FORM 10-K ANNUAL REPORT
FOR THE PERIOD ENDED DECEMBER 31, 2000
TABLE OF CONTENTS
Page
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Part I--Financial Information
Item 1. Business............................................................................... 1
Item 2. Properties............................................................................. 18
Item 3. Legal Proceedings...................................................................... 18
Item 4. Submission of Matters to a Vote of Security Holders.................................... 18
Part II--Other Information
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters.................. 19
Item 6. Selected Financial Data................................................................ 20
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.. 22
Item 7A. Quantitative and Qualitative Disclosures About Market Risk............................. 30
Item 8. Financial Statements and Supplementary Data............................................ 31
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure... 54
Part III
Item 10. Directors and Executive Officers of the Registrant..................................... 54
Item 11. Executive Compensation................................................................. 56
Item 12. Security Ownership of Certain Beneficial Owners and Management......................... 58
Item 13. Certain Relationships and Related Transactions......................................... 59
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K....................... 61
Signatures...................................................................................... 64
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PART I
ITEM 1. BUSINESS
Overview
We were founded in 1961 and are the 16th largest radio broadcasting company in the United States based on 1999 gross revenues. After giving effect to our pending acquisitions in Augusta, we will own and operate 44 stations, 28 FM and 16 AM. Our stations are located in eleven large and midsized markets primarily located in the eastern United States. Nineteen of these stations are located in seven of the nation's top fifty radio markets: Atlanta, Philadelphia, Boston, Miami-Ft. Lauderdale, Las Vegas, New Orleans and West Palm Beach. Our station groups rank among the three largest clusters, based on gross revenues, in seven of our eleven markets and, collectively, our radio stations reach approximately 3.6 million people on a weekly basis. For the year ended December 31, 2000, giving effect to acquisitions and dispositions completed during the period, as well as the pending acquisitions mentioned above and our recent acquisitions in Las Vegas and New Orleans, as if these acquisitions had been completed at the beginning of the period, we had net revenues of $127.2 million, broadcast cash flow of $40.7 million and a net loss of $38.8 million.
We seek to maximize revenues and broadcast cash flow by acquiring and operating clusters of stations in high-growth large and midsized markets located primarily in the eastern United States. Our radio stations program a variety of formats, including urban, contemporary hit radio and country, which target the demographic groups in each market that we consider the most attractive to our advertisers. The combination of our market clusters and our advertising, sales and programming expertise has enabled us to achieve strong same station revenue and broadcast cash flow growth demonstrated as follows:
. same station net revenues increased 10.8% for the year ended December 31, 2000 compared to the same period in 1999; and
. same station broadcast cash flow increased 17.8% for the year ended December 31, 2000 compared to the same period in 1999.
For the periods presented above, we calculate same station results by comparing the performance of radio stations operated by us at December 31, 2000 to the performance of those same stations, whether or not operated by us, in the corresponding period of the prior year. These results include the effect of barter revenues and expenses. Same station results exclude the Las Vegas and New Orleans stations we recently acquired as well as the Augusta stations we have agreed to acquire. They also exclude WPTP-FM in the Philadelphia market, which changed formats during the fourth quarter of 2000.
We are led by our Chairman and Chief Executive Officer, George G. Beasley, who has 40 years of experience in the radio broadcasting industry. Under Mr. Beasley's guidance, excluding the stations that we currently own, we have acquired and disposed of a total of 52 radio stations, including stations in Los Angeles, Chicago, New Orleans, Orlando and Cleveland. We acquired these 52 stations for an aggregate acquisition price of approximately $168.0 million and the total consideration that we received upon disposition was valued at approximately $346.1 million. Mr. Beasley is supported by a management team with an average of 17 years of experience in the radio broadcasting industry. Mr. Beasley and our management team have established a track record of acquiring and operating a substantial portfolio of well run radio stations and, in several instances, have demonstrated the ability to reposition and turn around under-performing stations. We believe that we are well positioned to continue to realize cash flow growth from our existing stations and to acquire and operate new radio stations in both existing and new markets with positive demographic trends and growth characteristics.
Recent Events
On November 6, 2000, we changed the format at WPTP-FM in the Philadelphia market. In connection with this format change, we incurred certain one-time expenses, which were recorded in the statement of operations during the fourth quarter of 2000. We expect revenues, station operating expenses, and broadcast cash flow at WPTP-FM to decrease during the early stages of this transition.
On November 13, 2000, we entered into an agreement to purchase two FM radio stations in the Augusta market for an aggregate purchase price of approximately $12.0 million. We intend to finance this acquisition through our credit facility. The consummation of the pending transaction is subject to certain conditions, including the approval of the FCC. Although we believe these closing conditions are customary for transactions of this type, these conditions may not be satisfied. We expect to close on this transaction during the second quarter of 2001.
On December 28, 2000, we sold all of the radio towers and related real estate assets owned by Beasley Broadcast Group to Beasley Family Towers, Inc., which is owned by George G. Beasley, B. Caroline Beasley, Bruce G. Beasley, Brian E. Beasley, Bradley C. Beasley and Robert E. Beasley for approximately $5.1 million. The purchase price was paid with an unsecured note payable to us from Beasley Family Towers bearing interest at the applicable federal rate. In connection with this transaction, we entered into twenty-year lease agreements to lease the radio towers from Beasley Family Towers. Annual rent under these leases is expected to be approximately $467,000.
On January 14, 2000, we purchased 600,000 shares of common stock of FindWhat.com in exchange for a $3.0 million promissory note. On December 31, 2000, we considered a decline in market value to be other than temporary and recorded an unrealized loss on this investment of approximately $2.4 million.
On December 29, 1998, we filed a lawsuit in the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade County, against the Florida Marlins Inc., Florida Marlins Baseball Team, Ltd., and Front Row Communications for breach of contract and other related claims. The lawsuit is based on actions taken by the Florida Marlins major league baseball team to trade or release key players of the Marlins after the 1997 season, thereby transforming the Marlins into a non- competitive team. On January 14, 2000, the court dismissed the Marlins' motion for summary judgment. On May 22, 1999, the Marlins countersued for breach of contract. On January 10, 2001, we settled both lawsuits with the other parties with no material impact on the financial statements.
On January 31, 2001, we purchased the equity interest in three FM radio stations in the Las Vegas market and two FM and one AM radio stations in the New Orleans market for an aggregate purchase price of approximately $113.5 million. The acquisition was financed through our credit facility.
Initial Public Offering and Corporate Reorganization
On February 11, 2000, we offered and sold 6,850,000 shares of Class A common stock. In connection with our initial public offering, we effected a corporate reorganization. Before our reorganization, we were comprised of a series of subchapter S corporations, a general partnership and a series of limited partnerships and limited liability companies. The subchapter S corporations and the general partnership held the operating assets of our radio stations and the limited partnerships held the FCC licenses for our radio stations. Subchapter S Corporations and partnerships are flow-through entities for federal and some state and local income tax purposes. As a result, our combined net income for federal and some state and local income tax purposes has been reported by and taxed directly to the equity holders of these entities, rather than to us. In connection with our initial public offering, our subchapter S corporation status of these entities terminated, and we became subject to federal and applicable state and local corporate income tax as a subchapter C corporation.
After our reorganization, the various entities comprising our business became indirect, wholly-owned subsidiaries of Beasley Broadcast Group. To effect this corporate reorganization:
. George G. Beasley and members of his immediate family contributed their equity interests in those entities to Beasley Broadcast Group in exchange for a total of 17,021,373 shares of Class B common stock of Beasley Broadcast Group; and
. two of our general managers contributed their equity interests in two of the entities to Beasley Broadcast Group in exchange for a total of 402,068 shares of Class A common stock of Beasley Broadcast Group.
Immediately after these contribution transactions, Beasley Broadcast Group contributed the capital stock and partnership interests it acquired to Beasley Mezzanine Holdings, LLC, in exchange for all the membership interests in Beasley Mezzanine Holdings. As a result, Beasley Mezzanine Holdings became a wholly-owned subsidiary of Beasley Broadcast Group and our radio station assets are owned by a series of wholly-owned subsidiaries of Beasley Mezzanine Holdings.
Operating Strategy
The principal components of our operating strategy are to:
. Develop Market-Leading Clusters. We seek to secure and maintain a leadership position in the markets we serve by creating clusters of multiple stations in each of our markets. Our station groups rank among the three largest clusters, based on gross revenues, in seven of our eleven markets. We operate our stations in clusters to capture a variety of demographic listener groups, which enhances our stations' appeal to a wide range of advertisers. In addition, we have been able to achieve operating efficiencies by strategically aligning our sales and promotional efforts and consolidating broadcast facilities where possible to minimize duplicative management positions and reduce overhead expenses. Finally, we believe that strategic acquisitions of additional stations in existing clusters positions us to capitalize on our market expertise and existing relationships with local advertisers to increase revenues of the acquired stations.
. Conduct Extensive Market Research. We conduct extensive market research to enhance our ratings and in certain circumstances to identify opportunities to reformat a station to reach an underserved demographic group. Our research, programming and marketing strategy combines thorough research with an assessment of our competitors' vulnerabilities and overall market dynamics in order to identify specific audience and formatting opportunities within each market. Using this research, we tailor our programming, marketing and promotions on each station to maximize its appeal to its target audience and to respond to the changing preferences of our listeners.
. Establish Strong Local Brand Identity. Our stations pursue a variety of programming and marketing initiatives designed to develop a distinctive identity and to strengthen the stations' local brand or franchise. In addition, through our research, programming and promotional initiatives, we create a marketable identity for our stations to enhance audience share and listener loyalty. As part of this objective, we promote nationally recognized on-air personalities and local sports programming at a number of our stations. For example, we broadcast nationally- syndicated shows such as "Howard Stern" and we are the flagship station for the Miami Dolphins, Florida Marlins, Florida Panthers and Miami Hurricanes on our sports station in the Miami-Ft. Lauderdale market.
. Build Relationship-Oriented Sales Staff and Emphasize Focused Marketing and Promotional Initiatives. We seek to gain advertising revenue share in each of our markets by utilizing our relationship-oriented sales staff to lead local and national marketing and promotional initiatives. We design our sales efforts based on advertiser demand and market conditions. Our stations have an experienced and stable sales force with an average of three years experience with Beasley Broadcast Group. In addition, we provide our sales force with extensive training, competitive compensation and performance based incentives. Our stations also engage in special local promotional activities such as concerts featuring nationally recognized performers, contests, charitable events and special community events. Our experienced sales staff and these promotional initiatives help strengthen our relationship with our advertisers and listening community.
. Hire, Develop and Motivate Strong Local Management Teams. Our station general managers have been with Beasley Broadcast Group for an average of approximately nine years, and a substantial majority operate under employment contracts. We believe that broadcasting is primarily a locally-based business and much of its success is based on the efforts of local management teams. We believe that our station managers have been able to recruit, develop, motivate and train superior management teams. We
offer competitive compensation packages with performance-based incentives for our key employees. In addition, we provided employees with opportunities for personal growth and advancement through extensive training, seminars and other educational initiatives.
. Enhance Broadcast Cash Flow of Underutilized AM Stations. We seek to selectively acquire and enhance the performance of major-market AM stations serving niche markets. To enhance broadcast cash flows at these radio stations, we sell blocks of time to providers of health, ethnic, religious and other specialty formats.
Acquisition Strategy
Since June 1996, we have acquired or agreed to acquire 33 radio stations. Our future acquisition strategy, which will focus on stations located in the 100 largest radio markets, is to:
. acquire additional radio stations in our current markets to further enhance our market position;
. acquire existing clusters in new markets or establish a presence in new markets where we believe we can build successful clusters over time;
. pursue swap opportunities with other radio station owners to build or enhance our market clusters; and
. selectively acquire large-market AM stations serving attractive demographic groups with specialty programming.
Internet Strategy
We have formed a division, Beasley Interactive, to create an Internet presence for Beasley Broadcast Group that will complement our existing radio business. We have also hired a team of creative directors to develop web page content for our radio stations' web sites that reflects each station's programming and brand. Our strategy is to create additional revenue streams from advertising, e-commerce and web page development and support for advertisers by capitalizing on the loyalty of our radio station listeners by persuading them to use our stations' web sites.
From time to time, we expect to make strategic investments in Internet companies that we believe are complementary to our radio broadcasting business and that are available on commercially attractive terms. On January 14, 2000, we purchased 600,000 shares of common stock of FindWhat.com, representing approximately 4.8% of the outstanding capital stock, in exchange for $3.0 million, reflected by a promissory note. The outstanding amount due under the promissory note may be offset by the purchase price of advertisements placed by FindWhat.com with our radio stations. We have recorded an unrealized loss on this investment. See "Management's Discussion and Analysis" for more information. Also, in December 1999, we entered into an agreement to purchase 750,000 shares of preferred stock of eTour, Inc., representing approximately 2.8% of the outstanding capital stock, in exchange for $3.0 million of advertising time from our radio stations.
Station Portfolio
Our stations are clustered in demographically attractive and growing markets located mostly in the eastern United States, including major markets such as Atlanta, Philadelphia, Boston, Miami-Ft. Lauderdale, Las Vegas, New Orleans, and West Palm Beach. The following table sets forth information about our portfolio and the markets where we operate. The column entitled Beasley Stations in the table includes radio stations in Augusta that we have agreed to acquire.
2000
Beasley
1995-1999 Beasley Market
2000 Radio Market 2000 Stations Revenue
Radio Market Average Annual Radio Market --------- -----------
Market Revenue Rank Revenue Growth Revenue Growth FM AM Share Rank
------ ------------ -------------- -------------- ---- ---- ----- ----
Atlanta, GA............. 7 16.7% 10.1% -- 2 -- --
Philadelphia, PA........ 9 10.5 6.6 2 2 6.1% 5
Boston, MA.............. 10 14.8 12.0 -- 1 -- --
Miami-Ft. Lauderdale,
FL..................... 12 11.1 8.6 2 3 18.1 2
Las Vegas, NV........... 39 17.3 13.2 3 -- 13.8 3
New Orleans, LA......... 40 9.4 9.1 2 1 12.5 3
West Palm Beach, FL..... 44 10.5 11.0 -- 1 -- --
Ft. Myers-Naples, FL.... 74 10.3 8.3 4 1 35.7 1
Greenville-New Bern-
Jacksonville, NC....... 86 11.5 11.9 5 1 58.4 1
Fayetteville, NC........ 91 13.8 4.0 4 2 61.7 1
Augusta, GA............. 112 4.9 1.5 6 2 42.1 1
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Total................. 28 16
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For this report, we derived:
. the 2000 radio market revenue rank from BIA Research, Inc.
. the 1995-1999 radio market average annual revenue growth from Duncan's Radio Market Guide (2000 ed.).
. the 2000 radio market revenue growth from Miller, Kaplan, Arase & Co. (December 2000 ed.). Because information was not available from Miller, Kaplan, Arase & Co. for the Atlanta, Boston, and West Palm Beach markets, for these markets we used Duncan's Radio Market Guide (2000 ed.).
. our audience share and audience rank in target demographic data from surveys of persons, listening Monday through Sunday, 6 a.m. to 12 midnight, in the indicated demographic, as set forth in the Fall 2000 radio market reports published by The Arbitron Ratings Company.
. our 2000 cluster market revenue rank and 2000 cluster market revenue share data from Miller, Kaplan, Arase & Co. (December 2000 ed.).
. the viable station data for each market from Duncan's Radio Market Guide (2000 ed.). Duncan's defines viable stations as stations that are active and viable competitors for advertising dollars in a market.
We present radio station and market data assuming the completion of our pending acquisitions. Further information about our radio stations on a market- by-market basis follows.
ATLANTA, GA
2000 Radio Market Revenue Rank: 7
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- --------- ----------- ------------------ ------------------
WAEC-
AM 2000 religious 35-64 -- --
WWWE-
AM 2000 Hispanic 35-64 -- --
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Market Overview
Atlanta is the seventh largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Atlanta market have grown from approximately $170.0 million in 1995 to approximately $315.2 million in 1999 at an average annual rate of 16.7%. Radio market revenue grew 10.1% in 2000, as compared to 1999. In 1999, there were 17 viable stations in the Atlanta market.
PHILADELPHIA, PA
2000 Radio Market Revenue Rank: 9
2000 Cluster Market Revenue Share: 6.1%
2000 Cluster Market Revenue Rank: 5
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- --------- ----------- ------------------ ------------------
WXTU-FM 1983 country 25-54 4.1% 10t
WPTP-FM 1997 80's 25-49 1.7 17
WWDB-AM 1986 financial 35-64 men * --
WTMR-AM 1998 religious 35-64 * --
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Market Overview
Philadelphia is the ninth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Philadelphia market have grown from approximately $192.2 million in 1995 to approximately $286.4 million in 1999 at an average annual rate of 10.5%. Radio market revenue grew 6.6% in 2000, as compared to 1999. In 1999, there were 19 viable stations in the Philadelphia market.
BOSTON, MA
2000 Radio Market Revenue Rank: 10
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- -------- ----------- ------------------ ------------------
WRCA-AM 2000 Hispanic 25-54 -- --
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Market Overview
Boston is the tenth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Boston market have grown from approximately $171.0 million in 1995 to approximately $296.7 million in 1999 at an average annual rate of 14.8%. Radio market revenue grew 12.0% in 2000, as compared to 1999. In 1999, there were 18.5 viable stations in the Boston market.
MIAMI-FT. LAUDERDALE, FL
2000 Radio Market Revenue Rank: 12
2000 Cluster Market Share: 18.1%
2000 Cluster Market Revenue Rank: 2
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ----------- ----------- ------------------ ------------------
WPOW-FM 1986 dance CHR 18-34 10.9% 2
WQAM-AM 1996 sports/talk 25-54 men 4.4 5t
WKIS-FM 1996 country 25-54 2.9 15
WWNN-AM 2000 health 35+ -- --
WHSR-AM 2000 foreign 25-54 -- --
language
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Market Overview
Miami-Ft. Lauderdale is the twelfth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Miami- Ft. Lauderdale market have grown from approximately $154.5 million in 1995 to approximately $235.1 million in 1999 at an average annual rate of 11.1%. Radio market revenue grew 8.6% in 2000, as compared to 1999. In 1999, there were 24.5 viable stations in the Miami-Ft. Lauderdale market.
LAS VEGAS, NV
2000 Radio Market Revenue Rank: 39
2000 Cluster Market Share: 13.8%
2000 Cluster Market Revenue Rank: 3
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ------------ ----------- ------------------ ------------------
KJUL-FM 2001 nostalgia 35-64 6.5% 4
KKLZ-FM 2001 classic rock 25-54 men 4.4 9
KSTJ-FM 2001 80's 25-54 4.9 9t
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Market Overview
Las Vegas is the thirty-ninth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Las Vegas market have grown from approximately $38.0 million in 1995 to approximately $71.9 million in 1999 at an average annual rate of 17.3%. Radio market revenue grew 13.2% in 2000, as compared to 1999. In 1999, there were 19 viable stations in the Las Vegas market.
NEW ORLEANS, LA
2000 Radio Market Revenue Rank: 40
2000 Cluster Market Share: 12.5%
2000 Cluster Market Revenue Rank: 3
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ------------- ----------- ------------------ ------------------
WRNO-FM 2001 classic rock 25-54 men 7.7% 3t
KMEZ-FM 2001 urban/ oldies 25-54 6.3 5t
WBYU-AM 2001 nostalgia 25-54 * 25
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Market Overview
New Orleans is the fortieth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the New Orleans market have grown from approximately $41.6 million in 1995 to approximately $59.5 million in 1999 at an average annual rate of 9.4%. Radio market revenue grew 9.1% in 2000, as compared to 1999. In 1999, there were 14 viable stations in the New Orleans market.
WEST PALM BEACH, FL
2000 Radio Market Revenue Rank: 44
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- --------- ----------- ------------------ ------------------
WSBR-AM 2000 financial 35-64 men * 36t
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Market Overview
West Palm Beach is the forty-fourth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the West Palm Beach market have grown from approximately $33.7 million in 1995 to approximately $50.1 million in 1999 at an average annual rate of 10.5%. Radio market revenue grew 11.0% in 2000, as compared to 1999. In 1999, there were 13.5 viable stations in the West Palm Beach market.
FT. MYERS-NAPLES, FL
2000 Radio Market Revenue Rank: 74
2000 Cluster Market Revenue Share: 35.7%
2000 Cluster Market Revenue Rank: 1
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ---------------- ----------- ------------------ ------------------
WJBX-FM 1998 alternative rock 18-34 men 14.8% 1
WXKB-FM 1995 adult CHR 18-49 women 11.6 1
WRXK-FM 1986 classic rock 25-54 men 9.4 1
WJPT-FM 1998 nostalgia 55+ 8.1 2t
WWCN-AM 1987 sports/talk 25-54 men 1.4 21t
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Market Overview
Ft. Myers-Naples is the seventy-fourth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Ft. Myers-Naples market have grown from approximately $18.7 million in 1995 to approximately $27.6 million in 1999 at an average annual rate of 10.3%. Radio market revenue grew 8.3% in 2000, as compared to 1999. In 1999, there were 16.5 viable stations in the Ft. Myers-Naples market.
GREENVILLE-NEW BERN-JACKSONVILLE, NC
2000 Radio Market Revenue Rank: 86
2000 Cluster Market Revenue Share: 58.4%
2000 Cluster Market Revenue Rank: 1
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ------------------ ----------- ------------------ ------------------
WIKS-FM 1996 urban 25-54 11.8% 2
WSFL-FM 1991 classic rock 25-54 men 10.9 2t
WXNR-FM 1996 alternative rock 18-34 men 10.5 3t
WMGV-FM 1996 adult contemporary 25-54 women 10.0 3
WNCT-FM 1996 oldies 35-64 5.3 5
WNCT-AM 1996 Hispanic brokered 25-54 -- --
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Market Overview
Greenville-New Bern-Jacksonville is the eighty-sixth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Greenville-New Bern-Jacksonville market have grown from approximately $14.6 million in 1995 to approximately $22.5 million in 1999 at an average annual rate of 11.5%. Radio market revenue grew 11.9% in 2000, as compared to 1999. In 1999, there were 11 viable stations in the Greenville-New Bern-Jacksonville market.
FAYETTEVILLE, NC
2000 Radio Market Revenue Rank: 91
2000 Cluster Market Revenue Share: 61.7%
2000 Cluster Market Revenue Rank: 1
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ------------ ----------- ------------------ ------------------
WZFX-FM 1997 urban 18-49 16.2% 1
WKML-FM 1983 country 25-54 14.5 1
WFLB-FM 1996 oldies 35-64 8.4 4
urban/adult
WUKS-FM 1997 contemporary 25-54 7.2 5
WYRU-AM 1997 religious 35-64 1.2 18t
WAZZ-AM 1997 nostalgia 55+ * 35t
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Market Overview
Fayetteville is the ninety-first largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Fayetteville market have grown from approximately $11.3 million in 1995 to approximately $18.9 million in 1999 at an average annual rate of 13.8%. Radio market revenue grew 4.0% in 2000, as compared to 1999. In 1999, there were 10 viable stations in the Fayetteville market.
AUGUSTA, GA
2000 Radio Market Revenue Rank: 112
2000 Cluster Market Revenue Share: 42.1%
2000 Cluster Market Revenue Rank: 1
Target Audience Share in Audience Rank in
Station Call Letters Year Acquired Format Demographic Target Demographic Target Demographic
-------------------- ------------- ------------------ ----------- ------------------ ------------------
WGAC-AM 1993 news/talk/sports 35-64 13.0% 1
WKXC-FM pending country 25-54 11.1 1
WAJY-FM 1994 nostalgia 55+ 9.6 3
WCHZ-FM 1997 alternative rock 18-34 men 9.1 4t
WGOR-FM 1992 oldies 35-64 6.1 4
WSLT-FM pending adult contemporary 25-54 4.8 9t
WRDW-AM 2000 sports/talk 25-54 men 1.8 14t
WRFN-FM 2000 sports/talk 25-54 men -- --
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Market Overview
Augusta is the one hundred twelfth largest radio market in the United States based on 2000 radio market revenue. Radio market revenues in the Augusta market have grown from approximately $13.9 million in 1995 to approximately $16.8 million in 1999 at an average annual rate of 4.9%. Radio market revenue grew 1.5% in 2000, as compared to 1999. In 1999, there were 14.5 viable stations in the Augusta market.
Competition; Changes in Broadcasting Industry
The radio broadcasting industry is highly competitive. The success of each of our stations depends largely upon its audience ratings and its share of the overall advertising revenue within its market. Our stations compete for listeners and advertising revenue directly with other radio stations within their respective markets. Radio stations compete for listeners primarily on the basis of program content that appeals to a particular demographic group. By building a strong listener base consisting of a specific demographic group in each of our markets, we are able to attract advertisers seeking to reach those listeners.
The following are some of the factors that are important to a radio station's competitive position:
. management experience;
. the station's local audience rank in its market;
. transmitter power;
. assigned frequency;
. audience characteristics;
. local program acceptance; and
. the number and characteristics of other radio stations and other advertising media in the market area.
In addition, we attempt to improve our competitive position with promotional campaigns aimed at the demographic groups targeted by our stations and by sales efforts designed to attract advertisers.
Despite the competitiveness within the radio broadcasting industry, some barriers to entry exist. The operation of a radio broadcast station requires a license from the FCC. The number of radio stations that can operate in a given market is limited by strict AM interference criteria and availability of FM radio frequencies allotted by the FCC to communities in that market. The number of stations that a single entity may operate in a market is further limited by the FCC's multiple ownership rules that regulate the number of stations serving the same area that may be owned or controlled by a single entity.
Our stations also compete for audiences and advertising revenues within their respective markets directly with other radio stations, as well as with other media such as newspapers, magazines, network and cable television, outdoor advertising and direct mail. In addition, the radio broadcasting industry is subject to competition from new media technologies that are being developed or introduced such as:
. satellite delivered digital audio radio service, which could result in the near term introduction of new subscriber-based satellite radio services with numerous channels and sound quality equivalent to that of compact discs;
. audio programming by cable systems, direct broadcast satellite systems, internet content providers, personal communications services and other digital audio broadcast formats;
. in-band on-channel digital radio, which could provide multi-channel, multi-format digital radio services in the same bandwidth currently occupied by traditional AM and FM radio services; and
. low power FM radio, which could result in additional FM radio broadcast outlets that are designed to serve localized areas.
The radio broadcasting industry historically has grown despite the introduction of new technologies for the delivery of entertainment and information, such as television broadcasting, cable television, audio tapes and compact discs. A growing population and greater availability of radios, particularly car and portable radios, have contributed to this growth. We cannot assure you, however, that this historical growth will continue or that the development or introduction in the future of any new media technology will not have an adverse effect on the radio broadcasting industry.
The FCC has adopted licensing and operating rules for satellite delivered audio and in April 1997 awarded two licenses for this service. Satellite delivered audio may provide a medium for the delivery by satellite or terrestrial means of multiple new audio programming formats to local and/ or national audiences. Digital technology also may be used in the future by terrestrial radio broadcast stations either on existing or alternate broadcasting frequencies, and the FCC has stated that it will consider making changes to its rules to permit AM and FM radio stations to offer digital sound following industry analysis of technical standards. In addition, the FCC has authorized an additional 100 kHz of bandwidth for the AM band and has allotted frequencies in this new band to certain existing AM station licensees that applied for migration to the expanded AM band, subject to the requirement that at the end of a transition period, those licensees return to the FCC either the license for their existing AM band station or the license for the expanded AM band station.
We cannot predict what other matters might be considered in the future by the FCC, nor can we assess in advance what impact, if any, the implementation of any of these proposals or changes might have on our business.
We employ a number of on-air personalities and generally enter into employment agreements with these personalities to protect our interests in those relationships that we believe to be valuable. The loss of some of these personalities could result in a short-term loss of audience share, but we do not believe that the loss would have a material adverse effect on our business.
Federal Regulation Of Radio Broadcasting
The radio broadcasting industry is subject to extensive and changing regulation of, among other things, program content, advertising content, technical operations and business and employment practices. The ownership, operation and sale of radio stations are subject to the jurisdiction of the FCC. Among other things, the FCC:
. assigns frequency bands for broadcasting;
. determines the particular frequencies, locations, operating powers and other technical parameters of stations;
. issues, renews, revokes, conditions and modifies station licenses;
. determines whether to approve changes in ownership or control of station licenses;
. regulates equipment used by stations; and
. adopts and implements regulations and policies that directly affect the ownership, operation and employment practices of stations.
The FCC has the power to impose penalties for violations of its rules or the Communications Act, including the imposition of monetary forfeitures, the issuance of short-term licenses, the imposition of a condition on the renewal of a license, non-renewal of licenses and the revocation of operating authority.
The following is a brief summary of some provisions of the Communications Act and of specific FCC regulations and policies. The summary is not a comprehensive listing of all of the regulations and policies affecting radio stations. For further information concerning the nature and extent of federal regulation of radio stations, you should refer to the Communications Act, FCC rules and FCC public notices and rulings.
FCC Licenses. Radio stations operate pursuant to renewable broadcasting licenses that are ordinarily granted by the FCC for maximum terms of eight years. A station may continue to operate beyond the expiration date of its license if a timely filed license renewal application is pending. During the periods when renewal applications are pending, petitions to deny license renewals can be filed by interested parties, including members of the public. The FCC is required to hold hearings on a station's renewal application if a substantial or material question of fact exists as to whether the station has served the public interest, convenience and necessity. If, as a result of an evidentiary hearing, the FCC determines that the licensee has failed to meet certain requirements and that no mitigating factors justify the imposition of a lesser sanction, then the FCC may deny a license renewal application. Historically, FCC licenses have generally been renewed. We have no reason to believe that our licenses will not be renewed in the ordinary course, although there can be no assurance to that effect. The non-renewal of one or more of our licenses could have a material adverse effect on our business.
The FCC classifies each AM and FM station. An AM station operates on either a clear channel, regional channel or local channel. A clear channel is one on which AM stations are assigned to serve wide areas. Clear channel AM stations are classified as either: Class A stations, which operate on an unlimited time basis and are designated to render primary and secondary service over an extended area; Class B stations, which operate on an unlimited time basis and are designed to render service only over a primary service area; or Class D AM
stations, which operate either during daytime hours only, during limited times only or on an unlimited time basis with low nighttime power. A regional channel is one on which Class B and Class D AM stations may operate and serve primarily a principal center of population and the rural areas contiguous to it. A local channel is one on which AM stations operate on an unlimited time basis and serve primarily a community and the immediately contiguous suburban and rural areas. Class C AM stations operate on a local channel and are designed to render service only over a primary service area that may be reduced as a consequence of interference.
The minimum and maximum facilities requirements for an FM station are determined by its class. FM class designations depend upon the geographic zone in which the transmitter of the FM station is located. In general, commercial FM stations are classified as follows, in order of increasing power and antenna height: Class A, B1, C3, B, C2, C1, C0 and C. The FCC recently adopted a new rule that subjects Class C FM stations that do not satisfy a certain antenna height requirement to an involuntary downgrade in class to Class C0 under certain circumstances.
The following table sets forth the metropolitan market served, call letters, FCC license classification, frequency, power and FCC license expiration date of each of the stations that we will own or operate upon the purchase of radio stations in Augusta. In many cases, our licenses are held by wholly-owned subsidiaries. Pursuant to FCC rules and regulations, many AM radio stations are licensed to operate at a reduced power during the nighttime broadcasting hours, which results in reducing the radio station's coverage during the nighttime hours of operation. Both power ratings are shown, where applicable. For FM stations, the maximum effective radiated power in the main lobe is given.
Expiration
Date of
FCC Power in FCC
Market Station Class Frequency Kilowatts License
------ ------- ----- --------- --------- ----------
Atlanta, GA............. WAEC-AM B 860 kHz 5 kW day/.5 kW night 04/01/2004
WWWE-AM D 1100 kHz 5 kW day 04/01/2004
Philadelphia, PA........ WXTU-FM B 92.5 MHz 15.5 kW 08/01/2006
WPTP-FM B 96.5 MHz 17.0 kW 08/01/2006
WTMR-AM B 800 kHz 5 kW day/.5 kW night 06/01/2006
WWDB-AM D 860 kHz 10 kW day 08/01/2006
Boston, MA.............. WRCA-AM B 1330 kHz 5 kW 04/01/2006
Miami-Ft. Lauderdale,
FL..................... WQAM-AM B 560 kHz 5 kW day/1 kW night 02/01/2004
WPOW-FM C 96.5 MHz 100 kW 02/01/2004
WKIS-FM C 99.9 MHz 100 kW 02/01/2004
WWNN-AM B 1470 kHz 50 kW day/2.5 kW 02/01/2004
WHSR-AM B 980 kHz 5 kW day/1 kW night 02/01/2004
Las Vegas, NV........... KKLZ-FM C 96.3 MHz 100 kW 10/01/2005
KJUL-FM C 104.3 MHz 24.5 kW 10/01/2005
KSTJ-FM C2 105.5 MHz 3.7 kW 10/01/2005
New Orleans, LA......... WRNO-FM C 99.5 MHz 100 kW 06/01/2004
KMEZ-FM C3 102.9 MHz 4.7 kW 06/01/2004
WBYU-AM C 1450 kHz 1 kW 06/01/2004
West Palm Beach, FL..... WSBR-AM B 740 kHz 2.5 kW day/.94 kW night 02/01/2004
Ft. Myers-Naples, FL.... WXKB-FM C1 103.9 MHz 100 kW 02/01/2004
WRXK-FM C 96.1 MHz 100 kW 02/01/2004
WJBX-FM C2 99.3 MHz 50 kW 02/01/2004
WJST-FM A 106.3 MHz 6 kW 02/01/2004
WWCN-AM B 770 kHz 10 kW day/1 kW night 02/01/2004
Greenville-New Bern-
Jacksonsville, NC...... WSFL-FM C1 106.5 MHz 100 kW 12/01/2003
WIKS-FM C1 101.9 MHz 100 kW 12/01/2003
WNCT-AM B 1070 kHz 10 kW day/night 12/01/2003
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Expiration
Date of
FCC Power in FCC
Market Station Class Frequency Kilowatts License
------ ------- ----- --------- --------- ----------
WNCT-FM C 107.9 MHz 100 kW 12/01/2003
WXNR-FM C2 99.5 MHz 16.5 kW 12/01/2003
WMGV-FM C1 103.3 MHz 100 kW 12/01/2003
Fayetteville, NC...... WZFX-FM C1 99.1 MHz 100 kW 12/01/2003
WKML-FM C 95.7 MHz 100 kW 12/01/2003
WFLB-FM C 96.5 MHz 100 kW 12/01/2003
WUKS-FM C3 107.7 MHz 5.2 kW 12/01/2003
WAZZ-AM C 1490 kHz 1 kW day/night 12/01/2003
WYRU-AM B 1160 kHz 5 kW day/.25 kW night 12/01/2003
Augusta, GA........... WGAC-AM B 580 kHz 5 kW day/1 kW night 04/01/2004
WGOR-FM C3 93.9 MHz 13 kW 04/01/2004
WCHZ-FM C3 95.1 MHz 5.7 kW 04/01/2004
WAJY-FM A 102.7 MHz 3 kW 12/01/2003
WRFN-FM A 93.1 MHz 4.1 kW 04/01/2004
WRDW-AM B 1480 kHz 5 kW day/night 04/01/2004
WKXC-FM C2 99.5 MHz 24 kW 12/01/2003
WSLT-FM A 98.3 MHz 2.8 kW 12/01/2003
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Transfers or Assignment of License. The Communications Act prohibits the assignment of broadcast licenses or the transfer of control of a broadcast licensee without the prior approval of the FCC. In determining whether to grant such approval, the FCC considers a number of factors pertaining to the licensee and proposed licensee, including:
. compliance with the various rules limiting common ownership of media properties in a given market;
. the character of the licensee and those persons holding attributable interests in the licensee; and
. compliance with the Communications Act's limitations on alien ownership as well as compliance with other FCC regulations and policies.
To obtain FCC consent to assign or transfer control of a broadcast license, appropriate applications must be filed with the FCC. If the application involves a substantial change in ownership or control, the application must be placed on public notice for not less than 30 days during which time petitions to deny or other objections against the application may be filed by interested parties, including members of the public. These types of petitions are filed from time to time with respect to proposed acquisitions. Informal objections to assignment and transfer of control applications may be filed at any time up until the FCC acts on the application. If the application does not involve a substantial change in ownership or control, it is a pro forma application. The pro forma application is nevertheless subject to having informal objections filed against it. When passing on an assignment or transfer application, the FCC is prohibited from considering whether the public interest might be served by an assignment or transfer of the broadcast license to any party other than the assignee or transferee specified in the application. If the FCC grants an assignment or transfer application, interested parties have 30 days from public notice of the grant to seek reconsideration of that grant. The FCC usually has an additional ten days to set aside the grant on its own motion.
Multiple Ownership Rules. The Communications Act and FCC rules impose specific limits on the number of commercial radio stations an entity can own in a single market. These rules may preclude us from acquiring certain stations we might otherwise seek to acquire. The rules also effectively prevent us from selling stations in a market to a buyer that has reached its ownership limit in the market unless that buyer divests other stations. The local radio ownership rules are as follows:
. in markets with 45 or more commercial radio stations, ownership is limited to eight commercial stations, no more than five of which can be either AM or FM;
. in markets with 30 to 44 commercial radio stations, ownership is limited to seven commercial stations, no more than four of which can be either AM or FM;
. in markets with 15 to 29 commercial radio stations, ownership is limited to six commercial stations, no more than four of which can be either AM or FM; and
. in markets with 14 or fewer commercial radio stations, ownership is limited to five commercial stations or no more than 50% of the market's total, whichever is lower, and no more than three of which can be either AM or FM.
The FCC is also reportedly considering proposing a policy that would give special review to a proposed transaction if it would enable a single owner to attain a high degree of revenue concentration in a market. In connection with this, the FCC has invited comment on the impact of concentration in public notices concerning proposed transactions, and has delayed or refused its consent in some cases because of revenue concentration.
The FCC has revised its radio/television cross-ownership rule to allow for greater common ownership of television and radio stations. The revised radio/television cross-ownership rule permits a single owner to own up to two television stations, consistent with the FCC's rules on common ownership of television stations, together with one radio station in all markets. In addition, an owner will be permitted to own additional radio stations, not to exceed the local ownership limits for the market, as follows:
. in markets where 20 media voices will remain after the consummation of the proposed transaction, an owner may own an additional 5 radio stations, or, if the owner only has one television station, an additional 6 radio stations; and
. in markets where 10 media voices will remain after the consummation of the proposed transaction, an owner may own an additional 3 radio stations.
A media voice includes each independently-owned, full power television and radio station and each daily newspaper, plus one voice for all cable television systems operating in the market.
In addition to the limits on the number of radio stations and radio/television combinations that a single owner may own, the FCC's broadcast/newspaper cross-ownership rule prohibits the same owner from owning a broadcast station and a daily newspaper in the same geographic market.
The FCC generally applies its ownership limits to attributable interests held by an individual, corporation, partnership or other association. In the case of corporations controlling broadcast licenses, the interests of officers, directors and those who, directly or indirectly, have the right to vote 5% or more of the corporation's voting stock are generally attributable. In addition, certain passive investors are attributable if they hold 20% or more of the corporation's voting stock. The FCC recently revoked a rule that formerly provided that interests of minority shareholders in a corporation were not attributable if a single entity or individual held 50% or more of that corporation's voting stock. In revoking the rule, the FCC has, however, grandfathered as non-attributable those minority stock interests that were held as of the date of the FCC's order.
The FCC has adopted a rule, known as the equity-debt-plus rule, that causes certain creditors or investors to be attributable owners of a station, regardless of whether there is a single majority stockholder. Under this new rule, a major programming supplier or a same-market owner will be an attributable owner of a station if the supplier or owner holds debt or equity, or both, in the station that is greater than 33% of the value of the station's total debt plus equity. A major programming supplier includes any programming supplier that provides more than 15% of the station's weekly programming hours. A same-market owner includes any attributable owner of a media company, including broadcast stations, cable television and newspapers, located in the same market as the station, but only if the owner is attributable under an FCC attribution rule other than the equity-debt-plus rule. The attribution rules limit the number of radio stations we may acquire or own in any market.
Alien Ownership Rules. The Communications Act prohibits the issuance or holding of broadcast licenses by persons who are not U.S. citizens, whom the FCC rules refer to as "aliens," including any corporation if more than 20% of its capital stock is owned or voted by aliens. In addition, the FCC may prohibit any corporation from holding a broadcast license if the corporation is controlled by any other
corporation of which more than 25% of the capital stock is owned of record or voted by aliens, if the FCC finds that the prohibition is in the public interest. Our certificate of incorporation prohibits the ownership, voting and transfer of our capital stock in violation of the FCC restrictions, and prohibits the issuance of capital stock or the voting rights such capital stock represents to or for the account of aliens or corporations otherwise subject to domination or control by aliens in excess of the FCC limits. The certificate of incorporation authorizes our board of directors to enforce these prohibitions. For example, the certificate of incorporation provides for the redemption of shares of our capital stock by action of the board of directors to the extent necessary to comply with these alien ownership restrictions.
Time Brokerage Agreements. Over the past few years, a number of radio stations have entered into what have commonly been referred to as time brokerage agreements. While these agreements may take varying forms, under a typical time brokerage agreement, separately owned and licensed radio stations agree to enter into cooperative arrangements of varying sorts, subject to compliance with the requirements of antitrust laws and with FCC's rules and policies. Under these arrangements, separately-owned stations could agree to function cooperatively in programming, advertising sales and similar matters, subject to the requirement that the licensee of each station maintain independent control over the programming and operations of its own station. One typical type of time brokerage agreement is a programming agreement between two separately-owned radio stations serving a common service area, whereby the licensee of one station provides substantial portions of the broadcast programming for airing on the other licensee's station, subject to ultimate editorial and other controls being exercised by the latter licensee, and sells advertising time during those program segments.
The FCC's rules provide that a radio station that brokers more than 15% of the weekly broadcast time on another station serving the same market will be considered to have an attributable ownership interest in the brokered station for purposes of FCC's local radio ownership limits. As a result, in a market where we own a radio station, we would not be permitted to enter into a time brokerage agreement with another radio station in the same market if we could not own the brokered station under the multiple ownership rules, unless our programming on the brokered station constituted 15% or less of the brokered station's programming time on a weekly basis. FCC rules also prohibit a broadcast station from duplicating more than 25% of its programming on another station in the same broadcast service, that is AM-AM or FM-FM through a time brokerage agreement where the brokered and brokering stations which it owns or programs serve substantially the same area.
Programming and Operations. The Communications Act requires broadcasters to serve the public interest. The FCC gradually has relaxed or eliminated many of the more formalized procedures it had developed in the past to promote the broadcast of certain types of programming responsive to the needs of a station's community of license. A licensee continues to be required, however, to present programming that is responsive to issues of the station's community of license and to maintain records demonstrating this responsiveness. Complaints from listeners concerning a station's programming often will be considered by the FCC when it evaluates renewal applications of a licensee, although listener complaints may be filed at any time, are required to be maintained in the station's public file and generally may be considered by the FCC at any time. Stations also must pay regulatory and application fees and follow various rules promulgated under the Communications Act. Those rules regulate, among other things, political advertising, sponsorship identifications, the advertisement of contests and lotteries, obscene and indecent broadcasts and technical operations, including limits on human exposure to radio frequency radiation.
On January 20, 2000, the FCC adopted new rules prohibiting employment discrimination by broadcast stations on the basis of race, religion, color, national origin, and gender; and requiring broadcasters to implement programs to promote equal employment opportunities at their stations. The rules generally require broadcast stations to disseminate information about job openings widely so that all qualified applicants, including minorities and women, have an adequate opportunity to compete for the job. Broadcasters may fulfill this requirement by sending the station's job vacancy information to organizations that request it, participating in community outreach programs, or designing an alternative recruitment program. Broadcasters with five or
more full-time employees must place in their public files annually a report detailing their recruitment efforts and must file a statement with the FCC certifying compliance with the rules every two years. Broadcasters with ten or more full-time employees must file their annual reports with the FCC midway through their license term. Broadcasters also must file employment information with the FCC annually for statistical purposes. The FCC recently suspended the effectiveness of its EEO rules in response to a January 16, 2001 decision of the Court of Appeals for the District of Columbia Circuit, which vacated the FCC's rules.
The FCC recently issued a decision holding that a broadcast station may not deny a candidate for federal political office a request for broadcast advertising time solely on the grounds that the amount of time requested is not the standard length of time which the station offers to its commercial advertisers. This decision is currently being reconsidered by the FCC. The effect that this FCC decision will have on our programming and commercial advertising operations is uncertain.
Proposed and Recent Changes. Congress and the FCC may in the future consider and adopt new laws, regulations and policies regarding a wide variety of matters that could affect, directly or indirectly, the operation, ownership and profitability of our radio stations, including the loss of audience share and advertising revenues for our radio stations, and an inability to acquire additional radio stations or to finance those acquisitions. Such matters may include:
. changes in the FCC's cross-interest, multiple ownership and attribution policies including the definition of the local market for multiple ownership purposes;
. regulatory fees, spectrum use fees or other fees on FCC licenses;
. streaming fees for radio;
. foreign ownership of broadcast licenses;
. restatement in revised form of FCC's equal employment opportunity rules and revisions to the FCC's rules relating to political broadcasting, including free air time to candidates;
. technical and frequency allocation matters; and
. proposals to restrict or prohibit the advertising of beer, wine and other alcoholic beverages on radio.
The FCC currently is considering standards for evaluating, authorizing, and implementing terrestrial digital audio broadcasting technology, including In- Band On-Channel(TM) technology for FM radio stations. Digital audio broadcasting's advantages over traditional analog broadcasting technology include improved sound quality and the ability to offer a greater variety of auxiliary services. In-Band On-Channel technology would permit an FM station to transmit radio programming in both analog and digital formats, or in digital only formats, using the bandwidth that the radio station is currently licensed to use. It is unclear what regulations the FCC will adopt regarding Digital Audio Broadcasting or In-Band On-Channel technology and what effect such regulations would have on our business or the operations of its radio stations.
On January 20, 2000, the FCC voted to adopt rules creating a new low power FM radio service. The new low power stations will operate at a maximum power of between 10 and 100 watts in the existing FM commercial and non-commercial band. Low power stations may be used by governmental and non-profit organizations to provide noncommercial educational programming or public safety and transportation radio services. No existing broadcaster or other media entity, including us, will be permitted to have an ownership interest or enter into any program or operating agreement with any low power FM station. During the first two years of the new service, applicants must be based in the area that they propose to serve. Applicants will not be permitted to own more than one station nationwide during the initial two year period. After the initial two year period, entities will be allowed to own up to five stations nationwide, and after three years, the limit will be raised to ten stations nationwide. A single person or entity may not own two low power stations whose transmitters are less than seven miles from each other. The authorizations for the new stations will not be transferable. The FCC has begun to accept applications for new low power FM stations.
At this time, it is difficult to assess the competitive impact of these new stations. The new low power stations must comply with certain technical requirements aimed at protecting existing FM radio stations from interference, although we cannot be certain of the level of interference that low power stations will cause after they begin operating. Moreover, if low power FM stations are licensed in the markets in which we operate our stations, the low power stations may compete for listeners and advertisers. The low power stations may also limit our ability to obtain new license or to modify our existing facilities. Any of these events may materially and adversely impact our operating performance.
Finally, the FCC has adopted procedures for the auction of broadcast spectrum in circumstances where two or more parties have filed for new or major change applications which are mutually exclusive. Such procedures may limit our efforts to modify or expand the broadcast signals of our stations.
We cannot predict what other matters might be considered in the future by the FCC or Congress, nor can we judge in advance what impact, if any, the implementation of any of these proposals or changes might have on our business.
Federal Antitrust Laws. The agencies responsible for enforcing the federal antitrust laws, the Federal Trade Commission or the Department of Justice, may investigate certain acquisitions. We cannot predict the outcome of any specific FTC or Department of Justice investigation. Any decision by the FTC or the Department of Justice to challenge a proposed acquisition could affect our ability to consummate the acquisition or to consummate it on the proposed terms.
For an acquisition meeting certain size thresholds, the Hart-Scott-Rodino Act requires the parties to file Notification and Report Forms concerning antitrust issues with the FTC and the Department of Justice and to observe specified waiting period requirements before consummating the acquisition. If the investigating agency raises substantive issues in connection with a proposed transaction, then the parties frequently engage in lengthy discussions or negotiations with the investigating agency concerning possible means of addressing those issues, including restructuring the proposed acquisition or divesting assets. In addition, the investigating agency could file suit in federal court to enjoin the acquisition or to require the divestiture of assets, among other remedies. Acquisitions that are not required to be reported under the Hart-Scott-Rodino Act may be investigated by the FTC or the Department of Justice under the antitrust laws before or after consummation. In addition, private parties may under certain circumstances bring legal action to challenge an acquisition under the antitrust laws.
As part of its increased scrutiny of radio station acquisitions, the Department of Justice has stated publicly that it believes that local marketing agreements, joint sales agreements, time brokerage agreements and other similar agreements customarily entered into in connection with radio station transfers could violate the Hart-Scott-Rodino Act if such agreements take effect prior to the expiration of the waiting period under the Hart-Scott-Rodino Act. Furthermore, the Department of Justice has noted that joint sales agreements may raise antitrust concerns under Section 1 of the Sherman Act and has challenged joint sales agreements in certain locations. The Department of Justice also has stated publicly that it has established certain revenue and audience share concentration benchmarks with respect to radio station acquisitions, above which a transaction may receive additional antitrust scrutiny. However, to date, the Department of Justice has also investigated transactions that do not meet or exceed these benchmarks and has cleared transactions that do exceed these benchmarks.
Employees
On December 31, 2000, we had a staff of 459 full-time employees and 163 part-time employees. We are a party to a collective bargaining agreement with the American Federation of Television and Radio Artists. This agreement applies only to some employees at WXTU-FM in Philadelphia. The collective bargaining agreement expired on March 31, 2000; however we continue to operate under the same provisions as we renegotiate the agreement. We believe that our relations with our employees are good.
Environmental
As the owner, lessee or operator of various real properties and facilities, we are subject to various federal, state and local environmental laws and regulations. Historically, compliance with these laws and regulations has not had a material adverse effect on our business. There can be no assurance, however, that compliance with existing or new environmental laws and regulations will not require us to make significant expenditures of funds.
ITEM 2. PROPERTIES
The types of facilities required to support each of our radio stations include offices, studios and transmitter and antenna sites. We typically lease our studio and office space with lease terms that expire in six months to ten years, although we do own some of our facilities. Our principal executive offices are located at 3033 Riviera Drive, Suite 200, Naples, Florida 34103. We lease that building from an affiliated company. We currently have a month to month lease and we pay approximately $7,400 per month. We lease a majority of our main transmitter and antenna sites from related parties. The transmitter and antenna site for each station is generally located so as to provide maximum market coverage, consistent with the station's FCC license.
No one facility is material to us. We believe that our facilities are generally in good condition and suitable for our operations. However, we continually look for opportunities to upgrade our facilities and may do so in the future. Substantially all of our properties and equipment serve as collateral for our obligations under our credit facility.
ITEM 3. LEGAL PROCEEDINGS
We currently and from time to time are involved in litigation incidental to the conduct of our business, but we are not a party to any lawsuit or proceeding which, in the opinion of management, is likely to have a material adverse effect on us.
On December 29, 1998, we filed a lawsuit in the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade County, against the Florida Marlins Inc., Florida Marlins Baseball Team, Ltd., and Front Row Communications for breach of contract and other related claims. The lawsuit is based on actions taken by the Florida Marlins major league baseball team to trade or release key players of the Marlins after the 1997 season, thereby transforming the Marlins into a non- competitive team. On January 14, 2000, the court dismissed the Marlins' motion for summary judgment. On May 22, 1999, the Marlins countersued for breach of contract. On January 10, 2001, we settled both lawsuits with the other parties with no material impact on the financial statements.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth quarter of the fiscal year covered by this report.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Beasley Broadcast Group has two authorized and outstanding classes of equity securities: Class A common stock, $.001 par value, and Class B commons stock, $.001 par value. Class A common stock began trading on Nasdaq's National Market System on February 11, 2000. There is no established public trading market for our Class B common stock.
Beasley Broadcast Group did not pay any dividends in the year 2000. Quarterly high and low stock prices are shown below:
High Low
------ -----
February 11--March 31, 2000..................................... 14.125 9.250
Second Quarter.................................................. 14.750 7.750
Third Quarter................................................... 15.813 9.688
Fourth Quarter.................................................. 9.953 7.563
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Before our reorganization, the various subchapter S corporations and partnerships comprising Beasley Broadcast Group have occasionally made cash distributions to their equity holders. As a public company, we expect to retain earnings, if any, for use in the operation and expansion of our business. We do not anticipate paying any cash dividends in the foreseeable future. Additionally, our credit facility prohibits us from paying cash dividends and restricts our ability to make other distributions with respect to our capital stock.
To effect our reorganization and pursuant to the Beasley Broadcast Group, Inc. Contribution Agreement dated as of November 23, 1999, we agreed to issue shares of our Class A common stock to Reed Miami Holdings, Inc. and J. Daniel Highsmith in exchange for all of their interests held in Beasley-Reed Acquisition Partnership and Beasley Broadcasting of Eastern North Carolina, Incorporated. Under this agreement, Reed Miami Holdings, Inc. and Mr. Highsmith received, on February 11, 2000, a total of 402,068 shares of Class A common stock, which is the number of shares having the value of their pre-offering interest in the entities that will become Beasley Broadcast Group, Inc. Therefore, based on the initial public offering price of $15.50, Beasley Broadcast Group received approximately $6.2 million of value for the interests in Beasley-Reed Acquisition Partnership and Beasley Broadcasting of Eastern North Carolina, Incorporated in exchange for approximately $6.2 million of shares of its Class A common stock. These transactions were effected without registration under the Securities Act in reliance upon the exemptions from registration contained in Section 4(2) of the Securities Act. Section 4(2) exempts transactions by an issuer not involving a public offering from the provisions of Securities Act Section 5. We offered Class A common stock to these stockholders, each of whom is an accredited investor under Rule 501 under the Securities Act and each of whom is actively involved in the management of radio stations owned by the registrant, on a private basis not involving a public offering.
Additionally, pursuant to the Beasley Broadcast Group, Inc. Contribution Agreement dated as of November 23, 1999, we also agreed to issue shares of our Class B common stock to George G. Beasley, members of his immediate family and affiliated trusts in exchange for all the interests held by these persons in the companies we now hold. Under this agreement, the Beasley family members and affiliated trusts received on February 11, 2000 a total of 17,021,373 shares of Class B common stock, which is the number of shares having the value of their pre-offering interest in the entities that will become Beasley Broadcast Group, Inc. Therefore, based on the initial public offering price of $15.50 for Class A common stock, Beasley Broadcast Group received approximately $263.8 million of value for the interests in the entities that became Beasley Broadcast Group in exchange for approximately $263.8 million of shares of Class B common stock. These transactions were effected without registration under the Securities Act in reliance upon the exemptions from registration contained in Section 4(2) of the Securities Act. Section 4(2) exempts transactions by an issuer not involving a public offering from the provisions of Securities Act Section 5. We offered shares of its Class B common stock to George G. Beasley, members of his immediate family and affiliated entities, on a private basis not involving a public offering.
ITEM 6. SELECTED FINANCIAL DATA
We have derived the selected financial data shown below for the years ended December 31, 1996 and 1997 from our audited combined financial statements, which are not included in this report. We have derived the selected financial data shown below for the years ended December 31, 1998 and 1999 from our audited combined financial statements included elsewhere in this report. We have derived the selected financial data shown below for the year ended December 31, 2000 from our audited consolidated financial statements included elsewhere in this report.
As you review the information contained in the following table and throughout this report, you should note the following:
. During the periods presented we operated as a series of partnerships and subchapter S corporations under the Internal Revenue Code. Accordingly, we were not liable for federal and some state and local corporate income taxes, as we would have been if we had been treated as a subchapter C corporation. During these periods, our stockholders included our taxable income or loss in their federal and applicable state and local income tax returns. The pro forma amounts shown in the table reflect provisions for federal, state and local income taxes, applied to income (loss) before pro forma income taxes, as if we had been taxed as a subchapter C corporation. On February 11, 2000, our subchapter S status terminated. For a more detailed description of our corporate reorganization, see "Business--Initial Public Offering and Corporate Reorganization."
. For purposes of our historical financial statements, the term pro forma refers to the adjustments necessary to reflect our status as a subchapter C corporation for income tax purposes rather than a series of subchapter S corporations and partnerships, distributions to equity holders for income taxes on income of entities comprising Beasley Broadcast Group prior to the reorganization, the distribution of untaxed retained income and subsequent re-contribution of the same amounts as additional paid-in capital and the fair value adjustment necessary to record the acquisition of minority shareholder interest using the purchase method of accounting.
. Broadcast cash flow consists of operating income (loss) before corporate general and administrative expenses, equity appreciation rights, format change expenses, depreciation and amortization, and impairment loss on long-lived assets. For the periods shown in the following table, broadcast cash flow is unaffected by local management and time brokerage agreements of $1,075,000 for the fiscal year ended December 31, 1996 and zero for other periods. The fees are included in other non-operating income (expense).
. Broadcast cash flow margin represents broadcast cash flow as a percentage of net revenues.
. EBITDA consists of broadcast cash flow minus corporate general and administrative expenses.
. After-tax cash flow consists of net income (loss) minus gains on sale of radio stations plus the following: equity appreciation rights, format change expenses, depreciation and amortization, impairment loss on long- lived assets, deferred income tax expense (or minus deferred income tax benefit), nonrecurring items and other non-cash charges.
. No expense for equity appreciation rights has been recorded for the periods presented other than the years ended December 31, 1999 and 2000.
Although broadcast cash flow, EBITDA and after-tax cash flow are not measures of performance or liquidity calculated in accordance with generally accepted accounting principles, we believe that these measures are useful to an investor in evaluating our performance. These measures are widely used in the broadcast industry to evaluate a radio company's operating performance. However, you should not consider these measures in isolation or as substitutes for operating income, cash flows from operating activities or any other measure for determining our operating performance or liquidity that is calculated in accordance with generally accepted accounting principles. In addition, because broadcast cash flow, EBITDA and after-tax cash flow are not calculated in accordance with generally accepted accounting principles, they are not necessarily comparable to similarly titled measures employed by other companies.
The comparability of the historical financial information reflected below has been significantly affected by acquisitions and dispositions. You should read the selected financial data together with "Management Discussion and Analysis of Financial Condition and Results of Operations" and our combined financial statements and the related notes included elsewhere in this report.
Year ended December 31,
-------------------------------------------------------------------
1996 1997 1998 1999 2000
----------- ----------- ----------- ----------- -----------
(in thousands except per share data, shares outstanding and
margin data)
Operating Data:
Net revenues............ $ 62,413 $ 73,704 $ 81,433 $ 93,621 $ 106,154
Operating expenses:
Radio station
operating expenses.... 42,163 55,247 61,692 66,661 71,725
Corporate general and
administrative........ 2,233 2,055 2,498 2,764 3,992
Equity appreciation
rights................ -- -- -- 606 1,174
Format change
expenses.............. -- -- -- -- 1,545
Depreciation and
amortization.......... 8,317 14,174 16,096 16,410 17,409
Impairment loss on
long-lived assets..... -- 4,124 -- -- --
----------- ----------- ----------- ----------- -----------
Total operating
expenses............ 52,713 75,600 80,286 86,441 95,845
Operating income
(loss)............ 9,700 (1,896) 1,147 7,180 10,309
Other income (expense):
Interest expense....... (9,340) (13,606) (13,602) (14,008) (8,813)
Unrealized loss on
investment............ -- -- -- -- (2,400)
Other non-operating
income (expense)...... (2,025) 54 (160) 776 304
Gain on sale of radio
stations.............. 16,773 82,067 4,028 -- --
----------- ----------- ----------- ----------- -----------
Total other income
(expense)........... 5,408 68,515 (9,734) (13,232) (10,909)
Income (loss)
before income
taxes............. 15,108 66,619 (8,587) (6,052) (600)
Current income tax
expense................ -- -- -- -- 3,598
Deferred income tax
expense................ -- -- -- -- 25,400
----------- ----------- ----------- ----------- -----------
Net income (loss)....... $ 15,108 $ 66,619 $ (8,587) $ (6,052) $ (29,598)
=========== =========== =========== =========== ===========
Pro-forma current income
tax expense (benefit).. 567 7,054 (5,010) 692 N/A
Pro-forma deferred
income tax expense
(benefit).............. 5,318 18,741 1,760 (2,896) N/A
----------- ----------- ----------- ----------- -----------
Pro-forma net income
(loss)................. $ 9,223 $ 40,824 $ (5,337) $ (3,848) N/A
=========== =========== =========== =========== ===========
Basic and diluted net
loss per share......... -- -- -- -- (1.26)
Pro forma basic and
diluted net income
(loss) per share....... 0.53 2.34 (0.31) (0.22) --
Weighted average common
shares outstanding--
basic and diluted...... 17,423,441 17,423,441 17,423,441 17,423,441 23,506,091
Other Data:
Broadcast cash flow..... $ 20,250 $ 18,457 $ 19,741 $ 26,960 $ 34,429
Broadcast cash flow
margin................. 32 % 25 % 24 % 29 % 32 %
EBITDA before net income
or loss from local
management and time
brokerage Agreements... $ 18,017 $ 16,402 $ 17,243 $ 24,196 $ 30,438
After tax cash flow..... -- -- -- -- 18,473
Pro-forma after tax cash
flow................... 6,085 (4,204) 8,491 10,379 --
Cash provided by (used
in):
Operating activities... $ 5,303 $ 1,586 $ 4,921 $ 7,195 $ 7,705
Investing activities... (66,300) 18,871 (12,527) (2,760) (29,057)
Financing activities... 63,152 (17,052) 4,689 (2,192) 20,092
As of December 31,
-------------------------------------------------------------------
1996 1997 1998 1999 2000
----------- ----------- ----------- ----------- -----------
(in thousands)
Balance Sheet:
Cash and cash
equivalents............ $ 4,273 $ 7,678 $ 4,760 $ 7,003 $ 5,743
Intangibles, net........ 100,442 145,487 151,048 137,287 164,894
Total assets............ 145,707 193,440 194,773 185,861 218,159
Long-term debt.......... 155,149 152,644 163,285 163,123 103,487
Total stockholders'
equity (deficit)....... (25,703) 19,579 6,041 (2,919) 78,958
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion together with the financial statements and related notes included elsewhere in this report. The results discussed below are not necessarily indicative of the results to be expected in any future periods.
General
A radio broadcasting company derives its revenues primarily from the sale of broadcasting time to local and national advertisers. The advertising rates that a radio station is able to charge and the number of advertisements that can be broadcast without jeopardizing listener levels largely determine those revenues. Advertising rates are primarily based on three factors:
. a radio station's audience share in the demographic groups targeted by advertisers, as measured principally by quarterly reports issued by The Arbitron Ratings Company;
. the number of radio stations in the market competing for the same demographic groups; and
. the supply of and demand for radio advertising time.
In 2000, we generated 72.2% of our revenues from local advertising, which is sold primarily by each individual local radio station's sales staff. We generated 19.7% of our revenues from national spot advertising in 2000, which is purchased through independent, national advertising sales representatives by customers that want to advertise nationwide. We generated the balance of our revenues principally from promotional events and sales to broadcasting networks that purchase commercial airtime.
We include revenues recognized under a time brokerage agreement or similar sales agreement for radio stations operated by us before acquiring the radio stations in net revenues, while we reflect operating expenses associated with these radio stations in station operating expenses. Consequently, there is no difference in the method of revenue and operating expense recognition between a radio station operated by us under a time brokerage agreement or similar sales agreement and a radio station owned and operated by us. For the periods discussed below, revenues and operating expenses under time brokerage agreements or similar sales agreements were not material for years subsequent to 1996. Since 1997, we have not operated any stations under time brokerage agreements or other similar sales agreements.
Several factors may adversely affect a radio broadcasting company's performance in any given period. In the radio broadcasting industry, seasonal revenue fluctuations are common and are due primarily to variations in advertising expenditures by local and national advertisers. Typically, revenues are lowest in the first calendar quarter of the year. We generally incur advertising and promotional expenses to increase listenership and Arbitron ratings. However, because Arbitron reports ratings quarterly in most of our markets, any increased ratings, and therefore increased advertising revenues, tend to lag behind the incurrence of advertising and promotional spending.
In the broadcasting industry, radio stations often utilize trade or barter agreements to reduce expenses by exchanging advertising time for goods or services. In order to maximize cash revenue from our spot inventory, we minimize our use of trade agreements and during the past five years have held barter revenues under 5% of our gross revenues and barter related broadcast cash flow under 3% of our broadcast cash flow. However, barter revenues increased as a percentage of our gross revenues and barter related broadcast cash flow increased as a percentage of our broadcast cash flow in fiscal 2000 due to our investments in eTour, Inc. and FindWhat.com.
We calculate same station results by comparing the performance of radio stations operated by us at the end of a relevant period to the performance of those same stations, whether or not operated by us, in the prior
year's corresponding period, including the effect of barter revenues and expenses. Same station results exclude WPTP-FM in the Philadelphia market which changed formats during the fourth quarter of 2000. Broadcast cash flow consists of operating income before corporate general and administrative expenses, equity appreciation rights, format change expenses, and depreciation and amortization, and may not be comparable to similarly titled measures employed by other companies. Same station broadcast cash flow is the broadcast cash flow of the radio stations included in our same station calculations.
For purposes of the following discussion, pro forma net income represents historical income before income taxes adjusted as if we were treated as a subchapter C corporation during all relevant periods at an effective tax rate of 38.62%, applied to income before income taxes.
Results of Operations
Several factors have affected our results of operations in the year ended December 31, 2000 that did not affect our historical results of operations. First, we redeemed, for cash, equity appreciation rights previously granted to some of our station managers, as we do not believe this form of compensation is well-suited to public companies. In connection with this redemption, we recorded an expense of approximately $606,000 and $1,174,000 in the fourth quarter of 1999 and first quarter of 2000, respectively. Second, in connection with our reorganization on February 11, 2000, our net stockholders' equity was reduced by approximately $27.6 million to establish the net deferred tax liability resulting from the termination of our subchapter S status. Third, in connection with the format change at WPTP-FM in the Philadelphia market on November 6, 2000, we recorded one-time expenses of approximately $1.5 million during the fourth quarter of 2000.
Finally, corporate general and administrative expenses have increased as we incur the additional reporting and compliance costs of operating as a public company.
Additionally, we have one contract that will continue to negatively affect our operating results going forward. In 1997, we entered into contracts for the radio broadcast rights relating to the Miami Dolphins, Florida Marlins and Florida Panthers sports franchises. These contracts grant WQAM-AM the exclusive, English language rights for live radio broadcasts of the sporting events of these franchises for a five year term which began in 1997. The contracts require us to pay fees and to provide commercial advertising and other considerations. As of December 31, 2000, remaining payments of fees are as follows: $8.8 million in 2001 and $359,000 in 2002. For the years ended December 31, 1998, 1999 and 2000, the contract expense calculated on a straight-line basis and other direct expenses exceeded related revenues by $3,617,000, $2,770,000 and $4,034,000, respectively. Unless we are able to generate significantly more revenues under these contracts in the future, they are likely to have a material adverse effect on our results of operations on a going-forward basis. However, in light of the uncertainty regarding future revenues, the amount of any future loss cannot be determined at this time.
Year Ended December 31, 2000 Compared to Year Ended December 31, 1999
Net Revenue. Net revenue increased 13.4% to $106.2 million for 2000 from $93.6 million for 1999. The increase was primarily due to revenue growth at most of our existing radio stations, particularly in the Miami-Ft. Lauderdale and Greenville-New Bern-Jacksonville markets. In addition, net revenues increased due to our radio station acquisitions in the Atlanta, Boston, Miami- Ft. Lauderdale and West Palm Beach markets. Net revenues decreased in the Philadelphia market due to programming changes. On a same station basis, net revenues increased 10.8% to $99.7 million for 2000 from $90.0 million for 1999.
Station Operating Expenses. Station operating expenses increased 7.6% to $71.7 million for 2000 from $66.7 million for 1999. The increase was primarily due to increased station operating expenses at most of our existing radio stations associated with generating the growth in net revenues. In addition, station operating expenses increased due to our radio station acquisitions in the Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets. Station operating expenses decreased in the Philadelphia market due to programming changes. On a same station basis, station operating expenses increased 7.4% to $65.2 million for 2000 from $60.7 million for 1999.
Corporate General and Administrative Expenses. Corporate general and administrative expenses increased 44.4% to $4.0 million for 2000 from $2.8 million for 1999. The increase was primarily due to higher general and administrative expenses associated with our revenue growth over the same period and from operating as a public company.
Depreciation and Amortization. Depreciation and amortization increased 7.9% to $17.7 million for 2000 from $16.4 million for 1999. The increase was primarily due to additional amortization and depreciation associated with the acquisitions of radio stations in Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets.
Interest Expense. Interest expense decreased 37.1% to $8.8 million in 2000 from $14.0 million for 1999. The decrease was primarily due to the repayment of $58.5 million of the credit facility as well as the repayment of all outstanding notes payable to related parties with proceeds from the initial public offering. This decrease was partially offset by an increase in interest expense due to financing the radio station acquisitions in the Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets with borrowings from our credit facility.
Broadcast Cash Flow. Broadcast cash flow increased 27.7% to $34.4 million for 2000 from $27.0 million for 1999. The increase was primarily due to the additional broadcast cash flow generated through revenue growth and increased operating efficiencies at most of our existing radio stations, particularly in the Greenville-New Bern-Jacksonville and Philadelphia markets. In addition, broadcast cash flow increased due to our radio station acquisitions in the Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets. On a same station basis, broadcast cash flow increased 17.8% to $34.5 million for 2000 from $29.3 million for 1999.
Income (Loss) Before Income Taxes. We experienced a loss before income taxes of $600,000 for 2000 versus a loss before pro forma income taxes of $6.1 million for 1999. The decrease in the loss was primarily due to the additional income before income taxes generated through the revenue growth, increased operating efficiencies at most of our existing radio stations, and a decrease in interest expense due to reduced borrowings from our credit facility. The revenue growth and increased operating efficiencies were partially offset by the redemption of equity appreciation rights for $1.2 million and the increase in amortization and depreciation associated with the acquisition of radio stations in Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets.
Net Income (Loss). Net loss for 2000 was $29.6 million compared to pro forma net loss of $3.8 million for 1999. The increase in the loss was primarily due to the establishment of a $27.6 million net deferred tax liability upon conversion from a series of subchapter S corporations to a series of subchapter C corporations, the $1.2 million redemption of equity appreciation rights as a result of the initial public offering and corporate reorganization, the one- time expenses of approximately $1.5 million associated with the format change at WPTP-FM in the Philadelphia market, the increase in amortization and depreciation associated with the acquisition of radio stations in Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets, and the $2.4 million unrealized loss on our investment in FindWhat.com. The net loss for the year ended December 31, 2000 was partially offset by the additional net income generated through the revenue growth, increased operating efficiencies at most of our existing radio stations and the decrease in interest expense due to reduced borrowings from our credit facility.
Year Ended December 31, 1999 Compared to Year Ended December 31, 1998
Net Revenue. Net revenue increased 15.0% to $93.6 million for 1999 from $81.4 million for 1998. The increase was primarily due to revenue growth at some of our radio stations, particularly in the Miami-Ft. Lauderdale market. On a same station basis, net revenues increased 14.4% to $93.6 million for 1999 from $81.8 million for 1998.
Station Operating Expenses. Station operating expenses increased 8.1% to $66.7 million for 1999 from $61.7 million for 1998. The increase was primarily due to increased program and production, sales and
advertising, and general and administrative expenses associated with generating our revenue growth. On a same station basis, station operating expenses increased 8.5% to $66.6 million for 1999 from $61.4 million for 1998.
Corporate General and Administrative Expenses. Corporate general and administrative expenses increased 12.0% to $2.8 million for 1999 from $2.5 million for 1998. The increase was primarily due to higher general and administrative expenses associated with our revenue growth over the same period.
Depreciation and Amortization. Depreciation and amortization increased 1.9% to $16.4 million for 1999 from $16.1 million for 1998. The increase was primarily due to radio station acquisitions in 1998.
Interest Expense. Interest expense increased 2.9% to $14.0 million in 1999 from $13.6 million for 1998. The increase was primarily due to radio station acquisitions in 1998 and increasing interest rates in 1999.
Broadcast Cash Flow. Broadcast cash flow increased 37.1% to $27.0 million for 1999 from $19.7 million for 1998. The increase was primarily due to revenue growth at some of our stations, particularly in the Miami-Ft. Lauderdale market. On a same station basis, broadcast cash flow increased 32.3% to $27.0 million for 1999 from $20.4 million for 1998.
Gain (Loss) on Sale of Radio Stations. We did not dispose of any radio stations in 1999. In 1998, we recognized a gain of $4.0 million primarily as a result of the sale of two radio stations, KAAY-AM in Little Rock, Arkansas and WEWO-AM in Fayetteville, North Carolina, for a total of approximately $5.2 million.
Income (Loss) Before Pro Forma Income Taxes. We experienced a loss before pro forma income taxes of $6.1 million for 1999 versus a loss before pro forma income taxes of $8.6 million for 1998. The difference between 1999 and 1998 is mainly attributable to revenue growth at some of our radio stations, particularly in the Miami-Ft. Lauderdale market. Excluding gains on sales of radio stations, loss before pro forma income taxes would have been $12.6 million for 1998.
Pro Forma Net Income (Loss). Pro forma net loss for 1999 was $3.8 million compared to pro forma net loss of $5.3 million for 1998. The change was mainly attributable to revenue growth at some of our radio stations, particularly in the Miami-Ft. Lauderdale market.
Year Ended December 31, 1998 Compared to Year Ended December 31, 1997
Net Revenue. Net revenue increased 10.5% to $81.4 million for 1998 from $73.7 million for 1997. Approximately $6.8 million of the increase was attributable to the inclusion, during the entire period, of operating results from the stations acquired in 1998. The increase was also attributable to revenue growth at some of our radio stations, especially in the Miami-Ft. Lauderdale market. On a same station basis, net revenues increased 10.7% to $81.8 million for 1998 from $73.9 million for 1997.
Station Operating Expenses. Station operating expenses increased 11.8% to $61.7 million for 1998 from $55.2 million for 1997. Approximately $5.9 million of the increase was attributable to the inclusion during the entire period of operating results from the radio stations acquired in 1997. The increase was also attributable to the introduction of additional news programming at WWDB- FM, the increased rights fees associated with our contracts to broadcast Miami sports teams and the addition of Neil Rogers, a top ranked personality in the Miami-Ft. Lauderdale market to our programming line-up at WQAM-AM. On a same station basis, station operating expenses increased 13.7% to $61.4 million for 1998 from $54.0 million for 1997.
Corporate General and Administrative Expenses. Corporate general and administrative expenses increased 21.6% to $2.5 million for 1998 from $2.1 million for 1997. The increase was mainly attributable to higher administrative expenses associated with supporting our growth.
Depreciation and Amortization. Depreciation and amortization increased 13.6% to $16.1 million for 1998 from $14.2 million for 1997. The increase was mainly attributable to radio station acquisitions in 1998.
Interest Expense. Interest expense remained constant at $13.6 million for 1998 and 1997. This was attributable to a reduction in the interest rate charged on our credit facility as a result of more favorable terms, offset by a higher debt balance due to borrowings to fund acquisitions.
Broadcast Cash Flow. Broadcast cash flow increased 7.1% to $19.7 million for 1998 from $18.4 million for 1997. Approximately $900,000 of the increase was attributable to the inclusion, during the entire period, of operating results from the stations acquired in 1997. The increase was also attributable to revenue growth at most of our radio stations, in particular WQAM-AM and WKIS-FM in the Miami-Ft. Lauderdale market. On a same station basis, broadcast cash flow increased 3.0% to $20.4 million for 1998 from $19.8 million for 1997.
Gain (Loss) on Sale of Radio Stations. We recognized a gain on sale of radio stations of $4.0 million for 1998 primarily as a result of the sale of two radio stations, KAAY-AM in Little Rock, Arkansas and WEWO-AM in Fayetteville, North Carolina, for a total of approximately $5.2 million. In 1997, we sold WDAS-AM/FM in Philadelphia for approximately $100 million, for which we recognized a gain of $79.8 million.
Income (Loss) Before Pro Forma Income Taxes. We experienced a loss before pro forma income taxes of $8.6 million for 1998 versus income of $66.6 million for 1997. The difference between 1998 and 1997 is mainly attributable to the recognition of an $82.1 million gain on sale of radio stations in 1997. Excluding gains on sales of radio stations, loss before pro forma income taxes would have been $12.6 million for 1998 and $15.4 million for 1997.
Pro Forma Net Income (Loss). Pro forma net loss for 1998 was $5.3 million compared to pro forma net income of $40.8 million for 1997. The change was mainly attributable to the reduction of the gain on the sale of radio stations and taking into account pro forma income taxes or tax benefits.
Liquidity and Capital Resources
Overview. Historically, we have used a significant portion of our liquidity to consummate acquisitions. These acquisitions have been funded from one or a combination of the following sources:
. our credit facility;
. disposing of radio stations in transactions which are intended to qualify as like-kind exchanges under Section 1031 of the Internal Revenue Code;
. internally-generated cash flow; and
. advances to us from George G. Beasley, members of his family and affiliated entities.
Other liquidity needs have been for debt service, working capital, distributions to equity holders and general corporate purposes, including capital expenditures. In the future, we expect that our principal liquidity requirements will be for working capital and general corporate purposes, including acquisitions of additional radio stations. We expect to finance future acquisitions through a combination of bank borrowings, internally generated funds and our stock.
We used approximately $58.5 million of the net proceeds from our initial public offering to pay down debt on our credit facility, which increased the availability of cash to fund future acquisitions, including the recently completed and pending acquisitions, and other general corporate purposes. We also used approximately $40.5 million of the proceeds of our initial public offering to repay the indebtedness owed to our Chairman and Chief Executive Officer, George G. Beasley, and affiliated companies. That approximately $40.5 million payment is net of the repayment at the closing of the initial public offering of approximately $10.3 million owed to us by members of the Beasley family.
As of December 31, 2000, we held $5.7 million in cash and cash equivalents and had $197.8 million in availability under our credit facility we obtained on August 31, 2000, as described below. We completed one
acquisition on January 31, 2001 with an aggregate purchase price of $113.5 million and we have one pending acquisition with an aggregate purchase price of $12.0 million. We believe that the cash available from operations as well as the availability from our credit facility should be sufficient to permit us to meet our financial obligations for at least the next twelve months. Under our credit facility, we can currently borrow up to $300.0 million, subject to compliance with financial ratios and other restrictive covenants.
Net Cash Provided by (Used in) Operating Activities. Net cash provided by operating activities was $7.7 million and $7.2 million for 2000 and 1999, respectively. Equity appreciation rights totaling $1.2 million were redeemed during the year ended December 31, 2000; however this redemption was offset by the additional net income generated through the revenue growth, increased operating efficiencies at most of our existing radio stations, and the decrease in interest expense due to reduced borrowings from our credit facility.
Net cash provided by operating activities was $7.2 million and $4.9 million for 1999 and 1998, respectively. The increase of approximately $2.3 million was primarily due to the increase in revenue growth, from $81.4 million to $93.6 million.
Net cash provided by operating activities was $4.9 million and $1.6 million for 1998 and 1997, respectively. The increase of approximately $3.3 million from 1997 to 1998 was primarily a result of an increase in revenues, from $73.7 million to $81.4 million.
Net Cash Provided by (Used in) Investing Activities. Net cash used in investing activities was $29.1 million and $2.8 million for 2000 and 1999, respectively. The change was partially due to loans to the former S corporation stockholders and the subsequent repayment of these loans and all other outstanding notes receivable from related parties and stockholders as a result of our initial public offering. The change was also partially due to the radio station acquisitions in the Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets and expenditures for property and equipment.
Net cash used in investing activities was $2.8 million and $12.5 million for 1999 and 1998, respectively. The decrease of $9.7 million was primarily due to the acquisitions and dispositions in 1998, the proceeds from the sale of property in 1998 and the release of restricted cash in 1998. In 1999, cash used in investing activities primarily consisted of expenditures for property and equipment; however, there were no acquisitions or dispositions in 1999.
Net cash used in investing activities was $12.5 million for 1998 compared with net cash provided by investing activities of $18.9 million for 1997. The increase of $31.4 million of net cash used was primarily a result of the use of approximately $19 million for the acquisitions of WJBX-FM, WJST-FM and WTMR-AM in 1998, partially offset by the net proceeds of $5.2 million from the sale of KAAY-AM and WEWO-AM in 1998. In 1997, we used $77.7 million of cash to acquire six stations, which was offset by the proceeds of $103.5 million from the sale of WDAS-AM/FM, WEGX-FM, WDSC-AM and WTSB-AM.
Net Cash Provided by (Used in) Financing Activities. Net cash provided by financing activities was $20.1 million for 2000 and net cash used in financing activities was $2.2 million for 1999. The change was partially due to distributions made to the former S corporation stockholders prior to our initial public offering. The change was also partially due to the proceeds from our initial public offering, less related costs, which were used for repayment of approximately $58.5 million of the credit facility and all outstanding notes payable to related parties. The change was also partially due to additional borrowings from our credit facility to complete the radio station acquisitions in the Atlanta, Boston, Miami-Ft. Lauderdale and West Palm Beach markets. The change was also partially due to payments of loan fees related to the refinancing of our credit facility.
Net cash used in financing activities was $2.2 million for 1999 and net cash provided by financing activities was $4.7 million for 1998. This increase of net cash used in financing activities of $6.9 million was primarily due to the refinancing of the revolving credit loan in 1998 which was offset by loan fees associated with the refinancing in 1998 and higher capital contributions and decreased stockholder distributions in 1999.
Net cash provided by financing activities was $4.7 million for the year ended 1998 compared to net cash used in financing activities of $17.1 million for 1997. The increase of net cash provided of $21.8 million from 1997 to 1998 was primarily a result of lower stockholder distributions of $6.0 million, offset by cash from additional borrowings during 1998. In 1997, we had stockholder distributions of $20.7 million that were not offset by additional borrowings.
Credit Facility. On August 31, 2000, we refinanced our $150.0 million credit facility. Under terms of the new credit agreement, we were provided a credit facility with a maximum commitment of $300.0 million. The credit facility includes a $150.0 million revolving credit loan and a $150.0 million term loan. The revolving credit loan includes a $50.0 million sub-limit for letters of credit. The loans bear interest at either the base rate or LIBOR plus a margin that is determined by the Company's debt to cash flow ratio. The base rate is equal to the higher of the prime rate or the overnight federal funds effective rate plus 0.5%. Interest is generally payable monthly through maturity on June 30, 2008. The scheduled reductions in the amount available under the credit facility may require principal repayments if the outstanding balance at that time exceeds the new maximum available amount under the credit facility. The credit agreement requires the Company to maintain certain financial ratios and includes restrictive covenants. The loans are secured by substantially all assets of the Company and its subsidiaries.
As of December 31, 2000, the scheduled reductions of the maximum commitment of the credit facility for the next five fiscal years and thereafter are as follows:
Revolving Total
Credit Term Credit
Loan Loan Facility
------------ ------------ ------------
2002.................................. $ -- $ 15,000,000 $ 15,000,000
2003.................................. -- 22,500,000 22,500,000
2004.................................. 15,000,000 22,500,000 37,500,000
2005.................................. 22,500,000 30,000,000 52,500,000
Thereafter............................ 112,500,000 60,000,000 172,500,000
------------ ------------ ------------
Total............................... $150,000,000 $150,000,000 $300,000,000
============ ============ ============
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As of December 31, 2000, we had an outstanding balance under our credit facility of approximately $227.7 million and availability under our credit facility of $72.3 million for future acquisitions and other corporate purposes. These amounts are after giving effect to:
. the Las Vegas and New Orleans acquisitions; and
. the pending acquisitions in Augusta;
As of December 31, 2000, the weighted average annual interest rate applicable to our credit facility was approximately 7.9375%. The credit facility expires on June 30, 2008.
We must pay a quarterly unused commitment fee, which is based upon our total leverage to operating cash flow ratio and ranges from 0.25% to 0.375% of the unused portion of the maximum commitment. Beginning on December 31, 2000, if the unused portion exceeds 50% of the maximum commitment the fee is increased by 0.375%. For the year ended December 31, 2000, our unused commitment fee was approximately $284,000.
We are required to satisfy financial covenants, which require us to maintain specified financial ratios and to comply with financial tests, such as ratios for maximum total leverage, minimum interest coverage and minimum fixed charges. These financial covenants include:
. Maximum Total Leverage Test. From August 31, 2000 through March 31, 2001, our total debt as of the last day of each fiscal quarter must not exceed 6.75 times our operating cash flow for the four quarters ending on that day. For the period from April 1, 2001 through September 30, 2001, the required maximum ratio is 6.5 times. For the period from October 1, 2001 through March 31, 2002, the
required maximum ratio is 6.25 times. For the period from April 1, 2002 through December 31, 2002, the required maximum ratio is 6.0 times. For each twelve-month period after December 31, 2002, the maximum ratio will decrease by 0.5 times. For all periods after January 1, 2006, the maximum ratio is 4.0 times.
. Minimum Interest Coverage Test. From August 31, 2000 through June 30, 2001, our operating cash flow for the four quarters ending on the last day of each fiscal quarter must not be less than 1.75 times the amount of our interest expense. For all periods after July 1, 2001, the minimum ratio is 2.0 times.
. Minimum Fixed Charges Test. Our operating cash flow for any four consecutive quarters must not be less than 1.10 times the amount of our fixed charges.
The new credit facility also prohibits us from paying cash dividends and restricts our ability to make other distributions with respect to our capital stock. The credit facility also contains other customary restrictive covenants. These covenants limit our ability to:
. incur additional indebtedness and liens;
. enter into certain investments or joint ventures;
. consolidate, merge or effect asset sales;
. make overhead expenditures;
. enter sale and lease-back transactions;
. sell or discount accounts receivable;
. enter into transactions with affiliates or stockholders;
. sell, assign, pledge, encumber or dispose of capital stock; or
. change the nature of our business.
Pending Acquisitions. The total cash required to fund our pending acquisitions in Augusta is expected to be approximately $12.0 million. The consummation of the pending transactions is subject to certain conditions, including the approval of the FCC. Although we believe these closing conditions are customary for transactions of this type, these conditions may not be satisfied.
Recent Pronouncements
In June 1998 the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative Instruments and Certain Hedging Activities." In June 2000 the FASB issued SFAS No. 138, "Accounting for Certain Derivative Instruments and Certain Hedging Activity, an Amendment of SFAS 133." SFAS No. 133 and SFAS No. 138 require that all derivative instruments be recorded on the balance sheet at their respective fair values. SFAS No. 133 and SFAS No. 138 are effective for all fiscal quarters of all fiscal years beginning after June 30, 2000; we adopted SFAS No. 133 and SFAS No. 138 on January 1, 2001. In accordance with the transition provisions of SFAS 133, we recorded an asset of $66,000 to recognize our derivatives at fair value.
In September 2000, the FASB issued SFAS No. 140 entitled "Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities." SFAS 140 provides accounting and reporting standards for transfers and servicing of financial assets and extinguishments of liabilities. SFAS 140 replaces SFAS No. 125 and is effective for transfers and servicing of financial assets and extinguishments occurring after March 31, 2001. SFAS 140 is effective for recognition and reclassification of collateral and for disclosures relating to securitization transactions and collateral for fiscal years ending after December 15, 2000. The Company has not completed its evaluation of SFAS 140; however, management does not anticipate that the adoption of SFAS 140 will have a material impact on the Company's earnings or financial position upon adoption.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
Market risk is the risk of loss arising from adverse changes in market rates and prices such as interest rates, foreign currency exchange rate and commodity prices. Our primary exposure to market risk is interest rate risk associated with our credit facility. Amounts borrowed under the credit facility incur interest at the London Interbank Offered Rate, or LIBOR, plus additional basis points depending on the outstanding principal balance under the credit facility. As of December 31, 2000, $102.2 million was outstanding under our credit facility. We evaluate our exposure to interest rate risk by monitoring changes in interest rates in the market place.
To manage interest rate risk associated with our credit agreement, we have entered into interest rate collar and swap agreements.
An interest rate collar is the combined purchase and sale of an interest rate cap and an interest rate floor so as to keep interest rate exposure within a defined range. We have purchased four interest rate collars. Under these agreements, our base LIBOR cannot exceed the cap interest rate and our base LIBOR cannot fall below our floor interest rate. In February 2001, one interest rate collar was canceled and we purchased another interest rate collar.
An interest rate swap is a combined series of forward rate agreements calling for exchange of interest payments on a number of specified future dates. We have purchased one interest rate swap. Under this agreement, we pay a fixed rate of 6.48%, on the notional amount, and the other party pays to us a variable amount rate equal to the three-month LIBOR on a quarterly basis. In February 2001, our swap agreement was canceled.
Notional amounts are used to calculate the contractual payments to be exchanged under the contract. As of December 31, 2000 and February 13, 2001, the notional amount upon maturity of these collar and swap agreements, is approximately $100.0 million and $115.0 million, respectively.
As of December 31, 2000, our collar and swap agreements are summarized as follows:
Estimated
Notional Expiration Fair
Agreement Amount Floor Cap Swap Date Value
--------- ----------- ----- ---- ---- ------------- ---------
Interest rate collar.. $20,000,000 6.69% 8% -- May 2002 $(1,000)
Interest rate collar.. $20,000,000 5.85% 7.5% -- October 2002 --
Interest rate swap.... $20,000,000 -- -- 6.48% October 2002 67,000
Interest rate collar.. $20,000,000 5.45% 7.5% -- November 2002 --
Interest rate collar.. $20,000,000 5.75% 7.35% -- November 2002 --
As of February 13, 2001, our collar agreements are summarized as follows:
Notional Expiration
Agreement Amount Floor Cap Swap Date
--------- ----------- ----- ---- ---- -------------
Interest rate collar.. $20,000,000 6.69% 8% -- May 2002
Interest rate collar.. $20,000,000 5.45% 7.5% -- November 2002
Interest rate collar.. $20,000,000 5.75% 7.35% -- November 2002
Interest rate collar.. $55,000,000 4.99% 7% -- October 2003
|
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
BEASLEY BROADCAST GROUP, INC.
INDEX TO FINANCIAL STATEMENTS
Page
----
Financial Statements
Independent Auditor's Report............................................. 32
Balance Sheets as of December 31, 1999 and 2000.......................... 33
Statements of Operations for the Years Ended December 31, 1998, 1999 and
2000.................................................................... 34
Statements of Stockholders' Equity for the Years Ended December 31, 1998,
1999 and 2000........................................................... 35
Statements of Cash Flows for the Years Ended December 31, 1998, 1999 and
2000.................................................................... 36
Notes to Financial Statements............................................ 37
Financial Statement Schedule--Valuation and Qualifying Accounts.......... 53
|
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Beasley Broadcast Group, Inc.:
We have audited the accompanying combined balance sheet of Beasley Broadcast Group, Inc. as of December 31, 1999 and the accompanying consolidated balance sheet of Beasley Broadcast Group, Inc. as of December 31, 2000, and the related combined statements of operations, stockholders' equity and cash flows for each of the years in the two-year period ended December 31, 1999 and the related consolidated statement of operations, stockholders' equity and cash flows for the year ended December 31, 2000. In connection with our audits of the combined and consolidated financial statements, we have also audited the accompanying financial statement schedule as listed in the accompanying index. These financial statements and the accompanying financial statement schedule are the responsibility of the management of Beasley Broadcast Group, Inc. Our responsibility is to express an opinion on these financial statements and the accompanying financial statement schedule based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Beasley Broadcast Group, Inc. as of December 31, 1999 and 2000, and the results of its operations and its cash flows for each of the years in the three-year period ended December 31, 2000, in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.
/s/ KPMG LLP
Tampa, Florida
February 9, 2001
|
BEASLEY BROADCAST GROUP, INC.
BALANCE SHEETS
Combined Consolidated
December 31, December 31,
1999 2000
------------ ------------
ASSETS
Current assets:
Cash and cash equivalents........................ $ 7,002,669 $ 5,742,628
Accounts receivable, less allowance for doubtful
accounts of $560,282 in 1999 and $607,147 in
2000............................................ 19,915,098 18,712,862
Trade sales receivable........................... 735,607 843,843
Other receivables................................ 676,478 980,504
Prepaid expenses and other....................... 1,918,223 2,249,615
Deferred tax asset............................... -- 176,000
------------ ------------
Total current assets........................... 30,248,075 28,705,452
Property and equipment, net........................ 15,773,175 15,619,688
Notes receivable from related parties.............. 556,796 4,990,480
Intangibles, net................................... 137,287,291 164,893,584
Other investments.................................. -- 1,523,729
Other assets....................................... 1,995,819 2,425,631
------------ ------------
Total assets....................................... $185,861,156 $218,158,564
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current installments of long-term debt........... $ 166,319 $ 8,352
Notes payable to related parties................. 10,447,454 --
Accounts payable................................. 5,027,145 2,355,006
Accrued expenses................................. 9,213,133 6,986,006
Trade sales payable.............................. 970,108 798,198
------------ ------------
Total current liabilities...................... 25,824,159 10,147,562
Long-term debt, less current installments.......... 125,680,696 103,478,405
Long-term debt to related parties.................. 37,275,622 --
Deferred tax liability............................. -- 25,575,000
------------ ------------
Total liabilities.............................. 188,780,477 139,200,967
------------ ------------
Commitments and contingencies (note 9)
Preferred stock, $0.001 par value, 10,000,000
shares authorized, none issued.................... -- --
Class A common stock, $0.001 par value, 150,000,000
shares authorized, 7,252,068 issued and
outstanding....................................... -- 7,252
Class B common stock, $0.001 par value, 75,000,000
shares authorized, 17,021,373 issued and
outstanding....................................... -- 17,021
Common stock....................................... 4,530,352 --
Additional paid-in capital......................... 34,774,928 106,633,932
Accumulated deficit................................ (32,818,024) (27,700,608)
Treasury stock..................................... (548,600) --
------------ ------------
Stockholders' equity............................... 5,938,656 78,957,597
Notes receivable from stockholders................. (8,857,977) --
------------ ------------
Net stockholders' equity (deficit)................. (2,919,321) 78,957,597
------------ ------------
Total liabilities and stockholders' equity
(deficit)......................................... $185,861,156 $218,158,564
============ ============
|
See accompanying notes to financial statements
BEASLEY BROADCAST GROUP, INC.
STATEMENTS OF OPERATIONS
Combined Combined Consolidated
Year Ended Year Ended Year Ended
December December December 31,
31, 1998 31, 1999 2000
----------- ----------- ------------
Net revenues.......................... $81,433,406 $93,621,404 $106,153,640
----------- ----------- ------------
Costs and expenses:
Program and production.............. 25,116,151 27,176,460 27,919,127
Sales and advertising............... 23,110,566 25,040,086 28,208,358
Station general and administrative.. 13,464,792 14,443,785 15,597,101
Corporate general and
administrative..................... 2,498,411 2,764,216 3,991,535
Equity appreciation rights.......... -- 606,407 1,173,759
Format change expenses.............. -- -- 1,545,547
Depreciation and amortization....... 16,096,653 16,410,321 17,409,162
----------- ----------- ------------
Total costs and expenses.......... 80,286,573 86,441,275 95,844,589
----------- ----------- ------------
Operating income................ 1,146,833 7,180,129 10,309,051
Other income (expense):
Interest expense.................... (13,601,867) (14,008,312) (8,812,564)
Unrealized loss on investment....... -- -- (2,400,000)
Other non-operating expenses........ (1,580,554) (107,154) (310,754)
Interest income..................... 817,567 883,704 446,197
Other non-operating income.......... 348,890 -- 168,383
Gain on sale of radio stations...... 4,028,013 -- --
Minority interest................... 253,993 -- --
----------- ----------- ------------
Loss before income taxes........ $(8,587,125) $(6,051,633) $ (599,687)
Income tax expense.................... -- -- 28,998,000
----------- ----------- ------------
Net loss........................ $(8,587,125) $(6,051,633) $(29,597,687)
=========== =========== ============
Basic and diluted net loss per share.. $ -- $ -- $ (1.26)
=========== =========== ============
Pro forma income tax benefit
(unaudited).......................... $(3,250,000) $(2,204,000) N/A
=========== =========== ============
Pro forma net loss (unaudited)........ $(5,337,125) $(3,847,633) N/A
=========== =========== ============
Pro forma basic and diluted net loss
per share (unaudited)................ $ (0.31) $ (0.22) N/A
=========== =========== ============
Basic and diluted common shares
outstanding.......................... 17,423,441 17,423,441 23,506,091
=========== =========== ============
|
See accompanying notes to financial statements
BEASLEY BROADCAST GROUP, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
Class Notes
A Class B Additional Receivable Net
Common Common Common Paid-In Accumulated Treasury From Stockholders'
Stock Stock Stock Capital Deficit Stock Stockholders Equity (Deficit)
------ ------- ----------- ------------ ------------ --------- ------------ ----------------
Balances as of December
31, 1997............... $ -- $ -- $ 4,530,352 $ 30,428,164 $ (7,280,337) $ -- $ (8,099,591) $ 19,578,588
Net loss................ -- -- -- -- (8,587,125) -- -- (8,587,125)
Capital contributions... -- -- -- 1,582,211 -- -- -- 1,582,211
Stockholder
distributions.......... -- -- -- -- (5,959,936) -- -- (5,959,936)
Purchase of common
stock.................. -- -- -- -- -- (548,600) -- (548,600)
Loans to stockholders... -- -- -- -- -- -- (1,206,446) (1,206,446)
Payments of notes
receivable from
stockholders........... -- -- -- -- -- -- 1,182,342 1,182,342
------ ------- ----------- ------------ ------------ --------- ------------ ------------
Balances as of December
31, 1998............... $ -- $ -- $ 4,530,352 $ 32,010,375 $(21,827,398) $(548,600) $ (8,123,695) $ 6,041,034
Net loss................ -- -- -- -- (6,051,633) -- -- (6,051,633)
Capital contributions... -- -- -- 2,764,553 -- -- -- 2,764,553
Stockholder
distributions.......... -- -- -- -- (4,938,993) -- -- (4,938,993)
Loans to stockholders... -- -- -- -- -- -- (734,282) (734,282)
------ ------- ----------- ------------ ------------ --------- ------------ ------------
Balances as of December
31, 1999............... $ -- $ -- $ 4,530,352 $ 34,774,928 $(32,818,024) $(548,600) $ (8,857,977) $ (2,919,321)
Net loss................ -- -- -- -- (1,897,079) -- -- (1,897,079)
Capital contributions... -- -- -- 100,000 -- -- -- 100,000
Stockholder
distributions.......... -- -- -- -- (2,250,000) -- -- (2,250,000)
Loans to stockholders... -- -- -- -- -- -- (910,263) (910,263)
------ ------- ----------- ------------ ------------ --------- ------------ ------------
Balances as of February
10, 2000............... $ -- $ -- $ 4,530,352 $ 34,874,928 $(36,965,103) $(548,600) $ (9,768,240) $ (7,876,663)
Distributions to and
contributions from
subchapter S
corporation
stockholders in
exchange for Class B
common stock........... -- 17,021 (4,530,352) (33,000,372) 36,965,103 548,600 -- --
Issuance of Class A
common stock........... 7,252 -- -- 99,002,648 -- -- -- 99,009,900
Initial public offering
costs.................. -- -- -- (2,613,336) -- -- -- (2,613,336)
Acquisitions of minority
interests.............. -- -- -- 8,370,064 -- -- -- 8,370,064
Payments of notes
receivable from
stockholders .......... -- -- -- -- -- -- 9,768,240 9,768,240
Net loss................ -- -- -- -- (27,700,608) -- -- (27,700,608)
------ ------- ----------- ------------ ------------ --------- ------------ ------------
Balances as of December
31, 2000............... $7,252 $17,021 $ -- $106,633,932 $(27,700,608) $ -- $ -- $ 78,957,597
====== ======= =========== ============ ============ ========= ============ ============
|
See accompanying notes to financial statements
BEASLEY BROADCAST GROUP, INC.
STATEMENTS OF CASH FLOWS
Combined Year Combined Consolidated
Ended Year Ended Year Ended
December 31, December 31, December 31,
1998 1999 2000
------------- ------------ -------------
Cash flows from operating
activities:
Net loss......................... $ (8,587,125) $(6,051,633) $ (29,597,687)
Adjustments to reconcile net loss
to net cash provided by
operating activities:
Depreciation and amortization.. 16,096,653 16,410,321 17,409,162
(Gain) loss on sale of property
and equipment................. -- 107,154 --
Unrealized loss on investment.. -- -- 2,400,000
Gain on sale of radio
stations...................... (4,028,013) -- --
Minority interest.............. (253,993) -- --
Change in assets and
liabilities net of effects of
acquisitions and dispositions
of radio stations:
Increase in receivables...... (782,146) (2,235,888) (1,728,793)
Increase in prepaid expense
and other................... (476,296) (625,890) (331,392)
Increase in intangibles...... (267,331) -- --
Increase in other assets..... (506,431) (475,304) (774,349)
Increase (decrease) in
payables and accrued
expenses.................... 3,725,220 66,425 (5,071,176)
Increase in deferred tax
liabilities................. -- -- 25,399,000
------------- ----------- -------------
Net cash provided by
operating activities....... 4,920,538 7,195,185 7,704,765
------------- ----------- -------------
Cash flows from investing
activities:
Expenditures for property and
equipment....................... (1,586,933) (2,025,425) (3,641,877)
Proceeds from sale of property
and equipment................... 1,700,000 -- --
Payments for acquisitions of
radio stations.................. (19,000,000) -- (34,780,000)
Proceeds from dispositions of
radio stations.................. 5,150,000 -- --
Payment for purchase of equity
investment...................... -- -- (50,002)
Decrease in restricted cash...... 1,250,000 -- --
Loans to related parties......... (16,325) -- --
Payments from related parties.... -- -- 556,796
Loans to stockholders............ (1,206,446) (734,282) (910,263)
Payments from stockholders....... 1,182,342 -- 9,768,240
------------- ----------- -------------
Net cash used in investing
activities................. (12,527,362) (2,759,707) (29,057,106)
------------- ----------- -------------
Cash flows from financing
activities:
Proceeds from issuance of
indebtedness.................... 135,040,061 -- 138,300,523
Principal payments on
indebtedness.................... (124,463,715) (161,994) (161,890,721)
Proceeds from issuance of related
party notes..................... 663,538 144,027 --
Principal payments on related
party notes..................... -- -- (47,723,076)
Payments for loan fees........... (1,625,000) -- (2,840,990)
Capital contributions............ 1,582,211 2,764,553 100,000
Stockholders distributions....... (5,959,936) (4,938,993) (2,250,000)
Issuance of common stock......... -- -- 99,009,900
Payments for initial public
offering costs.................. -- -- (2,613,336)
Purchase of common stock......... (548,600) -- --
------------- ----------- -------------
Net cash provided by (used
in) financing activities... 4,688,559 (2,192,407) 20,092,300
------------- ----------- -------------
Net increase (decrease) in cash
and cash equivalents............. (2,918,265) 2,243,071 (1,260,041)
Cash and cash equivalents at
beginning of year................ 7,677,863 4,759,598 7,002,669
------------- ----------- -------------
Cash and cash equivalents at end
of year.......................... $ 4,759,598 $ 7,002,669 5,742,628
============= =========== =============
Cash paid for interest............ $ 13,017,000 $12,853,000 12,052,995
============= =========== =============
Cash paid for taxes............... $ 22,000 $ 25,000 1,878,825
============= =========== =============
Supplement disclosure of non-cash
investing and financing
activities:
Financed purchases of equipment.. $ 35,649 $ -- $ --
============= =========== =============
Financed purchase of equity
investment...................... $ -- $ -- $ 3,000,000
============= =========== =============
Equity investment acquired
through placement of advertising
airtime......................... $ -- $ -- $ 873,727
============= =========== =============
Minority interests acquired
through issuance of Class A
common stock.................... $ -- $ -- $ 8,370,064
============= =========== =============
Principal payments on
indebtedness through placement
of advertising airtime.......... $ -- $ -- $ 1,770,060
============= =========== =============
Financed sale of property and
equipment to a related party.... $ -- $ -- $ 5,115,500
============= =========== =============
|
See accompanying notes to financial statements
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS
(1) Summary of Significant Accounting Policies
(a) Basis of Presentation and Corporate Reorganization
Beasley Broadcast Group, Inc. (the "Company") operates 36 radio stations with its primary source of revenue generated from the sale of advertising time to local and national spot advertisers and national network advertisers. All significant inter-company balances and transactions have been eliminated in presenting the Company's financial statements. The accompanying financial statements as of December 31, 1999 and for the years ended December 31, 1998 and 1999 are presented on a combined basis. The accompanying financial statements as of and for the year ended December 31, 2000 are presented on a consolidated basis.
Prior to February 11, 2000, the Company's radio stations were operated through a series of subchapter S corporations, partnerships and limited liability companies related to one another through common ownership and control. These subchapter S corporations, partnerships and limited liability companies were collectively known as Beasley FM Acquisition Corp. and related companies ("BFMA") through February 10, 2000. The accompanying financial statements reflect the financial position of BFMA as of December 31, 1999 and include the results of operations of BFMA from January 1, 2000 to February 10, 2000.
The number of shares authorized, issued and outstanding for Beasley FM Acquisition Corp. and related companies through February 10, 2000 is as follows:
Common
Stock
Outstanding
-----------
Beasley FM Acquisition Corp. common stock, no par value;
authorized 1,000 shares; issued and outstanding 1,000 shares..... $4,464,099
Beasley Broadcasting of Eastern North Carolina, Inc. common stock,
$1 par value; authorized 100,000 shares; issued and outstanding
50,000 shares.................................................... 50,000
CSRA Broadcasters, Inc. common stock, $100 par value; authorized
600 shares; issued and outstanding 100 shares.................... 10,000
W&B Media, Inc. common stock, $1 par value; authorized 100,000
shares; issued and outstanding 2,223 shares...................... 2,223
Beasley Broadcasting of Arkansas, Inc. common stock, $1 par value;
authorized 10,000 shares; issued and outstanding 1,000 shares.... 1,000
Beasley Broadcasting of Eastern Pennsylvania, Inc. common stock,
$1 par value; authorized 10,000 shares; issued and outstanding
1,000 shares..................................................... 1,000
Beasley Broadcasting of Southwest Florida, Inc. common stock, $1
par value; authorized 10,000 shares; issued and outstanding 1,000
shares........................................................... 1,000
Beasley Radio, Inc. common stock, $1 par value; authorized 10,000
shares; issued and outstanding 1,000 shares...................... 1,000
Beasley Broadcasting of Coastal Carolina, Inc. common stock, $.01
par value; authorized 1,000 shares issued and outstanding 1,000
shares........................................................... 10
Beasley Broadcasting of Augusta, Inc. common stock, $.01 par
value; authorized 1,000 shares; issued and outstanding 1,000
shares........................................................... 10
Beasley Communications, Inc. common stock, $.01 par value;
authorized 1,000 shares; issued and outstanding 1,000 shares..... 10
----------
$4,530,352
==========
|
The Company completed an initial public offering of common stock and the corporate reorganization on February 11, 2000. Immediately prior to the initial public offering, pursuant to the reorganization, affiliates of BFMA contributed their equity interests in those entities to the Company, a newly formed holding company, in
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
exchange for common stock. Immediately after these transactions, the Company contributed the capital stock and partnership interests acquired to Beasley Mezzanine Holdings, LLC ("BMH") and BMH became a wholly-owned subsidiary of the Company. All S corporation elections were terminated and the resulting entities became C corporations. The reorganization and contribution of equity interests was accounted for in a manner similar to a pooling of interests as to the majority owners, and as an acquisition of minority interest using the purchase method of accounting.
Proceeds from the initial public offering, net of underwriters discount of $7,165,100, were used as follows:
Repayment of the revolving credit loan......................... $58,508,421
Repayment of long-term debt, including accrued interest, to
related parties............................................... 38,228,843
Net repayment of payables and receivables, including accrued
interest, to related parties.................................. 2,272,636
-----------
Net proceeds................................................... $99,009,900
===========
|
The Company has two classes of common stock and may issue one or more series of preferred stock. In addition, the Company adopted an equity plan providing various stock based compensation awards. Class B common shares are held by majority stockholders of the former S corporations. Class A common shares were issued in the initial public offering including shares to former minority-interest stockholders. No shares of preferred stock were issued in the offering. The only difference between the Class A and Class B common stock is that Class A is entitled to one vote per share and Class B is entitled to ten votes per share. Class B is convertible into Class A shares on a one for one share basis under certain circumstances.
(b) Cash and Cash Equivalents
Cash and cash equivalents include demand deposits and short-term investments with an original maturity of three months or less.
(c) Program Rights
The total fixed cost of the contracts for the radio broadcast rights relating to the Miami Dolphins, Florida Marlins and Florida Panthers sports contracts is expensed on a straight-line basis in the quarters in which the programs are broadcast. Other payments are expensed when additional contract elements, such as post-season games, are paid for and broadcast.
(d) Property and Equipment
Property and equipment are stated at cost. Depreciation is calculated on the straight-line method over the estimated useful lives of the assets.
(e) Intangibles
Intangibles consist primarily of FCC broadcasting licenses, goodwill, advertising base, loan fees, noncompete agreements, and other intangibles which are amortized straight-line over their estimated useful lives.
(f) Impairment
The Company assesses the recoverability of intangibles and other long-lived assets on an ongoing basis based on estimates of related future undiscounted cash flows compared to net book value. If the future
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
undiscounted cash flow estimate is less than net book value, the net book value is reduced to the estimated fair value. The Company also evaluates the amortization and depreciation periods of intangibles and other long-lived assets to determine whether events or circumstances warrant revised estimates of useful lives.
(g) Derivative Financial Instruments
The Company has only limited involvement with derivative financial instruments and does not use them for trading purposes. The Company uses interest rate cap, collar and swap agreements to specifically hedge against the potential impact of increases in interest rates on the revolving credit loan. Interest differentials are recorded as adjustments to interest expense in the period they occur.
(h) Revenue Recognition
Revenue is recognized as advertising air time is broadcast and is net of advertising agency commissions.
(i) Barter Transactions
Trade sales are recorded at the fair value of the products or services received. For the years ended December 31, 1998, 1999 and 2000, trade sales were approximately $4,018,000, $4,449,000 and $8,147,000, respectively. For the years ended December 31, 1998, 1999 and 2000, trade expenses were approximately $3,481,000, $5,002,000 and $4,788,000, respectively.
(j) Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.
BFMA had elected to be treated as a subchapter S corporation under provisions of the Internal Revenue Code. Under this corporate status, the stockholders of BFMA were individually responsible for reporting their share of taxable income or loss. Accordingly, no deferred tax assets or liabilities have been reflected in the accompanying balance sheet as of December 31, 1999. Pro forma income tax benefit in the accompanying statements of operations for the years ended December 31, 1998 and 1999 includes pro forma income tax benefit computed in accordance with SFAS 109, Accounting for Income Taxes, as if BFMA had been subject to Federal and state income taxes for that period.
(k) Earnings per Share
Basic earnings per share are computed by dividing income available to common stockholders by the weighted average number of common shares outstanding for the period. Diluted earnings per share reflect the potential dilution that could occur if options or other contracts to issue common stock were exercised or converted into common stock and were not anti-dilutive.
Earnings per share for the years ended December 31, 1998 and 1999 and from January 1, 2000 to February 10, 2000 is based on the number of common shares issued immediately prior to the initial public offering.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(l) Stock-Based Compensation
Stock-based compensation is measured and recognized in accordance with APB Opinion 25, Accounting for Stock Issued to Employees and disclosed in accordance with SFAS 123, Accounting for Stock-Based Compensation.
(m) Segment Reporting
As of December 31, 2000 the Company operates two reportable segments comprised of 36 separate radio stations in the eastern United States. The reportable segments are in the radio broadcasting industry, providing a similar product to similar customers. Net revenues, consisting primarily of national and local advertising, are derived from external sources. The Company does not rely on any major customer as a source of net revenue. The Company identifies its reportable segments based on the operating management responsibility for the segment. The chief operating decision maker uses net revenues and broadcast cash flow as measures of profitability to assess segment profit or loss and to allocate resources between the two segments. The accounting policies of the segments are the same as those described in the summary of significant accounting policies.
(n) Defined Contribution Plan
The Company has a defined contribution plan that conforms with Section 401(k) of the Internal Revenue Code. Under this plan, employees may contribute a minimum of 1% of their compensation (no maximum) to the Plan. The Internal Revenue Code, however, limited contributions to $ 10,000 in 1998 and 1999 and $10,500 in 2000. There are no employer matching contributions.
(o) Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amount of revenues and expenses during the reporting period. Actual results could differ from these estimates. To the extent management's estimates prove to be incorrect, financial results for future periods may be adversely affected.
(p) Recent Accounting Pronouncements
In June 1998 the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative Instruments and Certain Hedging Activities." In June 2000 the FASB issued SFAS No. 138, "Accounting for Certain Derivative Instruments and Certain Hedging Activity, an Amendment of SFAS 133." SFAS No. 133 and SFAS No. 138 require that all derivative instruments be recorded on the balance sheet at their respective fair values. SFAS No. 133 and SFAS No. 138 are effective for all fiscal quarters of all fiscal years beginning after June 30, 2000; the Company adopted SFAS No. 133 and SFAS No. 138 on January 1, 2001. In accordance with the transition provisions of SFAS 133, the Company recorded an asset of $66,000 to recognize its derivatives at fair value.
In September 2000, the FASB issued SFAS No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities. SFAS 140 provides accounting and reporting standards for transfers and servicing of financial assets and extinguishments of liabilities. SFAS 140 replaces SFAS No. 125 and is effective for transfers and servicing of financial assets and extinguishments occurring after March 31, 2001. SFAS 140 is effective for recognition and reclassification of collateral and for disclosures relating to securitization transactions and collateral for fiscal years ending after December 15, 2000.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(2) Property and Equipment
Property and equipment, at cost, is comprised of the following:
December 31, Estimated
-------------------------- useful lives
1999 2000 (years)
------------ ------------ ------------
Land, buildings and
improvements........... $ 4,369,458 $ 5,466,559 31.5
Broadcast equipment..... 20,438,606 19,267,530 5
Transportation
equipment.............. 876,987 1,241,467 5
Office equipment and
other.................. 4,329,267 4,997,782 5-7
Construction in
progress............... 800,778 1,323,081 --
------------ ------------ ----
30,815,096 32,296,419
Less accumulated
Depreciation........... (15,041,921) (16,676,731)
------------ ------------
$ 15,773,175 $ 15,619,688
============ ============
|
(3) Intangibles
Intangibles, at cost, is comprised of the following:
December 31, Estimated
-------------------------- useful lives
1999 2000 (years)
------------ ------------ ------------
FCC broadcasting licenses........... $157,700,379 $188,307,206 10-15
Goodwill............................ 16,763,990 25,219,054 15
Advertising base.................... 4,139,251 4,139,251 5
Loan fees........................... 2,975,681 5,816,671 7
Noncompete agreements............... 1,120,000 1,120,000 2-8
Other intangibles................... 5,666,932 6,011,469 5-15
------------ ------------ -----
188,366,233 230,613,651
Less accumulated amortization....... (51,078,942) (65,720,067)
------------ ------------
$137,287,291 $164,893,584
============ ============
|
On February 11, 2000, the Company computed the fair value of minority stockholder interests based on the number of shares issued to the stockholders and the estimated net book values of the radio stations at the close of business on February 10, 2000. The computed amount of $8,370,064 was recorded using the purchase method of accounting and is included in goodwill and additional paid-in capital in the accompanying consolidated balance sheet as of December 31, 2000.
(4) Other Investments
In December 1999, the Company entered into an agreement to purchase 750,000 shares of preferred stock of eTour, Inc. in exchange for $3.0 million of advertising airtime. The Company will earn these shares as advertisements are placed over the term of the agreement. For the year ended December 31, 2000, eTour, Inc. placed advertising airtime totaling approximately $874,000 and for the year ended December 31, 2000, the Company earned approximately 218,000 shares. The shares contain restrictions that generally limit the Company's ability to sell or otherwise dispose of them. The investment was recorded using the cost method of accounting.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
On January 14, 2000, the Company purchased 600,000 shares of common stock of FindWhat.com in exchange for a $3.0 million promissory note. The shares contained restrictions that generally limit the Company's ability to sell or otherwise dispose of them. In January 2001, FindWhat.com filed a registration statement under the Securities Act pursuant to which the Company may resell its shares at prevailing market prices. The investment was initially recorded using the cost method of accounting. On December 31, 2000, the Company considered a decline in market value to be other than temporary and recorded an unrealized loss on this investment of approximately $2.4 million.
On April 4, 2000, the Company purchased 5,394 shares of preferred stock of iBiquity Digital for $50,002. The shares contain restrictions that generally limit the Company's ability to sell or otherwise dispose of them. The investment was recorded using the cost method of accounting.
(5) Long-Term Debt
Long-term debt consists of the following:
December 31,
--------------------------
1999 2000
------------ ------------
Revolving credit loan, see below for terms of
agreement..................................... $124,680,420 $102,236,261
Note payable to FindWhat.com, see below for
terms of note agreement....................... -- 1,229,940
Note payable to Georgia Bank and Trust, payable
in monthly payments of $3,500, including
interest at 8.5% per annum, maturing on
December 5, 2002.............................. 358,930 --
Note payable to Aiken Radio, Inc., payable in
monthly payments ranging from $4,167 to
$7,844, including interest at 10% per annum,
maturing in June 2003......................... 262,627 --
Note payable to G.R.R. Marketing, Inc., payable
in monthly payments of $5,592, including
interest at prime plus 1% per annum (9.5% at
December 31, 1999), maturing in February,
2005.......................................... 281,677 --
Note payable to Columbia County Broadcasters,
Inc., payable in quarterly payments of $7,062,
including interest at 8% per annum, maturing
on December 15, 2002.......................... 73,665 --
Note payable to SunTrust Bank, payable in
monthly payments of $893, including interest
at 8.68% per annum, maturing on March 15,
2002.......................................... 79,853 --
Note payable to Georgia Bank and Trust, payable
in monthly payments of $1,134, including
interest at 9.25% per annum, maturing on
December 22, 2001............................. 24,227 --
Note payable to Myer Feldman, payable in
monthly payments of $527, including interest
at 12% per annum, maturing on April 1, 2013... 42,155 --
Note payable to Georgia Bank and Trust, payable
in monthly payments of $648, including
interest at 8% per annum, maturing on January
25,2002....................................... 14,964 --
Capital lease obligations, payable in monthly
payments ranging from $399 to $532, including
interest ranging from 8% to 20% per annum,
maturing on various dates through April 27,
2003. The leases are secured by the leased
property...................................... 28,497 20,556
------------ ------------
125,847,015 103,486,757
Less current installments of long-term debt.... (166,319) (8,352)
------------ ------------
Long-term debt, less current installments...... $125,680,696 $103,478,405
============ ============
|
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
On August 31, 2000, the Company refinanced its $150.0 million revolving
credit loan. Under terms of the new credit agreement, the Company was provided
a credit facility with a maximum commitment of $300.0 million. The credit
facility includes a $150.0 million revolving credit loan and a $150.0 million
term loan. The revolving credit loan includes a $50.0 million sub-limit for
letters of credit. As of December 31, 2000, the maximum commitment under the
credit facility is $300.0 million and the outstanding balance is $102.2
million. The loans bear interest at either the base rate or LIBOR plus a margin
that is determined by the Company's debt to cash flow ratio. The base rate is
equal to the higher of the prime rate or the overnight federal funds effective
rate plus 0.5%. As of December 31, 1999, the old revolving credit loan carried
interest at an average rate of 7.95%. As of December 31, 2000, the new credit
facility carried interest at an average rate of 7.9375%. Interest is generally
payable monthly through maturity on June 30, 2008. The scheduled reductions in
the amount available under the credit facility may require principal repayments
if the outstanding balance at that time exceeds the new maximum amount
available under the credit facility. The Company must pay a quarterly unused
commitment fee, which is based upon its total leverage to operating cash flow
ratio and ranges from 0.25% to 0.375% of the unused portion of the maximum
commitment. For the years ended December 31, 1999 and 2000, our unused
commitment fee was approximately $96,000 and $284,000, respectively. The
Company has entered into interest rate hedge agreements as discussed in note
10. The credit agreement requires the Company to maintain certain financial
ratios and includes restrictive covenants. The restrictive covenants prohibit
the payment of dividends. The loans are secured by substantially all assets of
the Company.
As of December 31, 2000, the scheduled reductions of the maximum commitment of the credit facility for the next five fiscal years and thereafter are as follows:
Revolving Total Credit
Credit Loan Term Loan Facility
------------ ------------ ------------
2002.................................. $ -- $ 15,000,000 $ 15,000,000
2003.................................. -- 22,500,000 22,500,000
2004.................................. 15,000,000 22,500,000 37,500,000
2005.................................. 22,500,000 30,000,000 52,500,000
Thereafter............................ 112,500,000 60,000,000 172,500,000
------------ ------------ ------------
Total............................... $150,000,000 $150,000,000 $300,000,000
============ ============ ============
|
On January 14, 2000, the Company executed a $3.0 million promissory note in favor of FindWhat.com as consideration for the purchase of 600,000 shares of common stock. The note bears interest at 5.73% per annum and matures on January 14, 2002. All outstanding principal and accrued interest is due at maturity, however the Company may repay the note in full with an equivalent amount of advertising airtime as specified in the loan agreement and a related advertising agreement with FindWhat.com. As of December 31, 2000, the outstanding principal amount has been reduced by approximately $1,770,000 through the placement of advertising airtime. The note is guaranteed by BFMA.
On February 16, 2000, all long-term debt, except the revolving credit loan and capital lease obligations, was repaid in full. As of December 31, 2000, scheduled payments of the capital lease obligations are as follows: $8,352 in 2001, $9,045 in 2002 and $3,159 in 2003.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(6) Long-Term Debt to Related Parties
Long-term debt to related parties consists of the following:
December 31,
-------------------------
1999 2000
------------ -----------
7.67% notes payable to affiliate Beasley
Broadcasting of Philadelphia, Inc., interest-
only payments are due annually, principal and
any unpaid interest due August 11, 2004....... $25,699,530 $ --
7.67% notes payable to affiliate Beasley-Reed
Broadcasting of Miami, Inc., interest-only
payments are due annually, principal and any
unpaid interest due August 11, 2004........... 11,576,092 --
------------ -----------
$ 37,275,622 $ --
============ ===========
|
For each of the years ended December 31, 1998 and 1999, interest expense on long-term debt to related parties was approximately $2,859,000. On February 16, 2000, all long-term debt to related parties was repaid in full.
(7) Acquisitions and Dispositions
Station acquisitions, including tax-deferred exchanges were accounted for by the purchase method for financial statement purposes, and accordingly, the purchase price has been allocated to the assets acquired based on their estimated fair market values at the date of the acquisition. A substantial portion of each purchase price was allocated to intangible assets to reflect the FCC broadcasting licenses acquired. These FCC broadcasting licenses are being amortized over 15 years using the straight-line basis. The excess of the purchase price over the fair value of the net assets acquired has been recorded as goodwill and is being amortized over 15 years using the straight-line basis. No liabilities were assumed by the Company as a result of these acquisitions. Operations of acquired stations have been included in the combined results of the Company since the acquisition date of each such station.
(a) 2000 Acquisitions and Dispositions
. On January 6, 2000, the Company acquired the assets of WAEC-AM and WWWE- AM in the Atlanta market for approximately $10.0 million. This acquisition was financed through the Company's credit facility and accounted for by the purchase method of accounting.
. On May 2, 2000, the Company acquired the assets of WRCA-AM in the Boston market for approximately $6.0 million. This acquisition was financed through the Company's credit facility and accounted for by the purchase method of accounting.
. On May 3, 2000 the Company acquired the assets of WRFN-FM and WRDW-AM in the Augusta market for approximately $0.8 million. This acquisition was funded by surplus working capital and accounted for by the purchase method of accounting.
. On June 2, 2000 the Company acquired the assets of WHSR-AM and WWNN-AM in the Miami-Ft. Lauderdale market and WSBR-AM in the West Palm Beach market for approximately $18.0 million. This acquisition was financed through the Company's credit facility and accounted for by the purchase method of accounting.
. There were no dispositions during 2000.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(b) 1999 Acquisitions and Dispositions
. There were no acquisitions or dispositions during 1999.
(c) 1998 Acquisitions and Dispositions
. On February 11, 1998, BFMA acquired the assets of WJBX-FM in the Ft. Myers-Naples market for approximately $6,000,000. This acquisition was finance through the Company's credit facility and accounted for by the purchase method.
. On February 11, 1998, Beasley Radio, Inc. acquired the assets of WJST-FM in the Ft. Myers-Naples market for approximately $5,000,000. This acquisition was finance through the Company's credit facility and accounted for by the purchase method.
. On December 1, 1998, Beasley Broadcasting of Arkansas, Inc. ("BBA") acquired the assets of WTMR-AM in the Philadelphia market for approximately $8,000,000. This acquisition was finance through the Company's credit facility and accounted for by the purchase method.
. BBA sold substantially all of the assets of KAAY-AM to Citadel Broadcasting Company on November 17, 1998. Net proceeds from the sale were approximately $5,000,000, which resulted in a gain of approximately $4,356,000.
. BFMA sold substantially all of the assets of WEWO-AM to Service Media, Inc. on August 1, 1998. Net proceeds from the sale were approximately $150,000, which resulted in a loss of approximately $328,000.
For tax purposes, the sale of KAAY-AM and the acquisition of WTMR-AM were treated as a tax-deferred exchange under Section 1031 of the Internal Revenue Code to a substantial extent.
For tax purposes, the sale of WEGX-FM and WDSC-AM and the acquisition of WJBX-FM were treated as a tax-deferred exchange under Section 1031 of the Internal Revenue Code.
Acquisitions for the years ended December 31, 1998 and 2000 are summarized as follows:
Year ended December 31
-----------------------
1998 2000
----------- -----------
Property and equipment.............................. $ 1,499,641 $ 4,088,173
Other assets........................................ 2,142 --
FCC broadcasting licenses........................... 17,226,517 30,606,827
Goodwill............................................ 271,700 85,000
----------- -----------
Payments for purchase of radio stations............. $19,000,000 $34,780,000
=========== ===========
|
Dispositions for the year ended December 31, 1998 are summarized as follows:
Proceeds from sale of stations................................... $5,150,000
Accounts receivable, net......................................... (5,720)
Prepaid expenses and other....................................... --
Property and equipment, net...................................... (797,915)
Intangibles, net................................................. (193,755)
Trade sales, net................................................. --
Selling expenses................................................. (124,597)
----------
Gain on sale of radio stations................................... $4,028,013
==========
|
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(d) Unaudited Pro Forma Results of Operations
The following unaudited pro forma information presents the results of operations for the years ended December 31, 1999 and 2000, with pro forma adjustments as if the acquisitions of the stations had occurred on January 1, 1999.
This unaudited pro forma information is not necessarily indicative of what would have occurred had the acquisitions occurred on January 1, 1999 or of results that may occur in the future.
Combined Consolidated
Year Ended Year Ended
December December 31,
31, 1999 2000
----------- ------------
Net revenues..................................... $99,155,267 $107,839,154
----------- ------------
Costs and expenses:
Program and production......................... 27,653,609 28,052,654
Sales and advertising.......................... 25,437,289 28,322,798
Station general and administrative............. 15,604,600 15,885,704
Corporate general and administrative........... 2,764,216 3,991,535
Equity appreciation rights..................... 606,407 1,173,759
Format change expenses......................... -- 1,545,547
Depreciation and amortization.................. 18,846,988 18,101,744
----------- ------------
Total costs and expenses..................... 90,913,109 97,073,741
----------- ------------
Operating income............................... 8,242,158 10,765,413
Other income (expense):
Interest expense............................... (16,711,312) (9,579,639)
Unrealized loss on investment.................. -- (2,400,000)
Other non-operating expenses................... (107,154) (310,754)
Interest income................................ 883,704 446,197
Other non-operating income..................... -- 168,383
----------- ------------
Loss before income taxes..................... $(7,692,604) $ (910,400)
Income tax expense............................... -- 28,878,000
----------- ------------
Net loss..................................... $(7,692,604) $(29,788,400)
=========== ============
Basic and diluted net loss per share............. $ -- $ (1.27)
=========== ============
Pro forma income tax benefit..................... $(2,838,000) $ --
=========== ============
Pro forma net loss............................... $(4,854,604) $ --
=========== ============
Pro forma basic and diluted net loss per share... $ (0.28) $ --
=========== ============
Basic and diluted common shares outstanding...... 17,423,441 23,506,091
=========== ============
|
(e) Subsequent and Pending Acquisitions
. On January 31, 2001, the Company acquired all of the outstanding common stock of Centennial Broadcasting Nevada, Inc. and all of the membership interests in Centennial Broadcasting, LLC for an aggregate purchase price, subject to certain adjustments, of approximately $113.5 million. Centennial Broadcasting Nevada, Inc. owns approximately 18.5% of the membership interests in Centennial Broadcasting, LLC. Centennial Broadcasting, LLC owns the radio stations KJUL-FM, KSTJ-FM and KKLZ-FM in Las Vegas, Nevada and WBYU-AM, WRNO-FM and KMEZ-FM in New Orleans,
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
Louisiana. This acquisition was financed through the Company's credit facility and accounted for by the purchase method of accounting.
. On November 13, 2000, the Company entered into an agreement to acquire WKXC-FM and WSLT-FM in Augusta, Georgia for approximately $12.0 million.
(8) Related Party Transactions
The Company had a management agreement with Beasley Broadcasting Management Corp., an affiliate of the Company's principal stockholder, George G. Beasley. For the years ended December 31, 1998 and 1999, management fee expense under the agreement was approximately $2,498,000 and $2,764,000, respectively. From January 1, 2000 to February 10, 2000, management fee expense under the agreement was approximately $447,000.
The Company leases certain office space from its principal stockholder, George G. Beasley. For the years ended December 31, 1998, 1999 and 2000, rental expense paid to Mr. Beasley was approximately $77,000, $96,000 and $96,000, respectively.
Distributions to stockholders of the S corporations during the years ended December 31, 1998 and 1999 were $5,959,936 and $4,938,993, respectively. From January 1, 2000 to February 10, 2000, distributions to stockholders of BFMA were approximately $2,250,000.
Notes receivable from related parties as of December 31, 1999 were repaid in full on February 16, 2000. On December 28, 2000, the Company sold all of its radio towers and related real estate assets to Beasley Family Towers, Inc. ("BFT") for approximately $5.1 million. The Company received unsecured notes payable from BFT, which are due in monthly payments including interest at the applicable federal rate. The notes mature on December 28, 2020. In connection with this transaction, the Company entered into agreements to lease the radio towers from BFT. The lease agreements expire on December 28, 2020. As of December 31, 2000, future minimum lease payments to related parties for the next five years and thereafter are summarized as follows:
2001............................................................ $ 467,000
2002............................................................ 467,000
2003............................................................ 467,000
2004............................................................ 467,000
2005............................................................ 467,000
Thereafter...................................................... 7,015,000
----------
Total......................................................... $9,350,000
==========
|
Notes payable to related parties bore interest at 7.67% to 9.25% and were repaid in full on February 16, 2000. For the years ended December 31, 1998 and 1999, interest expense on notes payable to related parties was approximately $666,000 and $642,000, respectively. From January 1, 2000 to February 10, 2000, interest expense on notes payable to related parties was approximately $80,000.
Notes receivable from stockholders bear interest at 9.25% and were repaid in full on February 16, 2000. For the years ended December 31, 1998 and 1999, interest income on notes receivable from related parties was approximately $618,000 and $707,000, respectively. From January 1, 2000 to February 16, 2000, interest income on notes receivable from related parties was approximately $135,000.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(9) Commitments and Contingencies
In 1997, the Company entered into contracts for the radio broadcast rights relating to the Miami Dolphins, Florida Marlins and Florida Panthers sports franchises. These contracts grant WQAM-AM the exclusive, English language rights for live radio broadcasts of the sporting events of these franchises for a five-year term that began in 1997. The contracts require the Company to pay certain fees and to provide commercial advertising and other considerations. As of December 31, 2000, remaining payments of fees are as follows: $8,844,000 in 2001 and $359,000 in 2002. For the years ended December 31, 1998, 1999 and 2000, the contract expense calculated on a straight-line basis and other direct expenses exceeded related revenues by $3,617,000, $2,770,000 and $4,034,000, respectively. Unless the Company is able to generate significantly more revenues under these contracts in future periods, the contracts are likely to have a material adverse effect on the Company's results of operations on a going-forward basis. However, in light of the uncertainty regarding future revenues, the amount of any future loss cannot be determined at this time.
The Company leases property and equipment from third parties under one- to ten-year operating leases. For the years ended December 31, 1998, 1999 and 2000, lease expense was approximately $1,503,000, $1,815,000 and $2,052,000, respectively. As of December 31, 2000, future minimum lease payments to third parties for the next five years and thereafter are summarized as follows:
2001............................................................ 1,673,000
2002............................................................ 1,211,000
2003............................................................ 1,171,000
2004............................................................ 1,141,000
2005............................................................ 988,000
Thereafter...................................................... 3,510,000
----------
Total......................................................... $9,694,000
==========
|
The Company had employment agreements with two radio station managers that contained provisions allowing the station manager to participate in the gain on the sale of the station managed in the event it is sold, and while the station manager was still employed by the Company. In addition, these agreements provided that upon the occurrence of certain liquidity events the station manager would be paid a percentage of the increase in value of the station managed upon completion of the offering. On February 16, 2000, the Company paid approximately $1.2 million to the station managers as a result of the initial public offering.
In the normal course of business, the Company is party to various legal matters. The ultimate disposition of these matters will not, in management's judgment, have a material adverse effect on the Company's financial position.
(10) Derivative Financial Instruments
The Company uses interest rate collar and swap agreements to hedge against the potential impact of increases in interest rates on the revolving credit loan. For the years ended December 31, 1998 and 2000, the Company received additional interest of approximately $11,000 and $113,000, respectively. For the year ended December 31, 1999, the Company paid additional interest of approximately $87,000. The amount received or paid is based on the differential between the specified rate of the swap agreements and the variable interest rate of the revolving credit loan. There was no additional interest paid or received under the collar agreements.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
In February 2001, one interest rate swap and one interest rate collar were canceled and we purchased another interest rate collar. As of February 13, 2001, our collar agreements are summarized as follows:
Notional Expiration
Agreement Amount Floor Cap Date
--------- ----------- ----- ---- -------------
Interest rate collar..................... $20,000,000 6.69% 8% May 2002
Interest rate collar..................... $20,000,000 5.45% 7.5% November 2002
Interest rate collar..................... $20,000,000 5.75% 7.35% November 2002
Interest rate collar..................... $55,000,000 4.99% 7% October 2003
|
(11) Fair Value of Financial Instruments
The Company's significant financial instruments and the methods used to estimate their fair values are as follows:
. Notes receivable from related parties--It is not practicable to estimate the fair value of notes receivable from related parties due to their related party nature.
. Other investments--The fair value is estimated using quoted market prices where available and using management's best estimate where quoted market prices are unavailable.
. Revolving credit loan--The fair value approximates carrying value due to the interest rate being based on current market rates.
. Notes payable to related parties--It is not practicable to estimate the fair value of notes payable to related parties due to their related party nature.
. Hedge agreements--The Company has entered into various agreements to hedge against the potential impact of increases in interest rates on the revolving credit loan. These agreements as of December 31, 2000 are summarized as follows:
Estimated
Notional Expiration Fair
Agreement Amount Floor Cap Swap Date Value
--------- ----------- ----- ---- ---- ------------- ---------
Interest rate collar..... $20,000,000 6.69% 8% -- May 2002 $(1,000)
Interest rate collar..... 20,000,000 5.85% 7.5% -- October 2002 --
Interest rate swap....... 20,000,000 -- -- 6.48% October 2002 67,000
Interest rate collar..... 20,000,000 5.45% 7.5% -- November 2002 --
Interest rate collar..... 20,000,000 5.75% 7.35% -- November 2002 --
|
The Company is exposed to credit loss in the event of nonperformance by the other parties to the agreements. The Company, however, does not anticipate nonperformance by the counterparties. The fair value of the interest rate swap agreements is estimated using the difference between the present value of discounted cash flows using the base rate stated in the swap agreement and the present value of discounted cash flows using the LIBOR rate at December 31, 2000. The fair values of the interest rate collar agreements are estimated based on the amounts the Company would expect to receive or pay to terminate the agreement.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(12) Income Taxes
Pro forma income tax benefit from continuing operations for the years ended December 31, 1998 and 1999 and income tax expense for the year ended December 31, 2000 from continuing operations is as follows:
Year ended December 31,
-------------------------------------
1998 1999
(Unaudited) (Unaudited) 2000
----------- ----------- -----------
Federal:
Current.............................. $(4,102,000) $ 567,000 $ 2,489,000
Deferred............................. 1,441,000 (2,371,000) 20,796,000
----------- ----------- -----------
(2,661,000) (1,804,000) 23,285,000
State:
Current.............................. (908,000) 125,000 1,109,000
Deferred............................. 319,000 (525,000) 4,604,000
----------- ----------- -----------
(589,000) (400,000) 5,713,000
----------- ----------- -----------
$(3,250,000) $(2,204,000) $28,998,000
=========== =========== ===========
|
Pro forma income tax benefit for the years ended December 31, 1998 and 1999 and income tax expense for the year ended December 31, 2000 differ from the amounts that would result from applying the federal statutory rate of 34% to the Company's loss before income taxes, as follows:
Year ended December 31,
-------------------------------------
1998 1999
(Unaudited) (Unaudited) 2000
----------- ----------- -----------
Expected tax benefit................. $(2,920,000) $(2,058,000) $ (204,000)
State income taxes, net of federal
benefit............................. (397,000) (280,000) 532,000
Establishment of deferred tax assets
and liabilities upon conversion from
a subchapter S corporation to a
subchapter C corporation on February
11, 2000............................ -- -- 28,297,000
Non-deductible amortization of
minority interest acquisitions...... -- -- 194,000
Other................................ 67,000 134,000 179,000
----------- ----------- -----------
$(3,250,000) $(2,204,000) $28,998,000
=========== =========== ===========
|
Temporary differences that give rise to the components of pro forma deferred tax assets and liabilities, are as follows:
December 31,
--------------------------
1999
(Unaudited) 2000
------------ ------------
Allowance for doubtful accounts................ $ 2,623,000 $ 176,000
Unrealized loss on investment.................. -- 927,000
Accrued interest on notes receivable from
related parties............................... 1,457,000 --
Notes receivable from related parties.......... 478,000 --
------------ ------------
Gross deferred tax assets.................... 4,558,000 1,103,000
Intangibles.................................... (27,929,000) (25,633,000)
Property and equipment......................... (1,113,000) (869,000)
------------ ------------
Gross deferred tax liabilities............... (29,042,000) (26,502,000)
------------ ------------
Net deferred tax liabilities................. $(24,484,000) $(25,399,000)
============ ============
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BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(13) Segment Information
Segment information, in thousands of dollars for the years ended December 31, 1998, 1999 and 2000 are as follows:
December 31,
----------------------------
1998 1999 2000
-------- -------- --------
Total assets:
Radio Group One............................ $ 97,530 $ 97,802 $117,790
Radio Group Two............................ 97,243 88,059 100,369
-------- -------- --------
Total...................................... $194,773 $185,861 $218,159
======== ======== ========
Year ended December 31,
----------------------------
1998 1999 2000
-------- -------- --------
Net revenues:
Radio Group One............................ $ 50,825 $ 59,798 $ 68,984
Radio Group Two............................ 30,608 33,823 37,170
-------- -------- --------
Total...................................... 81,433 93,621 106,154
-------- -------- --------
Broadcast cash flow:
Radio Group One............................ $ 10,922 $ 18,116 $ 21,382
Radio Group Two............................ 8,820 8,845 13,047
-------- -------- --------
Total...................................... 19,742 26,961 34,429
-------- -------- --------
Reconciliation to net loss before income
taxes:
Corporate general and administrative
expenses.................................. $ (2,498) $ (2,764) $ (3,992)
Equity appreciation rights................. -- (606) (1,174)
Format change expenses..................... -- -- (1,545)
Depreciation and amortization.............. (16,097) (16,410) (17,409)
Interest expense........................... (13,602) (14,008) (8,813)
Unrealized loss on investment.............. -- -- (2,400)
Other non-operating income (expense)....... (160) 775 304
Gain on sale of radio stations............. 4,028 -- --
-------- -------- --------
Net loss before income taxes............... $ (8,587) $ (6,052) $ (600)
======== ======== ========
|
Radio Group One includes radio stations located in Miami-Ft. Lauderdale, FL, Ft. Myers-Naples, FL, West Palm Beach, FL and Greenville-New Bern-Jacksonville, NC. Radio Group Two includes radio stations located in Atlanta, GA, Philadelphia, PA, Boston, MA, Fayetteville, NC and Augusta, GA.
Broadcast cash flow consists of operating income before corporate general and administrative expenses, equity appreciation rights, and depreciation and amortization.
(14) Equity Plan
On February 11, 2000, the Company adopted The 2000 Equity Plan of Beasley Broadcast Group, Inc. (the "Plan"). A total of 3,000,000 shares of Class A common stock were reserved for issuance under the Plan, of which 2,500,000 stock options were granted on February 11, 2000 with an exercise price per share equal to the initial public offering price. All stock options have ten- year terms and generally vest and become fully exercisable after a period of three to four years from the date of grant, however some contain performance- related provisions that may delay vesting beyond four years.
BEASLEY BROADCAST GROUP, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
As of December 31, 2000, there were 418,000 additional shares available for
grant under the Plan. The per share weighted-average fair value of stock
options granted during 2000 was $8.85 on the date of grant using the Black
Scholes option-pricing model with the following weighted-average assumptions:
expected life of 7 years, expected volatility of 50%, risk-free interest rate
of 5.11% to 5.33%, and no expected dividend yield.
The Company applies APB Opinion No. 25 in accounting for its Plan and, accordingly, no compensation cost has been recognized for its stock options in the financial statements. Had the Company determined compensation cost based on the fair value at the grant date for its stock options under SFAS No. 123, the Company's net loss for the year ended December 31, 2000 would have been increased to the pro forma amounts indicated below:
Net loss: As reported................................................. $(29,597,687) Pro forma................................................... (33,071,326) Net loss per share: Basic and diluted........................................... (1.26) Pro forma basic and diluted................................. (1.41) |
Stock option activity during the periods indicated is as follows:
Weighted-
Average
Number of Exercise
Shares Price
--------- ---------
Balance as of February 11, 2000......................... -- --
Granted............................................... 2,607,000 $15.26
Exercised............................................. -- --
Forfeited............................................. (25,000) 15.50
Expired............................................... -- --
--------- ------
Balance as of December 31, 2000......................... 2,582,000 $15.26
========= ======
|
As of December 31, 2000, the range of exercise prices and weighted-average remaining contractual life of outstanding options was $7.87--$15.50 and 9.7 years, respectively.
As of December 31, 2000, the number of options exercisable was 49,438 and the weighted-average exercise price of those options was $14.32.
(15) Subsequent Event
On December 29, 1998, the Company filed a lawsuit in the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade County, against the Florida Marlins Inc., Florida Marlins Baseball Team, Ltd., and Front Row Communications for breach of contract and other related claims. The lawsuit is based on actions taken by the Florida Marlins major league baseball team to trade or release key players of the Marlins after the 1997 season, thereby transforming the Marlins into a non-competitive team. On January 14, 2000, the court dismissed the Marlins' motion for summary judgment. On May 22, 1999, the Marlins countersued for breach of contract. On January 10, 2001, the Company settled both lawsuits with the other parties with no material impact on the accompanying financial statements.
BEASLEY BROADCAST GROUP, INC.
FINANCIAL STATEMENT SCHEDULE
VALUATION AND QUALIFYING ACCOUNTS
Years ended December 31, 1998, 1999 and 2000
Column B Column E
Balance Column C Balance
at Provision Column D at End
Beginning for Bad Charge of
Column A Description of Period Debts Offs Period
-------------------- --------- --------- --------- --------
Year ended December 31, 1998:
Allowance for doubtful accounts....... 1,092,000 1,129,211 1,631,859 589,352
Year ended December 31, 1999:
Allowance for doubtful accounts....... 589,352 803,074 832,144 560,282
Year ended December 31, 2000:
Allowance for doubtful accounts....... 560,282 1,673,939 1,627,074 607,147
|
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following table provides information concerning our directors and executive officers.
Name Age Position
---- --- --------
George G. Beasley....... 68 Chairman and Chief Executive Officer
Bruce G. Beasley........ 43 President, Co-Chief Operating Officer and Director
Allen B. Shaw........... 57 Vice Chairman and Co-Chief Operating Officer
B. Caroline Beasley..... 38 Vice President, Chief Financial Officer, Secretary,
Treasurer and Director
Brian E. Beasley........ 41 Vice President of Operations and Director
Joe B. Cox.............. 61 Director
Mark S. Fowler.......... 59 Director
Herbert W. McCord....... 58 Director
|
George G. Beasley founded Beasley Broadcast Group in 1961 and has served since inception as the Company's Chairman and Chief Executive Officer. Mr. Beasley served on the North Carolina Association of Broadcasters' Board of Directors for eight years and has served that Association as President and Vice President. Mr. Beasley was awarded the Distinguished Broadcaster of North Carolina Award in 1988. Mr. Beasley has a B.A. and M. A. from Appalachian State University. George G. Beasley is the father of Bruce G. Beasley, B. Caroline Beasley and Brian E. Beasley.
Bruce G. Beasley has served as the Company's President and Chief Operating Officer since 1997 and as a director since 1980. He began his career in the broadcasting business with Beasley Broadcast Group in 1975 and since that time has served in various capacities including General Sales Manager of a radio station, General Manger of a radio station and Vice President of Operations of Beasley Broadcast Group. Currently, Mr. Beasley oversees the operation of all radio stations. Mr. Beasley serves on the Boards of Directors of the North Carolina Association of Broadcasters and the Radio Advertising Bureau. Mr. Beasley has a B.S. from East Carolina University. Mr. Beasley is the son of George G. Beasley and the brother of B. Caroline Beasley and Brian E. Beasley.
Allen B. Shaw joined Beasley Broadcast Group as the Vice Chairman of the Board of Directors and Co-Chief Operating Officer in February 2001 as part of the Company's acquisition of Centennial Broadcasting. From 1990 to February 2001, Mr. Shaw was the President and Chief Executive Officer of Centennial Broadcasting. Mr. Shaw previously served as the Chief Operating Officer of Beasley from 1985 to 1990.
Caroline Beasley has served as the Company's Vice President, Chief Financial Officer and Secretary since 1994 and as a director since 1983. She joined Beasley Broadcast Group in 1983 and since that time has served in various capacities including Business Manager, Assistant Controller and Corporate Controller. Ms. Beasley is a member of the Broadcast and Cable Financial Management Association. Ms. Beasley has a B.S. from the University of North Carolina at Chapel Hill. Ms. Beasley is the daughter of George G. Beasley and the sister of Bruce G. Beasley and Brian E. Beasley.
Brian E. Beasley has served as the Company's Vice President of Operations since 1997 and as a director since 1982. He began his career in broadcasting during high school in 1977. He joined Beasley full-time in 1982 as General Manager of the previously-owned cable TV division. In 1985, he became Senior Account Executive to a radio station. Since that time, Mr. Beasley has served as General Manger to three different radio stations and most recently has been named Vice President of Operations. Mr. Beasley has a B.S. from East Carolina University. Mr. Beasley is the son of George G. Beasley and the brother of Bruce G. Beasley and B. Caroline Beasley.
Joe B. Cox has been a director of Beasley Broadcast Group since February 2000. Mr. Cox is a partner at the law firm of Cummings and Lockwood. Mr. Cox has practiced law for 34 years, primarily in the tax, corporate and estate law areas. Mr. Cox is a director of Citizens National Bank.
Mark S. Fowler, age 59, has been a director of Beasley Broadcast Group since February 2000. Mr. Fowler was of counsel at the law firm of Latham & Watkins from 1987 to December 31, 2000. Mr. Fowler has served as Chairman of UniSite, Inc. since 1994 and Chairman of Assure Sat, Inc. since 1997. Mr. Fowler is also a director of Pac-West Telecom, Inc. and Talk.com, Inc. Mr. Fowler served as Chairman of the FCC from 1981 until 1987.
Herbert W. McCord, age 58, has been a director of Beasley Broadcast Group since May 2000. Mr. McCord currently is President of Granum Communications Corporation, a management consulting firm specializing in the radio industry, which he founded in 1991. Prior to starting Granum, Mr. McCord worked in the radio industry at the station and management levels for over twenty years. Mr. McCord serves as a member of the Executive Committee for the Board of Directors of the Radio Advertising Bureau.
Committees Of The Board Of Directors
Our Board of Directors has established an Audit Committee and a Compensation Committee.
Audit Committee. The Audit Committee consists of Messrs. Cox, Fowler and McCord. The responsibilities of the audit committee include:
. recommending to the Board of Directors independent public accountants to conduct the annual audit of our financial statements;
. reviewing the proposed scope of the audit and approving the audit fees to be paid;
. reviewing the Company's accounting and financial controls with the independent public accountants and our financial and accounting staff; and
. reviewing and approving transactions, other than compensation matters ,between us and our directors, officers and affiliates.
Compensation Committee. The Compensation Committee consists of Messrs. Cox, Fowler, and McCord. This Committee provides a general review of the Company's compensation plans to ensure that they meet corporate objectives. The responsibilities of the compensation committee also include administering and interpreting The 2000 Equity Plan of Beasley Broadcast Group.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's officers and directors, and persons who own more than ten percent of a registered class of the Company's stock to file reports of ownership and changes in ownership with the Securities and Exchange Commission. Officers, directors and greater than ten percent stockholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) reports they file.
Based solely on its review of the copies of such reports and upon written representations from certain reporting persons, the Company believes that, for the year ended December 31, 2000, all Section 16(a) filing requirements applicable to the Company's officers, directors and greater than ten percent stockholders were complied with on a timely basis, except Mr. McCord's Form 3, Initial Statement of Beneficial Ownership of Securities, the George Beasley Grantor Retained Annuity Trust's Form 3, Initial Statement of Beneficial Ownership of Securities, the George Beasley Estate Reduction Trust's Form 3, Initial Statement of Beneficial Ownership of Securities, and Mr. Brian E. Beasley's Form 4, Statement of Changes of Beneficial Ownership of Securities, reporting one transaction.
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth certain annual compensation information for Beasley's Chief Executive Officer and the other four most highly paid executive officers of Beasley whose annual salary exceeded $100,000 as of December 31, 2000 (collectively, the "Named Officers").
Summary Compensation Table
Annual compensation
-----------------------------
Name and principal Other annual All other
position Year Salary Bonus compensation compensation
------------------ ---- -------- ------- ------------ ------------
George G. Beasley..............
Chairman and Chief Executive 2000 $490,081 -- -- $306,212*
Officer 1999 434,094 -- -- 285,549*
Bruce G. Beasley...............
President and Co-Chief 2000 $320,965 -- -- --
Operating Officer 1999 300,365 -- -- --
Caroline Beasley............... 2000 $266,985 $50,000 -- --
Chief Financial Officer 1999 222,599 -- -- --
Brian E. Beasley............... 2000 $295,622 -- -- --
Vice President of Operations 1999 266,259 -- -- --
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The following table sets forth certain information with respect to stock option to purchase shares of the Company's common stock awarded during the fiscal year ended December 31, 2000 to the Named Officers.
Option Grants In Fiscal Year 2000
Individual Grants
----------------------------------------------
Number of Percent of
securities total options Total
underlying granted to Exercise grant date
options employees in price Expiration present
Name granted fiscal year(1) ($/share) date value(2)
---- ---------- -------------- --------- ---------- --------------
George G. Beasley....... 487,500 18.7% $15.50 2/11/10 $4,382,625
Bruce G. Beasley........ 487,500 18.7 15.50 2/11/10 4,382,625
Caroline Beasley........ 487,500 18.7 15.50 2/11/10 4,382,625
Brian E. Beasley........ 487,500 18.7 15.50 2/11/10 4,382,625
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Employment Agreements
George G. Beasley Employment Agreement. The Company entered into a three year employment agreement with George G. Beasley effective as of January 31, 2000 pursuant to which he serves as our Chief Executive Officer and Chairman of the board of directors. Mr. Beasley receives an annual base salary of $500,000 subject to an annual increase of not less than 5%, and an annual cash bonus at the discretion of the board of directors. Mr. Beasley also received an option to purchase 487,500 shares of our Class A common stock under the Company's 2000 equity plan at an exercise price equal to $15.50. This option vests over the term of the employment agreement. The Company could incur severance obligations under the terms of the employment agreement in the event that Mr. Beasley's employment is terminated without cause or if he resigns for good reason.
Bruce G. Beasley Employment Agreement. The Company entered into a three year employment agreement with Bruce G. Beasley effective as of January 31, 2000 pursuant to which he serves as the President and Chief Operating Officer. Mr. Beasley receives an annual base salary of $325,000 subject to an annual increase of not less than 5% and an annual cash bonus at the discretion of the board of directors. Mr. Beasley also received an option to purchase 487,500 shares of the Company's Class A common stock under the 2000 equity plan at an exercise price equal to $15.50. This option vests over the term of the employment agreement. The Company could incur severance obligations under the terms of the employment agreement in the event that Mr. Beasley's employment is terminated without cause or if he resigns for good reason.
Allen B. Shaw Employment Agreement. The Company entered into a three year employment agreement with Allen Shaw pursuant to which he will serve as our Co- Chief Operating Officer and Vice Chairman of our board of directors. Mr. Shaw will receive an annual base salary of $322,350, subject to an annual increase of not less than 5%, and an annual cash bonus at the discretion of the board of directors. Mr. Shaw also received an option to purchase 50,000 shares of our Class A common stock on February 1, 2001 under our 2000 equity plan at an exercise price equal to the closing price of BBGI Class A common stock on the day before the grant. The option vests on February 1, 2011, but may become exercisable earlier, on the anniversary date of the date of grant, if certain material conditions are satisfied (33% each time a material condition is satisfied). We could incur severance obligations under the expected terms of the employment agreement in the event that Mr. Shaw's employment is terminated without cause or if he resigns for good reason.without cause or if he resigns for good reason.
Caroline Beasley Employment Agreement. The Company entered into a three year employment agreement with Caroline Beasley pursuant to which she serves as the Chief Financial Officer. Ms. Beasley receives an annual base salary of $275,000 subject to an annual increase of not less than 5%, and an annual cash bonus at the discretion of the board of directors. Ms. Beasley also receive an option to purchase 487,500 shares of the Company's Class A common stock under the 2000 equity plan at an exercise price equal to $15.50. This option vests over the term of the employment agreement. The Company could incur severance obligations under the terms of the employment agreement in the event that Ms. Beasley's employment is terminated without cause or if she resigns for good reason. Ms. Beasley also received a $50,000 cash bonus upon completion of the initial public offering.
Brian E. Beasley Employment Agreement. The Company entered into a three year employment agreement with Brian E. Beasley pursuant to which he serves as the Vice President of Operations. Mr. Beasley receives an annual base salary of $300,000 subject to an annual increase of not less than 5%, and an annual cash bonus at the discretion of the board of directors. Mr. Beasley also received an option to purchase 487,500 shares of the Company's Class A common stock under the 2000 equity plan at an exercise price equal to $15.50. This option vests over the term of the employment agreement. The Company could incur severance obligations under the terms of the employment agreement in he event that Mr. Beasley's employment is terminated without cause or if the resigns for good reason.
2000 Equity Plan
On February 11, 2000, we adopted The 2000 Equity Plan of Beasley Broadcast Group. This equity plan is our first plan under which employee stock options have been granted. The principal purpose of the equity plan is to attract, retain and motivate selected officers, employees, consultants and directors through the granting of stock-based compensation awards. The equity plan provides for a variety of compensation awards, including non-qualified stock options, incentive stock options that are within the meaning of Section 422 of the Internal Revenue Code, stock appreciation rights, restricted stock, deferred stock, dividend equivalents, performance awards, stock payments and other stock-related benefits. A total of 3,000,000 shares of Class A common stock were reserved for issuance under the equity plan, of which 2,500,000 shares were granted on February 11, 2000. These options have an exercise price of $15.50 per share. As of December 31, 2000, the Company had granted 2,607,000 options under this plan.
The equity plan provides that a committee of independent directors has the authority to select the employees and consultants to whom awards are to be made, to determine the number of shares to be subject to
those awards and their terms and conditions, and to make all other determinations and to take all other actions necessary or advisable for the administration of the equity plan with respect to employees or consultants.
The equity plan also provides that, each of our independent director nominees will automatically be granted options to purchase 20,000 shares of our Class A common stock upon election to our board of directors. These options will have an exercise price per share equal to the fair market value per share of our Class A common stock as of the date of grant, and will be exercisable with respect to 10,000 shares as of the date of grant and will become exercisable with respect to an additional 5,000 shares on each of the first two anniversaries of the date of grant. The board may make additional option grants to our independent directors from time to time, in its discretion, on such terms as the board determines consistent with the equity plan.
The committee and the board is authorized to adopt, amend and rescind rules relating to the administration of the equity plan, and to amend, suspend and terminate the equity plan. We have attempted to structure the equity plan in a manner such that remuneration attributable to stock options and other awards will not be subject to the deduction limitation contained in Section 162(m) of the Internal Revenue Code.
Director Compensation
In the past, directors did not receive any fees for service on the Board of Directors. The Board of Directors has considered and may implement paying its non-employee directors a fee for each Board meeting and Committee meeting attended. The Board of Directors may do this on a retroactive basis. Non- employee directors would continue to be reimbursed for their out-of-pocket travel expenses for each Board of Directors and Committee meeting attended.
Compensation Committee Interlocks And Insider Participation
During the fiscal year ended December 31, 2000, the Compensation Committee consisted of three members, Messrs. Cox, Fowler and McCord. None of the members was at any time during the fiscal year ended December 31, 2000, or at any other time, an officer or employee of the Company. No executive officer of the Company serves as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as members of the Company's Board of Directors or Compensation Committee.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding beneficial ownership of the Class A Common Stock as of January 31, 2001, by:
. each person who is known by us to own beneficially more than 5% of the Class A Common Stock;
. each of our directors;
. each of the Named Officers; and
. all current officers and directors as a group.
Each stockholder possess sole voting and investment power with respect to the shares listed, unless otherwise noted. Shares of Class B Common stock are convertible into shares of Class A common stock on a one-for-one basis.
The number of Class A shares owned by George G. Beasley include options to purchase 162,500 shares of Class A Common Stock and 13,000 shares of Class A Common Stock held for the benefit of his grandchildren, which he disclaims beneficial ownership of. The number of Class B shares owned by George G. Beasley consists of 12,337,486 shares owned individually by him, 1,514,599 shares owned by the George Beasley Grantor Retained Annuity Trust and 39,835 shares owned by Shirley W. Beasley, Mr. Beasley's spouse. The number of Class A shares owned by Bruce G. Beasley, Caroline Beasley and Brian E. Beasley include options for each of them to purchase 162,500 shares of Class A Common Stock. The number of Class B shares owned by Bruce G. Beasley and Caroline Beasley each include 356,736 owned individually by each of them and
897,518 shares owned by the George Beasley Estate Reduction Trust as to which they share voting and dispositive power as trustees. Messrs. Cox and Fowler's ownership includes options to purchase 15,000 Class A shares at $15.50 per share and Mr. McCord's ownership includes options to purchase 10,000 Class A shares at the $10.38 per share. The number of Class A shares owned by Bradley C. Beasley includes options to purchase 33,334 shares of Class A Common Stock. Unless otherwise indicated, the address of each beneficial owner is c/o Beasley Broadcast Group, Inc., 3033 Riviera Drive, Suite 200, Naples, Florida 34103.
Common Stock
----------------------------------
Class A Class B Percent
--------------- ------------------ Percent of
Number Percent Percent of total total
Name of Beneficial of of Number of economic voting
Owner Shares class of Shares class interest power
------------------ ------ ------- ---------- ------- -------- -------
George G. Beasley......... 176,900 2.4% 13,891,920 81.6% 57.6% 78.3%
George Beasley Grantor
Retained Annuity Trust... -- -- 1,514,599 8.9 6.2 8.5
Bruce G. Beasley.......... 165,000 2.2 1,254,254 7.4 5.8 7.2
Caroline Beasley.......... 164,500 2.2 1,254,254 7.4 5.8 7.2
George Beasley Estate
Reduction Trust.......... -- -- 897,518 5.3 3.7 5.1
Bradley C. Beasley........ 34,334 0.5 741,462 4.4 3.2 4.2
Brian E. Beasley.......... 162,500 2.2 420,265 2.5 2.4 2.5
Thomson, Horstmann &
Bryant................... 501,900 6.9 -- -- 2.1 0.3
Park 80 West
Plaza Two
Saddle Brook, NJ 07663
Joe B. Cox................ 25,000 * -- -- * *
Mark S. Fowler............ 16,000 * -- -- * *
Herbert W. McCord......... 11,000 * -- -- * *
All directors and
executive officers as a
group.................... 720,900 9.1% 15,923,175 93.5% 66.7% 89.8%
|
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Indebtedness to Affiliates
From time to time prior to the completion of the Company's initial public offering on February 11, 2000, Beasley had incurred indebtedness to related parties and affiliated entities. The Company used a portion of the net proceeds from the initial public offering to repay all indebtedness to related parties and affiliated entities outstanding at the completion of the offering. The repayments consisted of the following:
. $25,976,006 owed to an affiliated entity owned by George G. Beasley, Shirley Beasley (the wife of George G. Beasley), Caroline Beasley, Bruce G. Beasley, Brian E. Beasley, Bradley C. Beasley and Robert E. Beasley;
. $11,611,038 owed to another affiliated entity, wholly-owned by George G.
Beasley; and
. $13,516,008 owed to George G. Beasley, an affiliated entity wholly-owned by George G. Beasley and Brian E. Beasley.
Indebtedness from Affiliates
From time to time prior to the completion of the Company's initial public offering, George G. Beasley, members of his immediate family and entities affiliated with them had borrowed funds from the Company. The aggregate indebtedness of $9,420,093 was repaid to Beasley at the completion of the offering.
Distribution to Affiliates
A distribution of approximately $1.0 million was made to George G. Beasley and his immediate family January 2000 to cover tax liabilities arising from the pass-through corporate structure of the entities that comprised Beasley Broadcast Group prior to the reorganization.
Corporate Reorganization
Prior to the completion of the Company's initial public offering, Beasley Broadcast Group comprised of a series of subchapter S corporations, a general partnership and a series of limited partnerships and limited liability companies. In connection with the offering, the subchapter S corporation status was terminated and all former subchapter S corporations and partnerships became indirect, wholly-owned subsidiaries of Beasley Broadcast Group, Inc., through the exchange by the Company's equity holders of their interests in the subchapter S corporations and partnerships for interests in Beasley Broadcast Group. To effect this corporate reorganization:
. George G. Beasley and members of his immediate family contributed their equity interest in the prior entities to Beasley Broadcast Group in exchange for a total of 17,021,373 shares of Class B common stock of Beasley Broadcast Group; and
. two of our general managers contributed their equity interests in two of the prior entities to Beasley Broadcast Group in exchange for a total of 402,068 shares of Class A common stock of Beasley Broadcast Group.
Radio Towers Sale and Leaseback
On December 28, 2000, the Company sold its radio towers and related real estate assets to Beasley Family Towers, Inc. (BFT) for approximately $5.1 million. Beasley Family Towers is a corporation owned by George G. Beasley, Bruce G. Beasley, Caroline Beasley, Brian E. Beasley and other family members of George G. Beasley. The purchase price was paid by unsecured notes payable to the Company from BFT in monthly payments at an interest rate equal to the applicable federal rate. The notes mature on December 28, 2020. In conjunction with this sale, the Company entered into lease agreements that expire on December 28, 2020 to leaseback the towers or space on the towers and certain transmitter buildings from BFT.
Office and Studio Leases
The Company leases office and studio broadcasting space for radio station WRXK-FM and WXKB-FM in Ft. Myers, Florida from George G. Beasley. The current annual rent for this space is approximately $95,000. The Company believes that these lease agreements are on terms at least as favorable to it as could have been obtained from an unaffiliated party.
The Company leases office space in Naples, Florida from Beasley Broadcasting Management Corp., which is wholly-owned by George G. Beasley. The current annual rent for the office space is approximately $90,000. The Company believes that the lease agreement is on terms at least as favorable to it as could have been obtained from an unaffiliated party.
Augusta Radio Tower Lease
The Company's Augusta radio station, WCHZ-FM, leases its radio tower from Wintersrun Communication, Inc., which is owned by George G. Beasley and Brian E. Beasley. The current annual rent for the tower is approximately $21,000. The Company believes that the lease agreement is on terms at least as favorable to it as could have been obtained from an unaffiliated party.
Centennial Transaction
As of February 1, 2001, we purchased all of the outstanding common stock of Centennial Broadcasting Nevada, Inc. and all of the membership interests in Centennial Broadcasting, LLC for approximately $113.5 million. Centennial Broadcasting Nevada, Inc. owned approximately 18.5% of the membership interests in Centennial Broadcasting, LLC, which owned the radio stations KJUL-FM, KSTJ- FM and KKLZ-FM in Las Vegas, Nevada and WBYU-AM, WRNO-FM and KMEZ-FM in New Orleans, Louisiana. Our Co-Chief Operating Officer and Vice Chairman of the Board of Directors, Allen B. Shaw, owned approximately 8.5% of Centennial Broadcasting, LLC and received a distribution of approximately $6.1 million, subject to certain conditions, as a result of this transaction.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) Financial Statements. A list of financial statements included herein is set forth in the Index to Financial Statements appearing in "ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA."
(b) Reports on Form 8-K. The following reports on Form 8-K were filed by us during the fourth quarter of the fiscal year ended December 31, 2000:
We filed a Current Report on Form 8-K on December 13, 2000 disclosing under Item 5 a second amendment to the Equity Interest Purchase Agreement for Centennial Broadcasting Nevada, Inc. and Centennial Broadcasting, LLC.
(c) Exhibits.
Exhibit
Number Description
------- -----------
2.1 Asset purchase agreement of radio stations WAEC-AM and WWWE-AM in
Atlanta and Hapeville, Georgia, dated August 13, 2000.(1)
2.2 Asset purchase agreement of radio station WRCA-AM in Waltham,
Massachusetts, dated December 31, 1999.(1)
2.3 Asset purchase agreement of radio stations WWNN-AM and WHSR-AM in
Pompano Beach, Florida and WSBR-AM in Boca Raton, Florida, dated
December 30, 1999.(1)
2.4 Equity interest purchase agreement of Centennial Broadcasting Nevada,
Inc. and Centennial Broadcasting, LLC, dated June 2, 2000.(2)
2.4 First amendment to equity interest purchase agreement of Centennial
Broadcasting Nevada, Inc. and Centennial Broadcasting, LLC, dated
December 13, 2000.(3)
2.5 Second amendment to equity interest purchase agreement of Centennial
Broadcasting Nevada, Inc. and Centennial Broadcasting, LLC, dated
December 13, 2000.(4)
2.6 Asset purchase agreement of radio stations WKXC-FM and WSLT-FM in
Augusta, Georgia, dated November 13, 2000.
3.1 Third amended and restated bylaws of the Registrant.
10.1 George G. Beasley executive employment agreement with Beasley
Mezzanine Holdings, LLC, dated January 31, 2000.(1)
10.2 Bruce G. Beasley executive employment agreement with Beasley Mezzanine
Holdings, LLC, dated January 31, 2000.(1)
10.3 B. Caroline Beasley executive employment agreement with Beasley
Mezzanine Holdings, LLC, dated January 31, 2000.(1)
10.4 Brian E. Beasley executive employment agreement with Beasley Mezzanine
Holdings, LLC, dated January 31, 2000.(1)
10.5 Beasley Broadcast Group Contribution Agreement, dated as of November
23, 1999 between Beasley Broadcast Group, Inc., George G. Beasley,
Bruce G. Beasley, Brian E. Beasley, B. Caroline Beasley, Bradley C.
Beasley, Robert E. Beasley, Shirley W. Beasley, J. Daniel Highsmith,
Reed Miami Holdings, Inc., Beasley FM Acquisition Corp. and affiliated
entities.(1)
10.6 Note of indebtedness issued to Beasley Broadcasting of Philadelphia,
Inc., in the principal amount of $24,545,566.53, dated August 11,
1994.(1)
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Exhibit
Number Description
------- -----------
10.7 Note of indebtedness issued to Beasley-Reed Broadcasting of Miami,
Inc., in the principal amount of $11,498,147.97, dated August 11,
1994.(1)
10.8 Form of notes of indebtedness by and between Beasley Broadcast Group,
Inc. and affiliates, dated January 31, 2000.(1)
10.9 The 2000 Equity Plan of Beasley Broadcast Group, Inc.(1)
10.10 Form of agreement of sale of four communications towers between
Beasley FM Acquisition Corp. and Beasley Family Towers, Inc.(1)
10.11 Form of agreement of sale of a communications tower between Beasley
Broadcasting of Eastern North Carolina, Inc. and Beasley Family
Towers, Inc.(1)
10.12 Form of agreement of sale of a communications tower between Beasley
Broadcasting of New Jersey, Inc. and Beasley Family Towers, Inc.(1)
10.13 Form of agreement of sale of a communications tower between Beasley
Broadcasting of Eastern Pennsylvania, Inc. and Beasley Family Towers,
Inc.(1)
10.14 Form of agreement of sale of a communications tower between Beasley
Broadcasting of Coastal Carolina, Inc. and Beasley Family Towers,
Inc.(1)
10.15 Form of agreement of sale of a communications tower between Beasley
Reed Acquisition Partnership and Beasley Family Towers, Inc.(1)
10.16 Form of agreement of sale of three communications towers between
Beasley FM Acquisition Corp. and Beasley Family Towers, Inc.(1)
10.17 Credit agreement between Beasley Mezzanine Holdings, LLC and Fleet
National Bank, as syndication agent, Bank of America, as documentation
agent, the Bank of New York, as co-documentation agent and managing
agent, and the Bank of Montreal, Chicago Branch, as administrative
agent, dated August 31, 2000.(5)
10.18 Amendment to Agreement of Sale of Four Communications Towers between
Beasley FM Acquisition Corp. and Beasley Family Towers, Inc.
10.19 Amendment to Agreement of Sale of a Communications Tower between
Beasley Broadcasting of Eastern North Carolina, Inc. and Beasley
Family Towers, Inc.
10.20 Amendment to Agreement of Sale of a Communications Tower between
Beasley Broadcasting New Jersey, Inc. and Beasley Family Towers, Inc.
10.21 Amendment to Agreement of Sale of Three Communications Towers between
Beasley FM Acquisition Corp. and Beasley Family Towers, Inc.
10.22 Agreement of Sale of a Communications Tower between Beasley Radio and
Beasley Family Towers
10.23 Amendment to Agreement of Sale of a Communications Tower between
Beasley Radio and Beasley Family Towers
10.24 Agreement of Sale of a Communications Tower between Beasley
Broadcasting of Augusta and Beasley Family Towers
10.25 Amendment to Agreement of Sale of a Communications Tower between
Beasley Broadcasting of Augusta and Beasley Family Towers
10.26 Agreement of Sale of a Communications Tower between Beasley
Broadcasting of Augusta and Beasley Family Towers
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Exhibit
Number Description
------- -----------
10.27 Amendment to Agreement of Sale of a Communications Tower between
Beasley Broadcasting of Augusta and Beasley Family Towers
10.28 Agreement of Sale of Two Communications Towers between Beasley FM
Acquisition and Beasley Family Towers
10.29 Amendment to Agreement of Sale of a Communications Tower between
Beasley FM Acquisition and Beasley Family Towers
10.30 Allen B. Shaw executive employment agreement with Beasley Mezzanine
Holdings, LLC, dated February 1, 2001.
10.31 Amendment to Agreement of Sale of a Communications Tower between
Beasley Broadcasting of Eastern Pennsylvania, Inc. and Beasley Family
Towers, Inc.
10.32 Amendment to Agreement of Sale of a Communications Tower between
Beasley Broadcasting of Coastal Carolina, Inc. and Beasley Family
Towers, Inc.
10.33 Amendment to Agreement of Sale of a Communications Tower between
Beasley Reed Acquisition Partnership and Beasley Family Towers, Inc.
21.1 Subsidiaries of the Company.
23.1 Consent of KPMG, LLP.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Beasley Broadcast Group, Inc.
/s/ George G. Beasley
By: _________________________________
George G. Beasley
Chairman of the Board andChief
Executive Officer
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Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ George G. Beasley Chairman of the Board and February 13, 2001
______________________________________ Chief Executive Officer
George G. Beasley
/s/ Bruce G. Beasley President, Chief Operating February 13, 2001
______________________________________ Officer and Director
Bruce G. Beasley
/s/ Caroline Beasley Vice President, Chief February 13, 2001
______________________________________ Financial Officer,
Caroline Beasley Secretary, Treasurer and
Director
/s/ Brian E. Beasley Vice President of February 13, 2001
______________________________________ Operations and Director
Brian E. Beasley
/s/ Joe B. Cox Director February 13, 2001
______________________________________
Joe B. Cox
/s/ Mark S. Fowler Director February 13, 2001
______________________________________
Mark S. Fowler
/s/ Herbert W. McCord Director February 13, 2001
______________________________________
Herbert W. McCord
/s/ Allen B. Shaw Director February 13, 2001
______________________________________
Allen B. Shaw
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Exhibit 2.6
ASSET PURCHASE AGREEMENT
By and Among
BEASLEY BROADCASTING OF AUGUSTA, INC.
Buyer
and
GHB OF AUGUSTA, INC.
and
GHB OF CLEARWATER, INC.
Sellers
Dated as of NOVEMBER 13, 2000
Page
----
ASSET PURCHASE AGREEMENT..................................................... 1
ARTICLE I. ASSETS TO BE CONVEYED............................................. 1
1.1 Licenses and Authorizations.......................................... 1
1.2 Station Equipment.................................................... 2
1.3 Contracts............................................................ 2
1.4 Real Property........................................................ 2
1.5 Call Signs, Promotional Materials and Intangibles.................... 2
1.6 Records.............................................................. 3
1.7 Accounts Receivable.................................................. 3
1.8 Non-Compete Agreement................................................ 3
1.9 Excluded Assets...................................................... 4
ARTICLE II. ASSUMPTION OF LIABILITIES........................................ 5
ARTICLE III. PURCHASE PRICE AND PAYMENT...................................... 5
3.1 Purchase Price....................................................... 5
3.2 Allocation........................................................... 5
ARTICLE IV. PRORATIONS AND ADJUSTMENTS 6
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER 7
5.1 Organization......................................................... 7
5.2 Authorization........................................................ 7
5.3 No Breach............................................................ 7
5.4 Station Licenses..................................................... 8
5.5 Station Applications................................................. 8
5.6 Title to Assets...................................................... 8
5.7 Condition of Equipment............................................... 9
5.8 Condition of Real Property........................................... 9
5.9 Contracts............................................................ 10
5.10 Employees............................................................ 11
5.11 Employee Benefit Plans............................................... 11
5.12 Litigation........................................................... 12
5.13 Payment of Taxes..................................................... 12
5.14 Compliance With Laws................................................. 13
5.15 Insolvency Proceedings............................................... 14
5.16 Citizenship.......................................................... 14
5.17 Patents, Trademarks, Copyrights...................................... 14
5.18 Financial Statements................................................. 15
5.19 Sufficiency of Assets................................................ 15
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5.20 No Misleading Statements............................................. 15
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER.......................... 16
6.1 Organization......................................................... 16
6.2 Authorization........................................................ 16
6.3 No Breach............................................................ 16
6.4 Litigation........................................................... 17
6.5 No Misleading Statements............................................. 17
6.6 Qualification as Broadcast Licensee.................................. 17
ARTICLE VII. ENVIRONMENTAL MATTERS........................................... 17
7.1 Compliance with Law.................................................. 17
7.2 Site Contamination................................................... 17
7.3 Additional Provisions Regarding Hazardous or Toxic Materials......... 18
7.4 No Notice of Lack of Compliance with Environmental Statutes.......... 18
ARTICLE VIII. PRE-CLOSING OBLIGATIONS........................................ 18
8.1 Application for Commission Consent................................... 18
8.2 Other Governmental Consents.......................................... 19
8.4 Financial Information................................................ 19
8.5 Third Party Consents................................................. 19
8.6 Environmental Site Assessment........................................ 19
8.7 Title Insurance...................................................... 20
8.8 Surveys.............................................................. 20
8.9 Confidentiality...................................................... 20
8.10 Access............................................................... 20
8.11 Employee Matters..................................................... 21
8.12 Operations Prior to Closing.......................................... 21
8.13 Adverse Developments................................................. 23
8.14 Administrative Violations............................................ 23
8.15 Bulk Sales Act....................................................... 23
8.16 Control of Stations.................................................. 23
8.17 Buyer's Financing: Other Documents and Acts......................... 23
8.18 Additional Covenant.................................................. 23
ARTICLE IX. CONDITIONS PRECEDENT............................................. 24
9.1 Mutual Conditions.................................................... 24
9.1.1 Governmental Consents......................................... 24
9.1.2 Absence of Litigation......................................... 24
9.2 Conditions to Buyer's Obligation..................................... 24
9.2.1 Representations and Warranties................................ 24
9.2.2 Compliance with Conditions.................................... 24
9.2.3 No Material Adverse Development............................... 24
9.2.4 Title Commitment and Surveys.................................. 24
9.2.5 Validity of Station Licenses.................................. 25
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9.2.6 Closing Documents............................................. 25
9.2.7 Third Party Consents.......................................... 25
9.2.8 Settlement of Claims.......................................... 25
9.2.9 Finality...................................................... 25
9.2.10 Satisfactory Environmental Assessment......................... 26
9.2.11 Estoppel Certificates........................................ 26
9.3 Conditions to Seller's Obligation.................................... 26
9.3.1 Representations and Warranties................................ 26
9.3.2 Compliance with Conditions.................................... 26
9.3.3 Payment....................................................... 26
9.3.4 Closing Documents............................................. 26
ARTICLE X. CLOSING........................................................... 26
10.1 Closing Date......................................................... 26
10.2 Performance at Closing............................................... 27
10.2.1 Seller shall deliver to Buyer:............................... 27
10.2.2 Buyer shall deliver to Seller:............................... 28
10.2.3 Other Documents and Acts..................................... 28
ARTICLE XI. POST-CLOSING OBLIGATIONS......................................... 28
11.1 Indemnification...................................................... 28
11.1.1 Buyer's Right to Indemnification............................. 28
11.1.2 Seller's Right to Indemnification............................ 29
11.1.3 Conduct of Proceedings....................................... 29
11.1.4 Indemnification As Remedy.................................... 30
11.2 Post-Closing Access.................................................. 30
ARTICLE XII. DEFAULT AND REMEDIES............................................ 30
12.1 Termination by Seller Upon Buyer's Default........................... 30
12.2 Termination by Buyer Upon Seller's Default........................... 31
12.3 Letter of Credit..................................................... 31
12.4 Seller's Remedies.................................................... 32
12.5 Buyer's Remedies..................................................... 32
ARTICLE XIII. TERMINATION.................................................... 32
13.1 Designation for Hearing.............................................. 32
13.2 Damage............................................................... 33
13.2.1 Risk of Loss................................................. 33
13.2.2 Failure of Broadcast Transmission............................ 33
13.2.3 Resolution of Disagreements.................................. 34
13.3 Legal Actions........................................................ 34
ARTICLE XIV. POST-CLOSING OBLIGATIONS OF SELLER.............................. 34
14.1 Future Financings.................................................... 34
14.2 Removal of Liens..................................................... 35
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ARTICLE XV. GENERAL PROVISIONS............................................... 35 15.1 Brokerage............................................................ 35 15.2 Expenses............................................................. 35 15.3 Notices.............................................................. 35 15.4 Attorneys' Fees...................................................... 37 15.5 Survival of Representations, Warranties and Indemnification Rights... 37 15.6 Exclusive Dealings................................................... 37 15.7 Waiver............................................................... 37 15.8 Assignment........................................................... 37 15.9 Entire Agreement..................................................... 38 15.10 Counterparts......................................................... 38 15.11 Construction......................................................... 38 15.12 Schedules and Exhibits............................................... 38 15.13 Severability......................................................... 38 15.14 Choice of Law........................................................ 38 15.15 Counsel.............................................................. 39 |
As used herein, the following terms shall have the meanings defined in the introduction, background or section indicated below:
Adjustment Time Article IV Administrative Violation Section 8.14 Agreement Introduction Assets Article I Assignment Applications Section 8.1 Barter Agreements Section 1.3 Buyer Introduction Buyer Indemnitees Section 11.1.1 Buyer Statement Article V Closing Article II Closing Date Section 10.1 Code Section 5.11 Commission Background Contract Date Introduction Contracts Section 1.3 Covenant Section 1.8 Credit Agreement Section 6.3 Employee Plan Section 5.11 Environmental Assessment Section 8.6 Environmental Statutes Section 7.4 ERISA Section 5.11 EST Article IV Estoppel Certificates Section 9.2.11 FAA Section 5.14(e) FCC Background FCC Consent Section 9.1.1 Final Order Section 9.2.9 Financial Statements Section 5.18 GAAP Section 5.18 Hazardous Substance Section 8.2 Hired Employees Section 8.11(b) HSR Act Section 9.2 Indemnified Party Section 11.1.3 |
Indemnitor Section 11.1.3 Intangible Property Section 1.5 Lease Agreements Section 5.8(c) Letter of Credit Section 12.3 Licensee Introduction License Sub Section 16.8 Liens Section 5.6 Losses Section 11.1.1 Material Contracts Section 8.5 Operating Contracts Section 1.3 Payment Date Article IV Permitted Liens Section 5.6 Promotional Rights Section 5.17 Public Filings Article XV Purchase Price Section 3.1 Real Property Section 1.4 Real Property-Leased Section 5.8(a) Real Property-Owned Section 5.8(a) Receivables Section 1.7 Required Consent Section 9.2.7 Sales Agreements Section 1.3 Seller Introduction Seller Indemnitees Section 11.1.2 Senior Lenders Section 6.3 Specified Event Section 14.3.2 Stations Background Station Applications Section 1.1 Station Equipment Section 1.2 Station Licenses Section 1.1 Station Records Section 1.6 Title Commitment Section 8.7 Trade Agreements Section 1.3 Transaction Background |
TABLE OF SCHEDULES
Schedule Title
-------- -----
1.1 Licenses and Authorizations
1.2 Station Equipment
1.3(a) Operating Contracts
1.3(c) Sales Agreements
1.3(d) Trade Agreements
1.3(e) Barter Agreements
1.4 Real Property
1.5 Call Signs, Promotional Materials and
Intangibles
5.1 Organization
5.6(a) Liens
5.6(b) Permitted Liens
5.8(c) Liens on Leases; Assignment Restrictions on
Lease Agreements
5.10 Employees
5.11 Employee Benefits Plans
5.12 Litigation
5.18 Financial Statements
7.1 Compliance with Law
7.2 Site Contamination
7.3 Hazardous and Toxic Materials
7.4 Lack of Compliance with Environmental Statutes
Statutes
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered on November __, 2000 (the "Contract Date"), by and among BEASLEY BROADCASTING OF AUGUSTA, INC., a Delaware corporation ("Beasley Augusta"), and WGAC License, LLC , a Delaware limited liabilty company ("License LLC," and together with Beasley Broadcasting of Augusta, Inc., "Buyer") and GHB OF AUGUSTA, INC., a South Carolina corporation ("Augusta"), and GHB OF CLEARWATER, INC., a South Carolina corporation ("Clearwater"), (and, together with Augusta, being collectively referred to as "Seller," or each individually as an "Owner") and Jacob E. Bogan ("Bogan").
BACKGROUND:
Augusta is the licensee, owner and operator of Broadcast Station WKXC(FM), Aiken, South Carolina. Clearwater is the licensee, owner and operator of Broadcast Station WSLT(FM), Clearwater, South Carolina (together, the "Stations"), pursuant to certain authorizations issued by the Federal Communications Commission (the "Commission" or "FCC"), and the Owners each own certain assets used or held for use solely in connection with the operation of each of the Stations. Seller desires to sell and assign and Buyer desires to purchase and acquire substantially all of the property and assets used or held for use in the operation of the Stations upon the terms set forth in this Agreement (the "Transaction"). The parties acknowledge that the licenses issued by the Commission for the operation of the Stations may not be assigned without the prior written consent of the Commission. Accordingly, in consideration of the foregoing and of the mutual promises, covenants, and conditions set forth below, the parties agree as follows:
ARTICLE I.
ASSETS TO BE CONVEYED
On the Closing Date (as defined below), subject to and in reliance upon the covenants, representations, warranties and agreements set forth herein, and subject to the terms and conditions contained herein, Seller shall sell, assign, transfer and deliver to Buyer and Buyer shall purchase from Seller, all of the assets used or held for use in the operation of the Stations, other than Excluded Assets (as defined below), including without limitation, the following (collectively, the "Assets"):
transmitters, towers, ground system and studio equipment listed on Schedule 1.2 together with any replacements, improvements, or additions thereto made between the Contract Date and the Closing Date (the "Station Equipment").
pertaining solely to Seller's internal corporate affairs or its other stations or interests (the "Station Records").
At Closing, Seller shall sublet to Buyer the studio portion of the real property described in the lease agreement listed on Schedule 1.4 under Real Property Leased (the "Studio Lease")on terms to be agreed on by the parties prior to Closing for a term of 6 months from the date of Closing in exchange for the amount of Forty-four Thousand One Hundred Dollars ($44,100) to be paid by Buyer to Seller at Closing. Buyer shall have no other financial obligations under the Studio Lease. The parties agree that the terms to be agreed upon are not material to the agreement set forth herein and neither party will maintain that this Agreement is not enforceable by reason of the agreement of the parties to agree on the terms of the Studio Lease prior to Closing.
(a) Seller's cash on hand as of the Closing and any of Seller's interests in its bank accounts and all of Seller's other cash, cash equivalents, security funds, securities, investments, deposits, prepayments (including prepaid taxes and insurance), tax refunds and overpayments;
(b) Any insurance policies and proceeds thereof, promissory notes, amounts due from employees, bonds, letters of credit, certificates of deposits or other similar items and cash surrender value in regard thereto;
(c) Any pension, profit-sharing, or employee benefit plans, including all of Seller's interest in any Employee Plan (as defined in Section 5.11), and any collective bargaining agreements;
(d) Any accounts receivable outstanding on the Closing Date, subject to Section 1.7 hereof.
(e) Any agreements not included among the Contracts;
(f) All tax returns and supporting materials, all original financial statements and supporting materials, all books and records that Seller is required by law to retain, all corporate minutes and records, and all records of Seller relating to the sale of the Assets; and
(g) Any interest in and to any refunds of federal, state, or local franchise, income or other taxes for periods prior to the Closing Date.
ARTICLE II.
ASSUMPTION OF LIABILITIES
On the Closing Date, Buyer shall assume the liabilities which accrue under the Contracts on and after the closing of the transactions contemplated herein (the "Closing"), and the liabilities which result from the operation of the Stations by Buyer after Closing. Buyer
shall not assume or undertake to pay, satisfy or discharge any other liabilities, obligations, commitments or responsibilities of Seller, including, without limitation, (i) any obligations or liabilities under any contract, agreement or lease not included in the Contracts, (ii) any obligations or liabilities under the Contracts relating to the period prior to the Closing except for those obligations or liabilities arising out of the Trade Agreements or Barter Agreements assumed by Buyer and subject to adjustment pursuant to Article IV, (iii) any obligations or liabilities relating to or arising out of any claims or pending litigation proceedings, (iv) any obligations or liabilities of Seller under any agreement or arrangement, written or oral, with salaried or non-salaried employees of the Stations, other than those obligations or liabilities of Seller under the employment agreements set forth on Schedule 1.3 and agreements or arrangements with employees of the Stations that Buyer has identified pursuant to Section 8.10(b) as agreements or arrangements that Buyer will assume from Seller and provided further, that Buyer actually hires such employees pursuant to such agreements or arrangements (as opposed to entering into new employee agreements or arrangements with such employees), (v) any Employee Plan and (vi) any obligations or liabilities to any employee of the Stations for accrued commissions, vacation time or sick leave, and all such obligations and liabilities shall remain and be the obligations and liabilities of Seller. If any Contract requires the consent of third parties for assignment, but (i) such consent has not been obtained as of the Closing Date, as required by Section 9.2.7, and (ii) in the case of Material Contracts, Buyer waives such condition precedent to the Closing in its sole discretion, then Buyer shall assume Seller's obligations under such Contract only for the period after Closing during which Buyer receives the benefits to which Seller is currently entitled under such Contract (unless consent is subsequently obtained and such delay has not prejudiced Buyer, and unless the failure of Buyer to receive benefits under such Contract is due to Buyer's failure to perform Seller's obligations thereunder after Closing).
ARTICLE III.
PURCHASE PRICE AND PAYMENT
inconsistent with the values set forth in the appraisal and the requirements of section 1060 of the Internal Revenue Code without the written consent of the other.
ARTICLE IV.
PRORATIONS AND ADJUSTMENTS
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 11:59 p.m. Eastern Standard Time ("EST") of the day prior to the Closing Date (the "Adjustment Time") shall be for the account of Seller, and all expenses and income arising from the operation of the Assets after the Adjustment Time shall be for the account of Buyer. All special assessments and similar charges or liens, imposed against the Assets in respect of any period of time up until the Adjustment Time, whether payable in installments or otherwise, shall be the responsibility of Seller, and amounts payable with respect to such special assessments, charges or liens imposed in respect of any period of time after the Adjustment Time shall be the responsibility of Buyer, and such charges shall be adjusted as required hereunder. Three (3) days prior to the Closing Date Seller shall estimate all apportionments pursuant to this Article IV and shall deliver a statement of its estimates to Buyer (which statement shall set forth in reasonable detail the basis for those estimates). To the extent that, as of the Closing Date, the aggregate value of the unfulfilled obligations under Trade Agreements or Barter Agreements, including any "time bank" provision thereof, exceeds the aggregate value of consideration to be received by the Stations related to such Trade Agreements or Barter Agreements (determined as of the Closing Date), Buyer shall be entitled to a positive cash adjustment in the amount equal to the excess, if any. At the Closing, Buyer shall pay to Seller, or Seller shall pay to Buyer, as the case may be, the net amount due as a result of the estimated apportionments (excluding any item that is in good faith in dispute). Within sixty (60) days after the Closing, Buyer shall deliver to Seller a statement (the "Buyer Statement") of any adjustments to Seller's estimate of the apportionments, and within twenty (20) days of the delivery to Seller of the Buyer Statement (the "Payment Date"), Buyer shall pay to Seller, or Seller shall pay to Buyer, as the case may be, any amount due as a result of the adjustment (or, if there is any dispute, the undisputed amount). Except with respect to items that Seller notifies Buyer that it objects to within such twenty (20) day period, the adjustments set forth in the Buyer Statement shall be final and binding on the parties effective on the expiration of such twenty (20) day period. If Seller disputes Buyer's determinations, or if at any time after delivery of Buyer's statement of determinations, either party determines that any item included in the apportionments is inaccurate, or that an additional item should be included in the apportionments, the parties shall confer with regard to the matter and an appropriate adjustment and payment shall be made as agreed upon by the parties (or, if they are unable to resolve the matter, they shall select a firm of independent certified public accountants to resolve the matter, whose decision on the matter shall be binding and whose fees and expenses shall be borne equally by the parties). All amounts due pursuant to this subsection that are not paid on the Payment Date or such later date when any disputed amounts are finally determined, as applicable, shall bear interest from such date until paid at a rate per annum equal to the generally prevailing prime interest rate (as reported by The Wall Street Journal) plus five percent (5%).
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties, all of which have been relied upon by Buyer in entering into this Agreement and, except as otherwise specifically provided, all of which shall be true and correct at Closing.
officers, directors, or shareholders of Seller or any of its affiliates, and are free and clear of any restrictions which might limit the full operation of the Stations in the manner and to the full extent as it is now operated (other than restrictions under the terms of the licenses themselves or generally applicable under the rules and regulations of the FCC). There are no applications, proceedings, or complaints pending or, to the knowledge of Seller, threatened which may have an adverse effect on the business or operation of the Stations (other than rulemaking proceedings that apply to the radio broadcasting industry generally). Seller is not aware of any reason why those of the Station Licenses subject to expiration might not be renewed in the ordinary course for a full term without material qualifications or of any reason why any of the Station Licenses might be revoked. Each of the Stations is in compliance with the Commission's policy on exposure to radio frequency radiation. No renewal of any Station License would constitute a major environmental action under the rules of the Commission. There are no facts which, under the Communications Act of 1934, as amended, or the existing rules of the Commission, would disqualify Seller from assigning the Station Licenses or from consummating the transactions contemplated herein within the times contemplated herein. Seller maintains an appropriate public inspection file at each Station's studio in accordance with Commission rules. Access to the Stations' transmission facilities are restricted in accordance with the policies of the Commission.
(a) The Real Property listed on Schedule 1.4 constitutes all the real property owned ("Real Property-Owned") or leased ("Real Property- Leased") by Seller or others in connection with the operation of the Stations as they are now operated. Seller has marketable fee simple title (free and clear of any liens other than Permitted Liens) to the Real Property-Owned.
(b) There are no encroachments upon the Real Property by any buildings, structures, or improvements located on adjoining real estate. None of the buildings, structures, or improvements (including without limitation any ground radials, guy wires or guy anchors) constructed on the Real Property encroach upon adjoining real estate, and all such buildings, structures, and improvements are constructed in conformity with or are "grandfathered" with respect to all "setback" lines, easements, and other restrictions, or rights of record, or that have been established by any applicable building or safety code or zoning ordinance. Such "grandfathered" approvals shall survive indefinitely the transfer of the Real Property to Buyer. No utility lines serving the Real Property pass over the lands of others except where appropriate easements have been obtained. There are no pending or, to the best of Seller's knowledge, threatened or contemplated condemnation or eminent domain proceedings that may affect the Real Property. There exists no writ, injunction, decree, order or judgment, nor any litigation, pending, or to the best of Seller's knowledge, threatened, relating to the ownership, use, lease, occupancy or operation of any of the Real Property. Seller's use and occupancy of the Real Property complies in all material respects with all regulations, codes, ordinances, and statutes of all applicable governmental authorities, including without limitation all environmental protection and sanitary laws and regulations, occupational safety and health regulations, and electrical codes. There are no material structural defects in the buildings, structures, and improvements located on the Real Property. Roofs are in good condition and repair, and all plumbing equipment, heating, ventilating and air conditioning equipment, electrical wiring, and water and sewage systems are operating properly and are free of any material defects.
(c) The leased premises are leased at the rates and for terms ending on the dates shown on Schedule 1.4 pursuant to the agreements described in Schedule 1.4 (the "Lease Agreements"), which are the sole and complete agreements concerning Seller's use of the leased premises. Each Lease Agreement is legal, valid, binding, enforceable and in full force and effect. Neither Seller nor any other party is in default, violation or breach in any respect under any Lease Agreement, and no event has occurred and is continuing that constitutes or, with notice or the passage of time or both, would constitute a default, violation or breach thereunder. No amount payable under any Lease Agreement is past due. Seller has not received any notice of a default, offset or counterclaim under any Lease Agreement or any other communication asserting non-compliance with any Lease Agreement. Seller has the exclusive right to use and occupy the premises leased under each Lease Agreement as they are now currently being used and occupied and for the purposes necessary to operate the Stations. Seller enjoys peaceful and undisturbed possession of the premises leased by Seller under the Lease
Agreement. Except as set forth on Schedule 5.6(b), the Lease Agreements are free and clear of all Liens, except for lessors' interests in the leases. Seller has delivered to Buyer, true and complete copies of the Lease Agreements, together, in the case of any subleases or similar occupancy agreements, with copies of all overleases. Except as disclosed in Schedule 5.6(b), Seller has full legal power and authority to assign its rights under the Lease Agreements to Buyer in accordance with this Agreement on terms and conditions no less favorable than those in effect on the date hereof, and such assignment will not affect the validity, enforceability and continuity of any such lease.
(d) All utilities that are required for the full and complete occupancy and use of the Real Property for the purposes for which such properties are presently being used by Seller, including without limitation electric, water, sewer, telephone (if any) and similar services, have been connected and are in good working order. By the Closing Date, Seller will have paid all charges for such utilities, including without limitation any "tie-in" charges or connection fees, except for those charges that will not become due until after the Closing Date and that are to be prorated between Seller and Buyer pursuant to Article IV.
(a) Schedule 5.10 contains a true and complete list of all persons employed at the Stations, each such person's compensation and bonus arrangements and the Employee Plans listed in Schedule 5.11, if any, applicable to each such person. Seller is not a party to any agreement or arrangement, written or oral, with
salaried or non-salaried employees except as described in Schedules 5.10 and 5.11 or included among the Operating Contracts. Except as described in Schedule 5.10, Seller has no knowledge that any employee identified in Schedule 5.10 currently plans to terminate employment, whether by reason of the transactions contemplated by this Agreement or otherwise.
(b) Except as disclosed in Schedule 5.10, Seller is not a party to or subject to any contract with any labor organization, nor has Seller agreed to recognize any union or other collective bargaining unit, nor has any union or other collective bargaining unit been certified as representing any of Seller's employees at the Stations. Seller has no knowledge of any organizational effort currently being made or threatened by or on behalf of any labor union with respect to employees of Seller at the Stations. There are no unfair labor practice charges pending or, to the best of Seller's knowledge, threatened against Seller; there are no pending or threatened strikes, arbitration proceedings involving labor matters or other labor disputes affecting Seller or the Stations; and Seller has not experienced any strikes, work stoppages or other significant labor difficulties of any nature at the Stations in the past two (2) years.
(a) The Stations' transmitting and studio equipment is operating in accordance with the terms and conditions of the Station Licenses, and the rules, regulations and policies of the Commission, including without limitation all regulations concerning equipment authorization and human exposure to radio frequency radiation. The Stations are not causing interference in violation of Commission rules to the transmission of any other broadcast station or communications facility and neither Station has received any complaints with respect thereto and (ii) no other broadcast station or communications facility is causing interference in violation of Commission rules to the Stations' transmissions or the public's reception of such transmissions. Seller has no outstanding construction permits with respect to the Stations.
(b) Seller has, in the conduct of the Stations' business, complied in all material respects with all applicable laws, rules and regulations relating to the employment of labor, including those concerning wages, hours, equal employment opportunity, collective bargaining, pension and welfare benefit plans, and the payment of Social Security and similar taxes, and Seller is not liable for any arrearages of wages or any tax penalties due to any failure to comp ly with any of the foregoing.
(c) Seller has received no notification from the Commission that Seller's employment practices fail to comply with Commission rules and policies.
(d) All ownership reports, employment reports, tax returns and other documents required to be filed by Seller with the Commission or other governmental authorities have been filed. Such items as are required to be placed in each Station's local public inspection files have been placed in such files. All proofs of performance and measurements that are required to be made by Seller with respect to each Station's transmission facilities have been completed and filed at the Stations. All information contained in the foregoing documents is true, complete and accurate in all material respects.
(e) The towers used in the operation of the Stations are painted, obstruction marked and lighted to the extent required by, and in accordance with the rules and regulations of the Federal Aviation Administration (the "FAA"), the Commission and any other applicable requirements of law. Appropriate notifications to the FAA have been filed for such towers where required by the Commission's rules and regulations.
infringement or unlawful or unauthorized use of such Promotional Rights, including without limitation the use of any call sign, slogan or logo by any broadcast or cable station in the radio market areas that may be confusingly similar to the call signs, slogans, and logos currently used by the Stations. The operations of the Stations do not infringe any copyright, patent, trademark, trade name, service mark, or other similar right of any third party. Seller has not sold, licensed or otherwise disposed of any Promotional Rights to any person or entity and Seller has not agreed to indemnify any person or entity for any patent, trademark or copyright infringement. Schedule 1.5 lists all of the Promotional Rights which have been duly registered with, filed in or issued by, as the case may be, the United States Patent and Trademark Office and United States Copyright Office or other filing offices, domestic or foreign.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties, all of which have been relied upon by Seller in entering into this Agreement and, except as otherwise specifically provided, all of which shall be true and correct as of Closing.
ARTICLE VII.
ENVIRONMENTAL MATTERS
the Real Property. Seller has no knowledge of notices of violation of Environmental Statutes, notices of noncompliance with Environmental Statutes or environmental enforcement, response, removal or remediation actions issued for or undertaken at the Real Property. Further, Seller has no knowledge of investigations or inspections by governmental authorities into Seller's compliance with Environmental Statutes. Schedule 7.4 includes a correct and complete list of Seller's registrations with, licenses from, or permits issued by governmental agencies or authorities pursuant to Environmental Statutes. All such registrations, licenses or permits are in full force and effect.
ARTICLE VIII.
PRE-CLOSING OBLIGATIONS
The parties covenant and agree as follows with respect to the period prior to the Closing Date:
explain the compilation and preparation of the Financial Statements and the monthly financial statements and such other additional data provided pursuant to this Section 8.4, and each of the constituent elements reflected thereon.
(a) As set forth on Schedule 5.10, Seller has provided to Buyer an accurate list of all current employees of the Stations together with a description of the terms and conditions of their respective employment and their duties as of the date of this Agreement. Seller shall promptly notify Buyer of any changes that occur prior to Closing with respect to such information.
(b) Buyer may extend offers of employment to those employees of Seller whom it desires to hire (such employees are hereinafter referred to as the "Hired Employees"), which offers shall be on terms and conditions that Buyer shall determine in its sole discretion. Buyer shall provide notice to Seller at least ten (10) days prior to Closing identifying those employees to whom Buyer intends to extend offers of employment. Nothing contained in this Agreement shall obligate Buyer to hire any employee of Seller. Seller waives any claims against Buyer or any of the Hired Employees arising from such employment, including without limitation any claims arising from any employment agreement or non-compete agreement. On or prior to Closing, Seller shall compensate each Station's employees for all accrued commissions, accrued vacations, sick leave and other accrued benefits, or if Buyer assumes such obligations, such liabilities shall be prorated between Seller and Buyer pursuant to Article IV. Seller shall terminate the employment of all employees effective on the Closing Date. Seller shall give Buyer reasonable access to employees for the purpose of determining to whom Buyer wishes to extend offers of employment and shall do nothing to discourage or otherwise interfere with Buyer in its efforts to secure satisfactory employment arrangements with the Hired Employees to whom Buyer makes offers of employment.
(c) Nothing contained in this Agreement shall confer upon any employee of Seller any right with respect to continued employment by Buyer, nor shall anything herein interfere with the right of Buyer to terminate the employment of any of the Hired Employees at any time, with or without cause.
(a) Seller shall operate the Stations in the normal and usual manner, consistent with Seller's past practice and the rules, regulations, and policies of the Commission, and shall conduct the Stations' business only in the ordinary course. To the extent consistent with such operations, Seller shall use its best efforts to: (i) maintain the present character and entertainment format of the Stations and the quality of their programs; (ii) keep available for Buyer the services and number of each Station's present employees reasonably necessary for the operation of the Stations; (iii) preserve each Station's present customers and business relations; (iv) continue to make expenditures and engage in activities designed to promote the Stations; and (v) continue making capital expenditures, in the case of both (iv) and (v) of this Section 8.12(a), all consistent with past practices of the Stations.
(b) Seller shall: (i) subject to Section 13.2, maintain the Assets in their present condition (reasonable wear and tear in normal use excepted); and (ii) maintain all inventories of supplies, tubes, and spare parts at levels consistent with each Station's prior practices.
(c) Seller shall maintain its books and records in the usual and ordinary manner, on a basis consistent with prior periods.
(d) Seller shall comply with all laws, rules, ordinances and regulations applicable to it, to the Assets and to the business and operation of the Stations.
(e) Seller shall perform all Contracts without default and shall pay all of Seller's trade accounts payable in a timely manner; provided, however, that Seller may dispute, in good faith, any alleged obligation of Seller.
(f) Seller shall not, without the express written consent of Buyer which shall not be unreasonably withheld, and which shall be deemed given in the event Buyer has not responded to a written request therefor within ten (10) days: (i) sell or agree to sell or otherwise dispose of any of the Assets (A) other than in the ordinary course of business, and (B) unless such Assets are replaced prior to Closing by assets of equal or greater worth, quality and utility; (ii) acquiesce in any infringement, unauthorized use or impairment of the Intangible Property or change the Stations' call signs; (iii) enter into any employment contract on behalf of the Stations unless the same is terminable at will and without penalty; or (iv) enter into any other contract, lease or agreement that will be binding on Buyer after Closing unless Seller has entered into such contract, lease or agreement in the ordinary course of business and consistent with past practice and such contract, lease or agreement does not, in the aggregate, impose obligations in excess of Ten Thousand Dollars ($10,000), provided, however, that the limitation in this clause (iv) shall not apply to time sales agreements entered into by Seller in the ordinary course of business, consistent with past practice and in exchange for cash
but only if such time sales agreements provide for termination upon sixty (60) days notice by Seller (or by any party to which Seller assigns such agreement) without financial penalty.
ARTICLE IX.
CONDITIONS PRECEDENT
Contracts not identified as Material Contract in Schedule 1.3 are not assignable or any consent to such assignment is not obtained on or prior to the Closing Date, the Seller shall continue to use commercially reasonable efforts to obtain any such assignment or consent after the Closing Date. Until such time as such assignment or approval has been obtained, the Seller will cooperate with Buyer in any lawful and economically feasible arrangement to provide that the Buyer shall receive the Seller's interest in the benefits under any such Contract, including performance by the Seller as agent, if economically feasible; provided, however, that the Buyer shall undertake to pay or satisfy the corresponding liabilities for the enjoyment of such benefit to the extent that Buyer would have been responsible therefor if such consent or assignment had been obtained.
Date, duly executed, and in a form customary in transactions of this type and reasonably satisfactory to Seller.
ARTICLE X.
CLOSING
(a) A certificate executed by the Seller attesting to the Seller's compliance with the matters set forth in Sections 9.2.1, 9.2.2 and 9.2.3 together with (i) certified copies of the Certificates of Incorporation of the Seller and (ii) appropriate evidence of the Seller's authorization to enter into and consummate this Agreement.
(b) One or more assignments transferring to Buyer all of the interests of Seller in and to the Station Licenses, the Station Applications, and all other licenses, permits, and authorizations issued by any other governmental authorities that are used in or necessary for the lawful operation of the Stations.
(c) One or more bills of sale conveying to Buyer the Station Equipment.
(d) One or more assignments, together with all Required Consents assigning to Buyer all of the Contracts, the Station Records and the Intangible Property.
(e) One or more assignments, general warranty deeds or other appropriate instruments conveying to Buyer all rights of Seller in the Real Property and all consents to such assignments necessary for the legally enforceable assignment of such interests.
(f) The Covenant.
(g) An opinion of Seller's corporate and FCC Counsel, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, and to be for the benefit of and to be relied upon by Buyer and the Senior Lenders.
(h) The affidavit described in Section 5.16.
(i) The Estoppel Certificates obtained in accordance with Seller's covenant in Section 8.16 hereof.
(j) UCC-3 termination statements executed by each of the Owners' creditors, along with such other documents and instruments as may be necessary in order to evidence the termination, discharge and release of all Liens that such creditors maintain on the Assets.
(b) The Purchase Price as adjusted in accordance with Articles III, IV and Section 8.5 hereof.
(c) Such assumption agreements and other instruments and documents as are required to make, confirm, and evidence Buyer's assumption of and obligation to pay, perform, or discharge Seller's obligations under the Contracts and the Station Licenses to the extent the same are to be assumed by Buyer pursuant to the terms of this Agreement.
ARTICLE XI.
POST-CLOSING OBLIGATIONS
The parties covenant and agree as follows with respect to the period subsequent to the Closing Date:
provided that the Indemnitor shall not have the right to control the defense of any such claim or proceeding unless it has acknowledged in writing its obligation to indemnify the Indemnified Party fully from all liabilities incurred as a result of such claim or proceeding and then and periodically thereafter provides the Indemnified Party with reasonably sufficient evidence of the ability of the Indemnitor to satisfy any such liabilities. The parties will fully cooperate in any such action, and shall make available to each other any books or records useful for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within twenty (20) days after receiving notice thereof from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the expense of the Indemnitor, in any way in which the Indemnified Party deems to be in its best interest.
ARTICLE XII.
DEFAULT AND REMEDIES
(a) If on the date that would otherwise be the Closing Date any of the conditions precedent to the obligations of Seller set forth in this Agreement have not been satisfied in all material respects or waived in writing by Seller and Buyer shall not have cured such failure to satisfy such conditions within ten (10) days thereafter.
(b) If there shall be in effect on the date that would otherwise be the Closing Date any judgment, decree or order that would prevent or make unlawful the Closing.
(c) If the Closing shall not have occurred by the Upset Date.
(d) If there shall have been any material breach of any representation, warranty, covenant or agreement made herein on the part of Buyer and Buyer shall not have cured such breach within twenty (20) days after Seller has given notice to Buyer of such breach.
(a) If on the date that would otherwise be the Closing Date any of the conditions precedent to the obligations of Buyer set forth in this Agreement have not been satisfied in all material respects or waived in writing by Buyer and Seller shall not have cured such failure to satisfy such conditions within ten (10) days thereafter.
(b) If there shall be in effect on the date that would otherwise be the Closing Date any judgment, decree or order that would prevent or make unlawful the Closing.
(c) If the Closing shall not have occurred by the Upset Date.
(d) If there shall have been any material breach of any representation, warranty, covenant or agreement made herein on the part of Seller and Seller shall not have cured such breach within twenty (20) days after Buyer has given notice to Seller of such breach.
(a) Upon Closing, Seller shall return the Letter of Credit to Buyer.
(b) If this Agreement is terminated pursuant to Section 8.5, 12.2 or Article XIII and Section 12.3(c) does not apply and Buyer is not in material breach of this Agreement, Seller shall return the Letter of Credit to Buyer.
(c) If this Agreement is terminated pursuant to Section 12.1 or otherwise on account of a material breach by Buyer, and Seller is not in material breach of this Agreement, then Seller shall be entitled to draw upon the Letter of Credit as liquidated damages.
ARTICLE XIII.
TERMINATION
former condition as soon as possible. If such repair, replacement and restoration has not been completed prior to the Closing Date, Buyer may, at its option:
(a) elect to terminate this Agreement, but only if the failure to repair, replace and restore the lost or damaged property continues for a period in excess of sixty (60) days from the date that would be the Closing Date without consideration of this Section 13.2;
(b) elect to consummate the Transaction on the Closing Date in which event Seller shall pay to Buyer the amount necessary to restore the lost or damaged property to its former condition and against such obligation shall assign to Buyer all of Seller's rights under any applicable insurance policies; or
(c) elect to postpone the Closing Date, with prior consent of the Commission if necessary, which consent both parties will use their reasonable best efforts to obtain, until a date within fifteen (15) business days after Seller gives written notice to Buyer of completion of the repair, replacement and restoration of such lost or damaged property. If, after the expiration of that extension period, the lost or damaged property has not been adequately repaired, replaced or a restored, Buyer may terminate this Agreement, and the parties shall be released and discharged from any further obligation hereunder.
ARTICLE XIV.
POST-CLOSING OBLIGATIONS OF SELLER
ARTICLE XV.
GENERAL PROVISIONS
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 this Section 15.1 shall survive Closing hereunder.
(a) If to Seller:
GHB Broadcasting Corp.
1776 Briarcliff Road, NE, Suite A
Atlanta, GA 30306
Attn: Jake Bogan
Tel: 404-875-1110
Fax: 404-875-1186
and
Dennis F. Begley
Reddy Begley and McCormick
2175 K Street, NW, Suite 350
Washington, DC 20037
Tel: 202-659-5700
Fax: 202-659-5711
(Counsel to Seller)
(b) If to Buyer:
Beasley Broadcasting of Augusta, Inc. 3033 Riviera Drive, Suite 200 Naples, Florida 34103 Attn: Caroline Beasley Tel: (941) 263-5000
Fax: (941) 434-8950
and
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004
Tel: (202) 637-2221
Fax: (202) 637-2201
(Counsel to Beasley Broadcasting of Augusta, Inc.)
Any party may change its address for notices by notice to the others given pursuant to this Section.
hereby waives the application of any rule of law that would otherwise be applicable in connection with the interpretation of this Agreement, including but not limited to any rule of law to the effect that any provision of this Agreement shall be interpreted or construed against the party whose counsel drafted that provision.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by a respective duly authorized officer as of the date first written above.
GHB OF AUGUSTA, INC.
By: /s/ Jacob Bogan ------------------------------- Name: Jacob Bogan Title: Secretary - Treasurer |
GHB OF CLEARWATER* INC.
By: /s/ Jacob Bogan ------------------------------- Name: Jacob Bogan Title: Secretary - Treasurer |
JACOB E. BOGAN
/s/ Jacob Bogan
----------------------------------
BUYER:
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|
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: /s/ B. Caroline Beasley ----------------------------- Name: B. Caroline Beasley Title: Secretary |
WGAC LICENSE, LLC
By: BEASLEY BROADCASTING OF AUGUSTA, INC..
By: /s/ B. Caroline Beasley ------------------------------ Name: B. Caroline Beasley Title: Secretary |
THIRD AMENDED AND RESTATED
BYLAWS
OF
BEASLEY BROADCAST GROUP, INC.
ARTICLE I - OFFICES
Section 1. The registered office of Beasley Broadcast Group, Inc. (the "Corporation") shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the stockholders shall be held each year on a date and time designated by the Board of Directors. At such meeting, the stockholders shall elect the directors of the corporation and conduct such other business as may come before the meeting. The time and place of the annual meeting shall be determined by the Board of Directors. Special meetings of the stockholders, for any purpose, or purposes, unless otherwise prescribed by statute or by the Restated Certificate of Incorporation, may be called by the President and shall be called by the President or the Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire voting power of the issued and outstanding capital stock of the Corporation, provided, however, that if there are two vacancies in the offices for the Class A Directors (as defined in Article III, Section 1 below), then holders of a majority of the Class A Common Stock outstanding shall have the right to call a special meeting of stockholders for the purpose of electing Class A Directors to fill such vacancies. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2. Notice. Whenever stockholders are required or permitted to take action at a meeting, written or printed notice of every annual or special meeting of the
stockholders, stating the place, date, time, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than l0 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the Board of Directors, the Chairman of the Board, the Chief Executive Officer, the President or the Secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage prepaid and addressed to the stockholder at his or her address as it appears on the records of the corporation.
Section 3. Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least l0 days before every meeting of the stockholders, a complete list arranged in alphabetical order of the stockholders entitled to vote at such meeting, specifying the address of and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least l0 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
Section 4. Quorum. The presence of stockholders entitled to cast at least a majority of the votes that all stockholders are entitled to cast on a matter to be acted upon at a meeting of the stockholders shall constitute a quorum for the purposes of consideration and action on the matter, except as otherwise provided by statute or by the Restated Certificate of Incorporation. If a quorum is not present, the holders of the shares present in person or represented by proxy at the meeting and entitled to vote thereat shall have the power, by the affirmative vote of the holders of a majority of the voting power represented by such shares, to adjourn the meeting to another time or place. Unless the
adjournment is for more than thirty days or unless a new record date is set for the adjourned meeting, no notice of the adjourned meeting need be given to any stockholder, provided that the time and place of the adjourned meeting were announced at the meeting at which the adjournment was taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.
Section 5. Vote Required. When a quorum is present or represented by proxy at any meeting, the vote of a majority of the votes cast by all stockholders entitled to vote and, if any stockholders are entitled to vote as a class, the vote of a majority of the votes cast by the stockholders entitled to vote as a class, whether such stockholders are present in person or represented by proxy at the meeting, shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable statute or of the Restated Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 6. Voting Rights. Except as otherwise provided by the Delaware General Corporation Law or by the Restated Certificate of Incorporation of the Corporation or any amendments thereto and subject to Section 3 of ARTICLE VI hereof, each holder of Class A Common Stock shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of Class A held by such stockholder, and each holder of Class B Common Stock shall at every meeting of the stockholders shall be entitled to ten votes in person or by proxy for each share of Class B Common Stock held by such stockholder.
Section 7. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
ARTICLE III - DIRECTORS
Section 1. Number, Election and Term of Office. The number of directors
which shall constitute the whole Board of Directors shall be not less than one
(1) and not more than nine (9). The exact number of directors shall be
determined by resolution of the Board. The directors need not be stockholders.
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 3 of this Article, and each director elected shall hold
office until his successor is elected and qualified or until his or her death,
resignation or removal. From and after the first annual meeting of the
stockholders that occurs after the closing date of the initial public offering
of the Class A Common Stock, the holders of Class A Common Stock, voting
separately as a class, shall be entitled to elect two of the directors to be
elected at such meeting ("Class A Directors").
Section 2. Removal and Resignation. Any director or the entire Board of Directors may be removed at any time, with or without cause, by the vote of a majority of the votes cast by all stockholders entitled to vote at an election of directors, except that the Class A Directors may be removed without cause only by the vote of the holders of a majority of the shares of Class A Common Stock, and except as otherwise provided by statute. Any director may resign at any time upon written notice to the corporation.
Section 3. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a vote of the majority of the Board of Directors, and each director so chosen shall hold office until the next annual meeting of stockholders and until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided; provided, however, that any vacancy resulting from the resignation or removal of a Class A Director shall be filled by the remaining Class A Director, or, if there is no remaining Class A Director, by the vote of the holders of a majority of the shares of Class A Common Stock.
Section 4. Annual Meetings. The annual meeting of each newly elected Board of Directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of stockholders.
Section 5. Other Meetings and Notice. Regular meetings, other than the annual meeting, of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board. Special meetings of the Board of Directors may be called by or at the request of the chairman, the chief executive officer or the president on at least 24 hours notice to each director, either personally, by telephone, by mail, or by telegraph; in like manner and on like notice the secretary must call a special meeting on the written request of a majority of directors.
Section 6. Quorum. A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Committees. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees. Each committee shall consist of one or more of the directors of the corporation, which, to the extent provided in such resolution and not otherwise limited by statute, shall have and may exercise the powers of the Board of Directors in the management and affairs of the Corporation including without limitation the power to declare a dividend and to authorize the issuance of stock. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the
directors when required.
Section 8. Committee Rules. Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by the resolution of the Board of Directors designating such committee, but in all cases the presence of at least a majority of the members of such committee shall be necessary to constitute a quorum. In the event that a member and that member's alternate, if alternates are designated by the Board of Directors as provided in Section 7 of this ARTICLE III, of such committee is/are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.
Section 9. Communications Equipment. Members of the Board of Directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.
Section 10. Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
ARTICLE IV - OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by the Board of Directors and shall consist of a chairman of the board (if the Board of Directors so deems advisable and elects), a president, one or more vice- presidents, a secretary, a
treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the Board of Directors. Any number of offices may be held by the same person. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable, except the offices of president and secretary.
Section 2. Election and Term of Office. The officers of the Corporation shall be elected annually by the Board of Directors at the meeting of the Board of Directors held after each annual meeting of stockholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until the next annual meeting of the Board of Directors and until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interest of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term by the Board of Directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of the fact that he or she is also a director of the corporation.
Section 6. Chairman of the Board. The chairman shall preside at all meetings of the Board of Directors and all meetings of the stockholders and shall have such other powers and perform such duties as may from time to time be assigned to him by the Board of Directors.
Section 7. Vice Chairman of the Board. The Vice Chairman shall, in the absence
or disability of the Chairman, perform the duties and exercise the powers of the Chairman and shall perform such other duties and have such other powers as the Board of Directors may, from time to time, determine or these bylaws may prescribe.
Section 8. The Chief Executive Officer. The chief executive officer of the Corporation shall have such powers and perform such duties as are specified in these bylaws and as may from time to time be assigned to him by the Board of Directors. The chief executive officer shall have overall management of the business of the Corporation and its subsidiaries and shall see that all orders and resolutions of the boards of directors of the Corporation and its subsidiaries are carried into effect. The chief executive officer shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. The chief executive officer shall have general powers of supervision and shall be the final arbitrator of all differences among officers of the Corporation and its subsidiaries, and such decision as to any matter affecting the Corporation and its subsidiaries subject only to the Boards of Directors.
Section 9. The President. The president shall have such powers and perform such duties as are specified in these bylaws and as may from time to time be assigned to him by the Board of Directors. The president shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. The president shall have general powers of supervision and shall be the final arbitrator of all differences between officers of the
corporation, and such decision as to any matter affecting the Corporation subject only to the Board of Directors.
Section 10. Chief Operating Officer. The Chief Operating Officer, or if there shall be more than one, the Chief Operating Officers shall perform the duties and exercise the powers as the Board of Directors may, from time to time, determine or these bylaws may prescribe.
Section 11. Vice Presidents. The Vice President, or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the Board of Directors may, from time to time, determine or these bylaws may prescribe.
Section 12. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors; perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision he or she shall be; shall have custody of the corporate seal of the Corporation and the secretary, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 13. The Treasurer and Assistant Treasurer. The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements; and shall render to the president and the Board of Directors, at its regular meeting or when the Board of Directors so requires, an account of the corporation. If required by the Board of Directors, the treasurer shall give the Corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the Board of Directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 14. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors.
ARTICLE V - INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Right to Indemnification. Each person who was or is made party or is threatened to be made a party to or is otherwise involved (including involvement as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or officer of the Corporation or, while a director or
officer of the corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter, an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law ("DGCL"), as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide for broader
indemnification rights than permitted as of the date of these bylaws), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as provided in
Section 2 of this ARTICLE V with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the corporation. The right to indemnification conferred in this Section 1 of
this ARTICLE V shall be a contract right and shall include the obligation of the
Corporation to pay the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advance of expenses");
provided, however, that if and to the extent that the Board of Directors of the
Corporation requires, an advance of expenses incurred by an indemnitee in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Section 1 or otherwise. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same or lesser scope and effect as the foregoing indemnification of directors and officers.
Section 2. Procedure for Indemnification. Any indemnification of a director
or officer of the Corporation or advance of expenses under Section 1 of this
ARTICLE V shall be made promptly, and in any event within forty-five days (or,
in the case of an advance of expenses, twenty days) upon the written request of
the director or officer. If a determination by the Corporation that the director
or officer is entitled to indemnification pursuant to this ARTICLE V is
required, and the Corporation fails to respond within sixty days to a written
request for indemnity, the Corporation shall be deemed to have approved the
request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this ARTICLE V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to
Section 1 of this ARTICLE V, if any, has been tendered to the corporation) that
the claimant has not met the standards of conduct which make it
permissible under the DGCL for the Corporation to indemnify the claimant for the
amount claimed, but the burden of such defense shall be on the corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the DGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. The procedure for indemnification of
other employees and agents for whom indemnification is provided pursuant to
Section 1 of this ARTICLE V shall be the same procedure set forth in this
Section 2 for directors or officers, unless otherwise set forth in the action of
the Board of Directors of the Corporation providing for indemnification for such
employee or agent.
Section 3. Insurance. The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee or agent of the Corporation or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, whether or not the Corporation would have the power to indemnify such person against such expenses, liability or loss under the DGCL.
Section 4. Service for Subsidiaries. Any person serving as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture or other enterprise, at least 50% of whose equity interests are owned by the Corporation (hereinafter a "subsidiary" for purposes of this ARTICLE V) shall be conclusively presumed to be serving in such capacity at the request of the corporation.
Section 5. Reliance. Persons who after the date of the adoption of these bylaws
become or remain directors or officers of the Corporation or who, while a director or officer of the corporation, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this ARTICLE V in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this ARTICLE V shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.
Section 6. Non-Exclusivity of Rights. The rights to indemnification and to the advance of expenses conferred in this ARTICLE V shall not be exclusive of any other right which any person may have or hereafter acquire under these bylaws or the corporation's Restated Certificate of Incorporation or under any statute, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7. Merger or Consolidation. For purposes of this ARTICLE V, references to "the corporation" shall include any constituent corporation (including any constituent of a constituent) absorbed into the corporation in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this ARTICLE V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
ARTICLE VI - CERTIFICATES OF STOCK
Section 1. Form. Subject to the Restated Certificate of Incorporation, every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in
the name of the Corporation by the president or a vice-president, and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him or her in the corporation. Where a certificate is signed (l) by a transfer agent or an assistant transfer agent other than the Corporation or its employee or (2) by a registrar, other than the Corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimile. In case any officer or officers have signed a certificate or certificates, or whose facsimile signature or signatures have been used on certificate or certificates, shall cease to be such officer or officers of the Corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used on such certificate or certificates had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. All certificates surrendered to the Corporation for transfer shall be canceled, and no new certificate shall be issued in replacement until the former certificate for a like number of shares shall have been surrendered or canceled, except as otherwise provided in Section 2 with respect to lost, stolen or destroyed certificates.
Section 2. Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her
legal representative, to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 3. Fixing a Record Date. The Board of Directors may fix in advance
a record date for the determination of stockholders entitled to notice of, and
to vote at, any meeting of stockholders and any adjournment thereof;
stockholders entitled to consent to corporate action in writing without a
meeting; stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or entitled to exercise any rights in
respect to any change, conversion or exchange of stock; or, for the purpose of
any other lawful action, which record date may not precede the date on which the
resolution fixing such record date is adopted by the Board of Directors. The
record date for the determination of stockholders entitled to notice of, and to
vote at, a meeting of stockholders shall not be more than 60 days nor less than
10 days before the date of such meeting. The record date for the determination
of stockholders entitled to consent to corporate action in writing without a
meeting shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. The record date for
the determination of stockholders with respect to any other action shall not be
more than 60 days before the date of such action. If no record date is fixed:
the record date for determining stockholders entitled to notice of, and to vote
at, a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held; the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting when no prior action by the Board of Directors is
required by the Delaware General Corporation Law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of
the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded; and, the record date for determining stockholders with respect to any other action shall be the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VII - GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Restated Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Restated Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, equalize dividends, repair or maintain any property of the corporation, or for any other purpose, and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the Board of Directors or a duly authorized committee thereof.
Section 3. Contracts. The Board of Directors may authorize any officer or officers, or any agent or agents, of the Corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
Section 4. Loans. The Corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation or of its subsidiary, including any officer or employee who is a director of the Corporation or
its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing contained in this section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the Corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be the calendar year unless otherwise fixed by resolution of the Board of Directors.
Section 6. Corporate Seal. The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7. Voting Securities Owned by Corporation. Voting securities in any other corporation held by the Corporation shall be voted by the president or the vice president, unless the Board of Directors specifically confers authority to vote with respect thereto upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
Section 8. Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand upon oath stating the purpose thereof, have the right during the usual hours of business to inspect for any proper purpose the corporation's stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person's interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The
demand under oath shall be directed to the Corporation at its registered office in the State of Delaware or at its principal place of business.
Section 9. Section Headings. Section headings in these bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision of these bylaws is or becomes inconsistent with any provision of the Restated Certificate of Incorporation, the Delaware General Corporation Law or any other applicable law, the provision of these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII - AMENDMENTS
These bylaws may be amended, altered or repealed and new bylaws adopted at any meeting of the Board of Directors by a majority vote. The fact that the power to adopt, amend, alter or repeal the bylaws has been conferred upon the Board of Directors shall not divest the stockholders of the same powers.
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of February __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between the Beasley FM Acquisition Corp., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller communications tower facilities used in the operation of radio broadcast stations WIKS-FM, WRXK-FM and WZFX-FM (each a "Tower" and collectively the "Towers") and certain personal property belonging to Seller and associated with the Towers;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The first clause in the first sentence of the first recital is amended and restated as follows:
WHEREAS, Seller owns three (3) communications tower facilities used in the operation of radio broadcast stations WIKS-FM, WRXK-FM and WZFX-FM (each a "Tower" and collectively the "Towers");
2. The first sentence of Section 5(d) of the Agreement is amended and restated as follows:
3. Buyer and Seller acknowledge that certain of the Towers are
occupied, or will be occupied, by various tenants pursuant to tower leases
between third party lessees and the Seller, for space on certain of the Towers,
such tower leases all made effective prior to the effective date of this
Agreement and shall include without limitation: (x) with respect to the WIKS-FM
Tower: (i) that certain Option and Lease Agreement, dated February 10, 1989, by
and between WIKS-FM, Inc. (predecessor-in-interest to Seller) and MC Radio
Partnership, Inc. ("MC Radio"), such agreement leasing to MC Radio tower space
located between seven hundred twenty-five (725) and eight hundred twenty-five
(825) feet from ground level (the "MC Radio Lease"); (ii) that certain lease
agreement, dated July 15, 1996, by and between WIKS-FM, Inc. and North Carolina
Electric Membership Corporation ("NC Electric"), such agreement leasing to NC
Electric tower space located three hundred eighty (380) feet from ground level
(the "NC Electric Lease"); and (iii) that certain lease agreement, dated August
15, 1996, by and between WIKS-FM, Inc. and Neuse Amateur Radio Operators
Association ("Neuse"), such agreement leasing to Neuse tower space located
between two hundred fifty (250) and three hundred forty
(340) feet from ground level (the "Neuse Lease," and together with the MC Radio
Lease and NC Electric Lease, collectively called herein the "WIKS-FM Tower
Leases"); (y) with respect to the WRXK-FM Tower (i) that certain PCS Site
Agreement, dated August 27, 1997, by and between Seller and Sprint Spectrum,
L.P., ("Sprint"), as amended by that certain Access Clarification Addendum dated
August 27, 1997, such agreement leasing to Sprint tower space located between
two hundred twenty (220) and two hundred forty (240) feet from ground level (the
"Sprint Lease"); (ii) that certain Tower Option and Lease Agreement, dated as of
June 11, 1998, by and between Seller and BellSouth Mobility, Inc. ("BellSouth"),
as amended by (I) that certain Addendum to Tower Option and Lease Agreement
dated as of _____________ 1998, by and among Seller, George G. Beasley ("Owner")
and BellSouth and (II) that certain Addendum to Tower Option and Lease Agreement
effective as of March 4, 1999, by and among Seller, Owner and BellSouth, such
Tower Option and Lease Agreement, as amended, leasing to BellSouth tower space
located between one hundred twenty (120) and one hundred forty (140) feet above
ground level on the WRXK-FM Tower (called collectively herein the "BellSouth
Lease") and (iii) that certain Lease of Site For Communication Facilities, dated
October 1, 1997, by and between Beasley Broadcasting of Western Florida
(predecessor-in-interest to Seller) and Paging Network of Tennessee, d.b.a.
PageNet of Tpa., Inc. ("PageNet"), such Lease leasing to PageNet antenna space
located between the following tower locations above ground level: (a) two
hundred forty (240) and two hundred sixty (260) feet; (b) two hundred sixty
(260) and two hundred eighty (280) feet (two side-mounted antennas); (c) three
hundred twenty (320) and three hundred forty (340) feet; (d) three hundred forty
(340) and three hundred sixty (360) feet and (e) three hundred sixty (360) and
three hundred eighty (380) feet (the "PageNet Lease," and together with the
Sprint Lease and BellSouth Lease, collectively called herein the "WRXK-FM Tower
Leases"); and (z) with respect to the WZFX-FM Tower: (i) that certain Lease
Agreement, dated April 20, 1993, by and between Lessee and Coastal Electronics
("Coastal"), such agreement leasing to Coastal tower space five hundred twenty-
five (525) feet from ground level on the WZFX Tower (the "Coastal Lease") and
(ii) that certain lease agreement by and between Satellite Paging, Inc.
("Satellite," as successor-in-interest to Telephone Answering Service of
Fayetville, Incorporated) and Lessee (successor-in-interest to Joyner
Communications, Inc.), dated February 16, 1995, leasing to Satellite tower space
four hundred fifty-six (456) feet from ground level on the WZFX Tower (the
"Satellite Lease," and together with the Coastal Lease, WIKS-FM Tower Leases and
WRXK-FM Tower Leases, collectively called herein the "Tower Leases").
4. The section entitled "WIKS-FM (MAIN TOWER)" in Exhibit A is hereby deleted.
5. The section heading "WIKS-FM (STL TOWER)" in Exhibit A and the first sentence under such heading are hereby amended and restated as follows:
WIKS-FM
That certain one thousand twenty (1020) foot communications tower situate on a tract of land more particularly described as follows:
6. The first sentence under the section entitled "WRXK" in Exhibit A shall be amended and restated as follows:
That certain four hundred ninety-five (495) foot communications tower situated on a tract of land more particularly described as follows:
7. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
8. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY FM ACQUISITION CORP.
By: ________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
BY: ________________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley FM Acquisition Corp., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor antenna space on a one thousand seventy-four (1,074) foot communications tower facility used in the operation of radio broadcast station WZFX-FM (the "WZFX-FM Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the WZFX-FM Tower obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
10. Section 2.01 of the Lease is amended and restated as follows:
11. The second sentence of Section 13.01 of the Lease is hereby deleted.
12. The last sentence of Section 14.01 of the Lease is hereby deleted.
13. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
14. The text of Exhibit C of the Lease is amended and restated as follows:
(1) One (1) Yagi FM antenna located four hundred seventy-five
(475) feet from ground level on the Tower.
(2) One (1) Mark 4 Stl FM antenna located five hundred (500) feet from ground level on the Tower.
(3) One (1) Electronic Research, Inc. (FMH-6) antenna located nine hundred eighty-one (981) feet from ground level on the Tower.
15. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
16. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
17. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: _______________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY FM ACQUISITION CORP.
By: _______________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley FM Acquisition Corp., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor antenna space on a four hundred (400) foot communications tower facility used in the operation of radio broadcast station WRXK-FM (the "WRXK-FM Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the WRXK-FM Tower obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
18. Section 2.01 of the Lease is amended and restated as follows:
hundred eighty (380) feet (the "PageNet Lease," and together with the Sprint Lease and BellSouth Lease, collectively called herein the "WRXK-FM Tower Leases");
19. The second sentence of Section 13.01 of the Lease is hereby deleted.
20. The last sentence of Section 14.01 of the Lease is hereby deleted.
21. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
22. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
23. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
24. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: _________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY FM ACQUISITION CORP.
By: _________________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley FM Acquisition Corp., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor antenna space on a one thousand (1,000) foot communications tower facility used in the operation of radio broadcast station WIKS-FM (the "WIKS-FM Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the WIKS-FM Tower obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
25. The first recital is amended and restated as follows:
WHEREAS, Lessor owns one (1) one thousand (1000) foot communications tower described on Exhibit A attached hereto (the "Tower"), situated on a certain tract of real estate located in New Bern, North Carolina and 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 except for that certain transmitter building and tower on the Tower Site owned by CTC Media Group and used in the operation of radio broadcast station WLOJ);
26. The words "the Tower" shall replace the words "such Towers" in each sentence or section heading in the Lease where the words "such Towers" appear.
27. The word "Tower" shall replace the word "Towers" in each sentence or section heading in the Lease where the word "Towers" appears.
28. Section 2.01(a) of the Lease is hereby amended and restated:
(a) Space on the Tower as such space is described on Exhibit C
attached hereto, for the purposes of the broadcast transmission of WIKS-FM, New
Bern, North Carolina ("WIKS"), subject to the lease of certain tower space to:
(i) MC Radio Partnership, Inc. ("MC Radio"), pursuant to that certain Option and
Lease Agreement, dated February 10, 1989, by and between MC Radio and WIKS-FM,
Inc. (predecessor-in-interest to Lessor); (ii) North Carolina Electric
Membership Corporation ("NC Electric"), pursuant to that certain lease
agreement, dated July 15, 1996, by and between NC Electric and WIKS-FM, Inc.
(predecessor-in-interest to
Lessor); and (iii) Neuse Amateur Radio Operators Association ("Neuse"), pursuant to that certain lease agreement dated August 15, 1996, by and between Neuse and WIKS-FM;
29. Section 2.01(b) is hereby deleted.
30. The second sentence of Section 13.01 of the Lease is hereby deleted.
31. The last sentence of Section 14.01 of the Lease is hereby deleted.
32. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
33. Exhibit D is hereby deleted and all references to Exhibits E, F, G and H in the Lease, respectively, shall be amended and restated as references to Exhibits D, E, F and G, respectively.
34. The section entitled "WIKS-FM (MAIN TOWER)" in Exhibit A is hereby deleted.
35. The heading "WIKS-FM (STL)" in Exhibit A is hereby amended and restated to read:
WIKS-FM
36. The section entitled "WIKS-FM (MAIN TOWER)" in Exhibit B is hereby deleted.
37. The word "MAIN" shall be deleted from the section heading for Exhibit C. The following is hereby added to Exhibit C:
(1) One Stl antenna located two hundred (200) feet from ground level on the Tower.
(2) One antenna used in the operation of WXNR located eight hundred thirty (830) feet from ground level on the Tower.
(3) One antenna located nine hundred eighty (980) feet from ground level on the Tower.
38. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
39. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
40. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: _______________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY FM ACQUISITION CORP.
By: _______________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of February __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between the Beasley Broadcasting of Eastern North Carolina, Inc., a North Carolina corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller two (2) communications tower facilities used in the operation of radio broadcast station WKML-FM (each a "Tower" and collectively the "Towers") and certain personal property belonging to Seller and associated with the Towers;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The first recital of the Agreement is amended and restated as follows:
WHEREAS, Seller owns certain real and personal property comprising one parcel of real property and two (2) communications tower facilities, one of such towers a one thousand and twenty-three (1023) foot tower (the "Stainless Tower"), and the second a five hundred (500) foot tower (the "Sabre Tower," and together with the Stainless Tower, called collectively herein the "Towers"), located in Saddletree Township, North Carolina and used in connection with the operation of radio broadcast station WKML-FM (the "Tower Site").
2. The first sentence of Section 5(d) of the Agreement is amended and restated as follows:
Buyer and Seller acknowledge that certain of the Towers are occupied, or will be occupied, by various tenants pursuant to tower leases between third party lessees and the Seller, for space on certain of the Towers, such tower leases all made effective prior to the effective date of this Agreement and shall include without limitation: (x) with respect to the Stainless Tower, that certain Lease Agreement, dated December 1, 1993, by and between Seller and Professional Communications ("Professional"), such agreement leasing to Professional tower space located at seven hundred seventy (770) and eight hundred (800) feet, respectively, from ground level (the "Professional Lease"), and (y) with respect to the Sabre Tower, that certain Lease Agreement, dated October 16, 1998, by and between Seller and BellSouth Telecommunications, Inc., ("BellSouth"), such agreement leasing to BellSouth tower space located at four hundred eighty (480) feet above ground level (the "BellSouth Lease," and together with the Professional Lease, collectively called herein the "Tower Leases").
3. The first sentence under the section heading "WKML-FM TOWER" in Exhibit A is hereby amended and restated as follows:
(1) That certain one thousand (1000) foot communications tower manufactured by Stainless and located at the coordinates 34'46' 50.226"N, 79'02' 44.445"W on the tract of land described below and (2) that certain five hundred foot (500) communications tower manufactured by Sabre and located at the coordinates 34'46' 51.284"N, 79'02' 40.009"W on that tract of land described below:
4. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
5. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY BROADCASTING OF EASTERN NORTH CAROLINA,
INC..
By: __________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
BY: __________________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Broadcasting of Eastern North Carolina, Inc., a North Carolina corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor antenna space on two (2) communications tower facilities (each a "Tower" and collectively the "Towers"), and space in a transmitter building, each used in the operation of radio broadcast station WKML-FM, such Towers and transmitter building space used for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Towers and the transmitter building space obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
7. The first recital of the Lease is amended and restated as follows:
WHEREAS, Lessor owns two (2) communications towers described on
Exhibit A attached hereto, one of such towers a one thousand and twenty three
(1023) foot tower (the "Stainless Tower"), and the second a five hundred (500)
foot tower (the "Sabre Tower," and together with the Stainless Tower, called
collectively herein the "Towers"), together with other improvements on a certain
tract of real estate located in Saddletree Township, North Carolina and
described in Exhibit B attached hereto (hereinafter referred to as the "Tower
Site"; the term "Tower Site" shall also include any appurtenant easements or
improvements on such land, including, without limitation, any buildings or other
structures, but not including that certain transmitter building owned by a
tenant of Lessor);
8. Section 2.01(a) of the Lease is hereby amended and restated as follows:
(a) Space on the Towers, as more fully described in Exhibit C
hereto, for the purpose of the broadcast transmission of WKML-FM, Saddle
Township, North Carolina, such leasehold interests subject to: (x) with respect
to the Stainless Tower, that certain Lease Agreement, dated December 1, 1993, by
and between Seller and Professional Communications ("Professional"), such
agreement leasing to Professional tower space located at seven hundred seventy
(770) and eight hundred (800) feet, respectively, from ground level (the
"Professional Lease"), and (y) with respect to the Sabre Tower, that certain
Lease Agreement, dated October 16, 1998, by and between Seller and BellSouth
Telecommunications, Inc., ("BellSouth"), such agreement leasing to BellSouth
tower space located at four hundred eighty
(480) feet above ground level (the "BellSouth Lease," and together with the Professional Lease, collectively called herein the "Tower Leases").
9. The second sentence of Section 13.01 of the Lease is hereby deleted.
10. The last sentence of Section 14.01 of the Lease is hereby deleted.
11. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
12. The text of Exhibit A is amended and restated as follows:
(1) That certain one thousand (1000) foot communications tower manufactured by Stainless and located at the coordinates 34'46' 50.226"N, 79'02' 44.445"W on the tract of land described below and (2) that certain five hundred foot (500) communications tower manufactured by Sabre and located at the coordinates 34'46' 51.284"N, 79'02' 40.009"W both such towers situated on that certain tract of land described on Exhibit B herein:
13. The text of Exhibit C of the Lease is amended and restated as follows:
(1) One (1) Stl Mark 6 antenna located five hundred (500) feet from ground level on the Stainless Tower.
(2) One (1) side-mounted Marti receiving antenna located eight hundred seventy (870) feet from ground level on the Stainless Tower.
(3) One (1) Shively Labs 8 bay Antenna located on top of the Stainless Tower.
14. The text of Exhibit D of the Lease is amended and restated as follows:
One (1) concrete block transmitter building with approximately six hundred thirty (630) square feet of interior space. Lessee maintains a transmitter which occupies approximately two hundred (200) feet of the interior space of the transmitter building and the tenant under the Tower Lease maintains a transmitter which occupies approximately two hundred (200) feet of the interior space of the transmitter building.
15. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
16. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
17. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: ___________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY BROADCASTING OF EASTERN NORTH CAROLINA,
INC.
By: ___________________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of February __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between the Beasley Broadcasting of New Jersey, Inc., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller two (2) communications tower facilities used in the operation of radio broadcast station WTMR-AM (each a "Tower" and collectively the "Towers," one of such Towers used exclusively for broadcast during daytime hours and called therein the "Daytime Tower"), and certain personal property belonging to Seller and associated with the Towers;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The first sentence of Section 5(d) of the Agreement is amended and restated as follows:
Buyer and Seller acknowledge that the Daytime Tower is occupied, or will be occupied, by a tenant pursuant to that certain Sale and Lease Agreement, dated June 29, 1981 by and between Family Stations, Inc. ("Family"), and Roberts Broadcasting Company ("RBC"), as amended by that certain Amendment to Sale and Lease Agreement, dated as of October 1, 1986, by and between Family and RBC, such amendment extending the term of the Sale and Lease Agreement to June 28, 2080 and terminating Family's obligation for the rest of the term to make lease payments for Family's space on the Daytime Tower (such agreement and amendment collectively called herein the "RBC Lease"), such RBC Lease: (i) leasing to Family certain space on the Daytime Tower and certain real property within the Tower Site, and (ii) assigning to Gore-Overgaard Broadcasting, Inc. ("Gore"), all of RBC's right and interest to and in the RBC Lease, such rights subsequently assigned to Seller pursuant to that certain Assignment and Assumption Agreement, dated December 1, 1998, by and between Gore and Seller.
2. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
3. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
4. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW JERSEY.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY BROADCASTING OF NEW JERSEY, INC.
By: _________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
BY: _________________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Broadcasting of New Jersey, Inc., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor two (2) communications tower facilities used in the operation of radio broadcast station WTMR-AM (each a "Tower" and collectively the "Towers," one of such Towers used exclusively for broadcast during daytime hours and called therein the "Daytime Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Towers obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
5. The first recital is amended and restated as follows:
WHEREAS, Lessor owns two (2) communications towers described on Exhibit attached hereto (each a "Tower" and collectively the "Towers," one of such Towers used exclusively for broadcast during daytime hours and called herein the "Daytime Tower"), together with other improvements on a certain tract of real estate located in Camden, New Jersey and described in Exhibit B attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower Site" shall also include any appurtenant easements or improvements on such land, including, without limitation, any buildings or other structures, but not including that certain studio building owned by Lessor on such land);
6. Section 2.01(a) of the Lease is hereby amended and restated:
(a) The Towers, for the purposes of the broadcast transmission of WTMR-AM, Camden, New Jersey ("WTMR"), provided that the lease of the Daytime Tower is subject to the lease of certain tower space to Family Stations, Inc. ("Family"), pursuant to that certain Sale and Lease Agreement, dated June 29, 1981, by and between Family and Roberts Broadcasting Company ("RBC"), as amended by that certain Amendment to Sale and Lease Agreement, dated as of October 1, 1986, by and between Family and RBC, such amendment extending the term of the Sale and Lease Agreement to June 28, 2080 and terminating Family's obligation for the rest of the term to make lease payments for Family's space on the Daytime Tower (such agreement and amendment collectively called herein the "RBC Lease"), such RBC Lease: (i) leasing to Family certain space on the Daytime Tower and certain in real property within the Tower Site and (ii) assigning to Gore-Overgaard Broadcasting, Inc. ("Gore"), all of
RBC's right and interest to and in the RBC Lease, such rights subsequently assigned to Lessee pursuant to that certain Assignment and Assumption Agreement, dated December 1, 1998, by and between Gore and Lessee;
7. The second sentence of Section 13.01 of the Lease is hereby deleted.
8. The last sentence of Section 14.01 of the Lease is hereby deleted.
9. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
10. The first sentence under the heading "WTMR-AM" in Exhibit B is hereby amended and restated to read:
That certain tract of land (exclusive of the studio building used for the broadcast operation of WTMR-AM thereon) more particularly described as follows:
11. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
12. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
13. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW JERSEY.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: __________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY BROADCASTING OF NEW JERSEY, INC.
By: __________________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of February __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between the Beasley FM Acquisition Corp., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller communications tower facilities used in the operation of radio broadcast stations WMGV-FM, WUKS-FM and WAZZ-AM (each a "Tower" and collectively the "Towers") and certain personal property belonging to Seller and associated with the Towers;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The Purchase Price is hereby amended and restated as follows:
Nine Hundred and Nine Thousand One Hundred and Seven Dollars
($909,107.00)
2. The Payments Prior To Maturity Date under the Purchase Note are hereby amended and restated as follows:
Six Thousand Nine Hundred and Twenty Three Dollars and Thirty Seven Cents ($6,923.37)
3. The Monthly Rent Payment and the Rent Per Lease Year under the Lease are hereby amended and restated as follows:
Monthly Rent Payment $ 6,923.37 Rent Per Lease Year $83,080.44
4. The first sentence under the section entitled "WMGV-FM" in Exhibit A of the Lease is hereby amended and restated as follows:
That certain one thousand twenty-four (1024) foot communications tower situated on that certain tract of land more particularly described as follows:
5. The second sentence under the section entitled "WUKS-FM" in Exhibit A of the Lease is hereby amended and restated as follows:
Lying and being in Red Springs Township, Robeson County, North Carolina, about 1.2 miles north of the Town of Red Springs, about 0.35 miles southwest of the intersection of Secondary Road No. 1700 with Secondary Road No. 1806, 1546.6 feet northeast of the centerline intersection of Secondary Road No. 1806 with N.C. Highway No. 211, and on the northwest side of and adjoining soil Secondary Road No. 1806. Bounded on the southeast by Secondary Road No. 1806, on the southwest by Building Red Springs, Inc., and on the northwest and northeast by other lands of Frederick R. Keith, Jr. and Thomas J. Rogers, and being more particularly described as follows:
BEGINNING at an iron rod in the northwestern right-of-way (30 feet from center) of soil Secondary Road No. 1806, said iron being the southwest corner of the tract of which this is a part, and runs thence as the northwestern right-of-way of said Secondary Road No. 1806, North 72 degrees 25 minutes East 413.50 feet to an iron rod; thence as a new line, North 17 degrees 28 minutes West 364.63 feet to an iron rod; thence as another new line, South 72 degrees 25 minutes West 413.50 feet to an iron rod in the southwestern line of the tract of which this is a part; thence as the original southwestern line, South 17 degree 28 minutes East 364.63 feet to the BEGINNING, containing 3.46 acres as shown on a map entitled "PROPERTY OF RADIO
STATION WYRU," prepared by George T. Paris, RLS, dated May 11, 1977, and being a portion of a 10.5 acre tract of land conveyed from K and R Broadcasting Corporation to Frederick R. Keith, Jr. and Thomas J. Rogers by deed dated August 28, 1969, and recorded in Deed Book 17-K, page 186, Robeson County Registry.
6. The last sentence under the section entitled "WAZZ-AM" in Exhibit A of the Lease is hereby amended and restated as follows:
The real property conveyed hereunder shall be exclusive of the building which is located on the WAZZ-AM Tower Site and used as a studio for radio broadcast stations WAZZ-AM and WFLB-FM, but shall be inclusive of the transmitter building situated near the base of the WAZZ-AM Tower on the WAZZ-AM Tower Site.
7. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
8. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY FM ACQUISITION CORP.
By: ____________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
BY: ____________________________________
Name: B. Caroline Beasley
Title: Secretary
This Agreement of Sale (the "Agreement") is made this ___ day of December, 2000, between WJST License Limited Partnership, a Delaware limited partnership (the "Seller") and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprising one parcel of real property and one (1) communications tower facility (the "Tower"), located in North Fort Myers, Florida used in the operation of radio broadcast station WWCN-AM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the Tower and certain real and personal property belonging to Seller and associated with the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
Seller agrees to sell, transfer, assign, convey and deliver to Buyer and Buyer agrees to purchase and accept from Seller, the following assets upon the terms and conditions contained herein (collectively, the "Assets"):
(a) Those certain tracts of land, and easements or appurtenances incident to such tracts of land, that are associated with the Tower Site (collectively, such land, easements and appurtenances, the "Land"), and the Tower, such Tower and Land more particularly described in Exhibit A attached hereto and incorporated herein.
(a) Upon the terms and subject to the conditions contained herein, Buyer shall assume and become responsible for any and all liabilities and obligations arising out of, or relating to events occurring after 12:01 am Eastern Standard Time on the Closing Date (the "Adjustment Time") the ownership of the Land and the Tower, and the operation of the business relating to the Assets (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13, it is understood and agreed that all liabilities to third parties relating to the Assets that arise out of any act, event, or transaction of Seller or the ownership of the Assets or the operator of the business relating to the Assets subject to the provisions of Section 13 prior to the Closing Date (the "Retained Liabilities") shall remain the responsibility of Seller. Buyer shall not be required to defend any suit or claim arising out of any Retained Liabilities, and Seller shall and hereby agrees to satisfy in due course all such Retained Liabilities, and Seller shall protect and forever hold Buyer harmless from all claims with respect to such Retained Liabilities. It is understood and agreed that all liabilities relating to the Assets that arise out of any act, event, or transaction of Buyer
following the Closing Date (the "Assumed Liabilities") shall be the responsibility of Buyer. Seller shall not be required to defend any suit or claim arising out of any Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due course all such Assumed Liabilities, and subject to the provisions of Section 13 Buyer shall protect and forever hold Seller harmless from all claims with respect to such Assumed Liabilities.
(a) The purchase price for the Assets shall be the amount of Two Hundred Fifty Five Thousand One Hundred Eighty Seven Dollars ($255,187.00) (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.
(a) The Purchase Price shall be payable at Closing (as defined in
Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall deliver to Seller at Closing an unsecured promissory note of Buyer in the aggregate principal amount of Two Hundred Fifty Five Thousand One Hundred Eighty Seven Dollars ($255,187.00), substantially in the form of Exhibit B (the "Purchase Note").
(a) Transfer of title to the Land shall be by deed from the Seller to the Buyer (a "Deed"), which Deed shall be in the Form of Exhibit C attached hereto and incorporated herein. Transfer of ownership of the Tower and assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be pursuant to the Assignment, Bill of Sale and Assumption Agreement from the Seller to Buyer in the form of Exhibit D attached hereto and incorporated herein (the "Assignment, Bill of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of all liens, encumbrances other than Permitted Encumbrances, if any; otherwise the title to the Land shall be good and marketable or such as will be insured by a reputable title insurance company at regular rates. "Permitted Encumbrances" shall mean: (i) encumbrances for taxes, assessments, or governmental charges or levies which are not yet due and payable, or that, subject to adequate security for payment, are being contested; (ii) existing building restrictions, ordinances,
easements of roads, privileges, or rights of public service companies or other rights of way, other restrictions or conditions of record, if any or other encumbrances disclosed in this Agreement (including the Exhibits attached hereto); (iii) easements, rights of way or other encumbrances that do not have a material adverse effect on the Assets or the operation of the business relating to the Assets as currently operated; (iv) encumbrances imposed by law, such as materialmen's, mechanic's, carrier's, workmen's, or repairmen's liens or other similar encumbrances attaching in the ordinary course of business or securing obligations that are not overdue; (v) encumbrances securing indebtedness, which will be removed prior to or at the Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed by Buyer pursuant to Section 2.
(c) As soon as practicable following the Closing, or at such other time as the parties agree, Seller, at its expense, shall obtain and deliver to Buyer a commitment for title insurance (the "Title Commitment") issued by a nationally recognized title company in the ALTA Owner's Form Policy of Title Insurance (each a "Title Policy" and collectively, "Title Policies") covering the Land, setting forth the current status of title thereto, showing all recorded liens, claims, encumbrances, easements, rights-of-way, encroachments, reservations, restrictions and any other matters of public record affecting title to the Land pursuant to which such title company agrees to issue to Buyer the Title Policies. The cost of the Title Policies shall be borne by the Buyer. Seller shall execute such customary documents as the title company reasonably requests, including, but not limited to, an affidavit of debts and liens and customary closing statements.
(a) Current real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principle that all expenses and income arising from the operation of the Assets up through the Adjustment Time shall be for the account of Seller, and all expenses and income arising from the operation of the business relating to the Assets acquired by Buyer after the Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at such other time as the parties agree, Buyer shall deliver to Seller a certificate from Buyer which sets forth as of the Adjustment Time, all adjustments to be made as provided in Section 6(a) above (the "Buyer's Certificate"). Buyer shall provide Seller or its representatives access to copies of such portions of books and records Seller may reasonably request solely for the purposes of verifying such adjustments. The Buyer's Certificate shall be final and conclusive unless objected to by Seller in writing within ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach agreement as to the amount of the adjustments to be made hereunder within thirty (30) days after receipt of such written objection, which agreement, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review.
(c) In the event of a disagreement between Buyer and Seller with respect to the accounting to be made hereunder, the parties agree that a public accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of such disagreement.
(d) Any amounts due for the adjustments provided for herein shall be paid within thirty (30) business days after final determination.
(a) Seller and Buyer shall share equally the costs of preparation of the Deed, acknowledgement of the Deed, Federal, state and local revenue stamps, and real estate transfer taxes.
(b) All other costs and expenses incurred by the Parties in this transaction, including, but not limited to attorneys' fees, shall be paid by the party incurring them.
(a) Closing of the transactions contemplated by this Agreement (the "Closing") shall occur at a place and time mutually agreeable to Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Buyer being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Buyer to consummate the transactions contemplated under this Agreement shall
have been obtained, (iii) no order, decree or judgment of any court, agency or
other governmental authority shall have been issued based on or arising out of
the conduct, action, inaction, qualifications or status of Buyer or any of its
affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b), and (v) the delivery by Buyer of Buyer's Closing Documents (as defined in
Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned upon (i) all representations and warranties of Seller being then true and complete in all material respects as if made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specific date, in which case such representation or warranty shall have been true and correct as of such date, (ii) all consents of third parties required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, (iii) no order, decree or judgment of any court, agency or other governmental authority shall have been issued based on or arising out of the conduct, action, inaction, qualifications or status of Seller or any of its affiliates, which would render it unlawful as of the Closing Date to effect that 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.
(a) At Closing, Seller shall execute and/or deliver to Buyer the following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Bill of Sale and Assumption Agreement;
(iii) A certificate from an officer of Seller reasonably acceptable to Buyer confirming the accuracy of the representations and warranties in Section 10 as of the Closing Date;
(iv) Authorizing resolutions or minutes from Seller approving this Agreement and the transactions contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not a "foreign person" (as defined in Section 1445(f)(3) of the Code and the regulations issued thereunder); and
(vi) A lease agreement, by and between Buyer, as lessor, and Seller, as lessee, substantially in the form of Exhibit E (the "Lease Agreement").
(b) At Closing, Buyer shall execute and/or deliver to Seller the following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this Agreement and the transactions contemplated herein;
(ii) The Assignment, Bill of Sale and Assumption Agreement;
(iii) 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;
(iv) The Purchase Note executed by a duly authorized officer of Buyer;
(v) A lease agreement, by and between Buyer, as lessor, and Seller, as lessee, substantially in the form of Exhibit E (the "Lease 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.
As a material inducement to Buyer to enter into this Agreement, Seller represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Tower and the Land (or such condition of title as will be insured by any reputable title insurance company at their regular rates), and the Assets are free and clear of liens, encumbrances, restrictions and security interests other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and deliver this Agreement and Seller's Closing Documents, and to perform its obligations hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed and delivered, will constitute valid and binding agreements of Seller, enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with, or result in, a breach of the terms of any agreements or instruments to which the Seller is a party or which would result in the creation or imposition of any lien, charge or encumbrance on, or give to others any interest in or right to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all outstanding obligations for utilities and taxes through the Closing Date except for such items as are covered by the proration of items of income and expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with, any person, entity, or authority will be required in connection with the execution and delivery of this Agreement or the transactions contemplated by this Agreement.
(g) Assuming all consents and approvals required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, neither the execution, delivery, and performance of, nor Seller's compliance with, the terms and provisions of this Agreement will conflict with, or result in, a breach of any of the terms, conditions, or provisions of the Articles of Incorporation or Bylaws of Seller, or any judgment, order, injunction, decree, regulation, or ruling of any court or any other governmental authority to which Seller is subject or any material agreement or contract to which Seller is a party or to which it is subject, or constitute a material default thereunder.
(h) Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
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.
All of the provisions of this Agreement and of the Closing Documents
and all of the representations, warranties, considerations, and agreements
contained herein and in the Closing Documents shall survive Closing and continue
in full force and effect for a period of twelve (12) months from the Closing
Date; provided that if a claim for indemnification is made by either party under
Section 13 hereof within such twelve (12) month period, the provisions of
Section 13 shall survive until resolution of such claim. No claim may be
brought under this Agreement unless written notice describing in reasonable
detail the nature of the claim is given on or prior to the last day of the
twelve (12) month period following the Closing Date.
(a) For a period of one (1) year from the date of this Agreement, Seller shall indemnify, defend, and hold Buyer, its affiliates, partners, employees, officers, directors, agents, and representatives harmless from and against any and all reasonable losses, costs, expenses, liabilities, penalties, claims, and other damages including, but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or warranties, or the breach of any other provision contained in this Agreement;
(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 the Tower Site prior to the Closing Date, including any and all liabilities arising under the Assets which relate to events occurring prior to the Closing Date.
(b) For a period of one (1) year from the date of this Agreement, Buyer shall indemnify, defend and hold Seller, its affiliates, employees, officers, directors, agents and representatives harmless from and against any and all losses, costs, expenses, liabilities, penalties, claims, and other damages, including but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigations, reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties, or the breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or agreements contained herein or in any Buyer's Closing Document;
(iii) the Assumed Liabilities;
(iv) any and all losses, liabilities or damages resulting from Buyer's operations or ownership of the Tower Site subsequent to the Closing Date, including any and all liabilities arising under the Assets which related to events occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified Party") becomes aware of circumstances which would entitle such party to indemnification by the other party hereunder (the "Indemnifying Party"), the Indemnified Party shall give the Indemnifying Party prompt written notice, with reasonable detail, of such claim. Upon receipt of such notice by the Indemnified Party to the Indemnifying Party, the Indemnifying Party shall have the option of defending against such pending litigation through engagement of legal counsel of its choice, provided, however, that the Indemnifying Party's choice of legal counsel must be acceptable to the Indemnified Party in its reasonable discretion. In the event the Indemnifying Party elects to defend, the Indemnifying Party shall keep the Indemnified Party fully informed on a timely basis of the status of the pending litigation. In the event that the Indemnifying Party elects to defend and is unsuccessful in such defense, it shall promptly pay to the Indemnified Party any and all losses, costs, expenses, liabilities, penalties, claims and other damages as described above,
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.
(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.
(iii) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to Thirty Thousand Dollars
($30,000.00) and Seller shall have no other liability
or responsibility for indemnification hereunder.
(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 Thirty Thousand Dollars
($30,000.00) and Buyer shall have no other liability or
responsibility for Indemnification hereunder.
(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.
(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).
If Seller fails to perform under this Agreement, the Buyer may exercise any right he has against the Seller, including bringing an action for specific performance. The remedies provided by this Section are in addition to any right or remedies provided elsewhere in this Agreement or at law or in equity. In the event a dispute arises between the Parties over the interpretation of this Agreement, or the performance, alleged non-performance or breach by either Party hereunder, the Parties hereby agree to seek resolution of such dispute in good faith through an alternative dispute resolution process mutually agreeable to the Parties prior to the institution of any legal proceedings related thereto.
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.
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.
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.
This Agreement may not be changed, modified or amended, in whole or in part, except in writing, signed by all parties.
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: WJST License Limited Partnership
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
Fax: (941) 434-8950
If to the Buyer: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
|
Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
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.
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.
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.
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.
This Agreement is made and shall be governed by and construed in accordance with the internal laws of the State of Florida.
The headings and captions in this Agreement are for convenience only and are not part of this Agreement.
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.
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.
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.
Seller shall make all reasonable efforts to resolve any title or restriction issues prior to the Closing, but will continue these efforts subsequent to the Closing to the extent reasonably necessary.
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:
WJST LICENSE LIMITED PARTNERSHIP
By: _________________, its General Partner
By: ________________________________
Name: [George G. Beasley]
Title: [Chief Executive Officer]
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: ___________________________________
Name: B. Caroline Beasley
Title: Secretary
Exhibit A Description of Land and Tower
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Bill of Sale and
Assumption Agreement
Exhibit E Form of Lease Agreement
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DESCRIPTION OF LAND AND TOWER
WWCN-AM
That certain communications tower used in the operation of WWCN-AM situated on that certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
FORM OF PURCHASE NOTE
$255,187.00 December ___, 2000
BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value received, promises to pay to the order of Beasley Broadcasting of Eastern Pennsylvania, a Delaware Corporation, ("Payee"), the principal amount of TWO HUNDRED FIFTY FIVE THOUSAND ONE HUNDRED EIGHT SEVEN DOLLARS ($255,187.00), 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 December ____, 2000, by and among Payor and Payee.
(i) Payor may, at its option at any time, without premium or penalty, prepay all or any portion of this Note.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this Note when the same shall become due and payable (whether at maturity or otherwise) and the continuation of such failure for a period of ninety (90) days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or any substantial portion of its property or assets;
(iv) makes a general assignment for the benefit of its creditors; or
(c) an involuntary case or proceeding is commenced against Payor under any Bankruptcy Law and is not dismissed, bonded or discharged within ninety (90) days thereafter, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case or proceeding;
(ii) appoints a Custodian of Payor or for all or substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case the order or decree remains unstayed and in effect for ninety (90) days.
(d) The following terms used in this Note have the meanings assigned below:
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.
return receipt requested or (iii) delivered by Federal Express or a similar overnight courier or (iv) sent via facsimile transmission to the fax number given below, as follows:
If to Payor, addressed to:
Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Fax: (941) 434-8950
With a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Attn: Joseph D. Sullivan, Esq.
Fax: (202) 637-2201
If to Payee, addressed to:
WJST License Limited Partnership
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Fax: (941) 434-8950
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.
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of the date hereinabove first written.
BEASLEY FAMILY TOWERS, INC.
By: ________________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF DEED
FORM OF ASSIGNMENT, BILL OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Bill of Sale and Assumption Agreement (this "Agreement") is made effective as of 12:01 a.m. Eastern Time, on the ____ day of December, 2000 by and between WJST LICENSE LIMITED PARTNERSHIP ("Seller") and BEASLEY FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset Purchase Agreement") dated as of December ___, 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 Purchaser shall assume the Assumed Liabilities, as defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows (capitalized terms used herein but not defined herein shall have the meaning given to them in the Asset Purchase Agreement):
1. Seller hereby bargains, sells, conveys, assigns and delivers all of Seller's right, title and interest in and to the Tower described in Exhibit A of the Asset Purchase Agreement.
2. Purchaser hereby accepts the sale, conveyance and assignment of the Tower, effective as of 12:01 a.m. Eastern Time on December __, 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 December __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request of the other party, promptly obtain, execute and deliver, or cause to be obtained, executed and delivered, to the other party such assignments, bills of sale, endorsements, and other such instruments or documents to be executed by Seller or Purchaser, as the case may be, in addition to this
Agreement, in form and substance reasonably satisfactory to the other party, as such other party may reasonably deem necessary or desirable so as (i) to vest in Purchaser title to and possession of the Tower and (ii) to perfect and record, if necessary, the sale, assignment, conveyance, transfer and delivery to Purchaser of the Tower.
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.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this Agreement as of the day and year first written above.
SELLER:
WJST LICENSE LIMITED PARTNERSHIP
By: _______________, its General Partner
By: _________________________________
Name: [George G. Beasley]
Title: [Chief Executive Officer]
PURCHASER:
BEASLEY FAMILY TOWERS, INC.
By: _____________________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000 by and between BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and WJST LICENSE LIMITED PARTNERSHIP, a Delaware limited partnership ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns one (1) communications tower described on Exhibit A attached hereto (the "Tower"), together with other improvements on a certain tract of real estate located in North Fort Myers, Florida and described in Exhibit B attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower Site" shall also include any appurtenant easements or improvements on such land, including, without limitation, any buildings or other structures);
WHEREAS, Lessor desires to lease the Tower Site and the Tower for the purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Tower from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants herein contained, the parties hereto agree as follows:
Commencement of Term. The term of this Lease and the payment of rent and other performances in accordance with the terms of this Lease shall commence on the date hereof.
Exhibits. All Exhibits referred to in this Lease are incorporated herein by reference.
Leased Premises. Lessor hereby leases to Lessee, and Lessee leases from Lessor, with a right of access thereto and parking therefor in accordance with Section 9:
The Tower for the purpose of the broadcast transmission of WWCN-AM, North Fort Myers, Florida;
[Space in the transmitter building on the Tower Site, as such space is more fully described in Exhibit C hereto (the "Transmitter Building"), for the purposes of the housing, operation and maintenance of Lessee's transmitter and
related equipment by Lessee in the [Transmitter Building] for the aforementioned purposes immediately prior to the effective date of this Lease (such space "Lessee's Building Space"); and]
The Tower Site.
All of the property leased under this Paragraph 2.01 shall
hereinafter be called the "Leased Premises".
Ownership of Property; Access.
Except for "Lessee's Property" (as defined below), all
tenant improvements including all fixtures and trade
fixtures shall become the property of the Lessor, and
shall remain with the Leased Premises after the Lessee
vacates same.
The Lessee's antenna, transmission line, and other
equipment, together with any replacements thereof and
modifications and additions thereto, which are
permitted hereunder, shall be and remain Lessee's
Property, and are hereinafter referred to as "Lessee's
Property". Lessee will be solely responsible for the
maintenance of Lessee's Property, including all
expenses associated with such repair.
Lessee shall have reasonable right of access to the Leased
Premises at all times in emergency situations and
whenever reasonably necessary for equipment maintenance
and repair. Lessee shall also have reasonable rights of
access at any time to the Leased Premises for ingress,
egress, utilities, the locating and usage of cabling
and related equipment, operations, maintenance, repair
or remodeling, or other engineering purposes.
By Lessee.
Subject to all appropriate government approvals, including
the Federal Communications Commission ("FCC"), the
Leased Premises may be used only for activities related
to the operation of radio broadcast stations. Such
operations, shall be conducted in accordance with the
standards imposed by the FCC and any other governmental
body with authority over such transmission and
operations.
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 reasonably deems necessary to its operations within Lessee's Building Space in all respects in compliance with the terms hereof. Lessee shall maintain the Leased Premises, Lessee's interior and exterior equipment, and all other improvements in an orderly and professional manner.
By Lessor.
Subject to the rights elsewhere granted to Lessee in this
Lease and with prior notice to Lessee and no loss of
service or interruption (beyond a temporary, non-
recurring and de minimis amount), Lessor reserves the
right to use the 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.
Subject to the rights elsewhere granted to Lessee in this Lease, Lessor shall have the right to use for itself or lease to others the remainder of the Tower Site or use of any of the improvements thereon, space in any building constructed by Lessor for any purpose, including, but not limited to, any kind of broadcasting or communication, simultaneous transmissions on AM, FM, SSB, VBIF, UHF, and/or microwave frequencies, and all rental revenues received therefrom shall belong exclusively to Lessor. Prior to permitting the fastening of a material amount of additional equipment, Lessor shall cause a structural analysis of the Towers to be conducted by a reputable mechanical consultant chosen by Lessor in order to ensure that any such additions conform to recognized engineering standards.
Except as expressly provided for herein, Lessor shall have no liability for any action or omission taken in exercise of its rights hereunder upon reasonable reliance on recommendation of its engineering personnel.
Subject to the terms of this Lease, Lessor also reserves the right to erect one (1) or more additional towers on the Tower Site.
Term. This Lease shall have a term of twenty (20) years from the Commencement Date established in Paragraph 1.01 hereof.
Rental. Lessee shall pay rent for each consecutive twelve-month period beginning on the Commencement Date (each a "Lease Year") during the term of this Lease. Such rental payment shall be payable in equal and successive monthly installments in advance beginning with the Commencement Date and continuing thereafter on the first day of each month during the term of this Lease, such rental payments to be made to the following schedule:
------------------------------------------------------------------
Lease Year Rent Per Lease Year Monthly Rent
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1 $23,320.80 $1,943.40
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2 $23,320.80 $1,943.40
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3 $23,320.80 $1,943.40
------------------------------------------------------------------
4 $23,320.80 $1,943.40
------------------------------------------------------------------
5 $23,320.80 $1,943.40
------------------------------------------------------------------
6 $23,320.80 $1,943.40
------------------------------------------------------------------
7 $23,320.80 $1,943.40
------------------------------------------------------------------
8 $23,320.80 $1,943.40
------------------------------------------------------------------
9 $23,320.80 $1,943.40
------------------------------------------------------------------
10 $23,320.80 $1,943.40
------------------------------------------------------------------
11 $23,320.80 $1,943.40
------------------------------------------------------------------
12 $23,320.80 $1,943.40
------------------------------------------------------------------
13 $23,320.80 $1,943.40
------------------------------------------------------------------
14 $23,320.80 $1,943.40
------------------------------------------------------------------
15 $23,320.80 $1,943.40
------------------------------------------------------------------
16 $23,320.80 $1,943.40
------------------------------------------------------------------
17 $23,320.80 $1,943.40
------------------------------------------------------------------
18 $23,320.80 $1,943.40
------------------------------------------------------------------
19 $23,320.80 $1,943.40
------------------------------------------------------------------
20 $23,320.80 $1,943.40
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|
Payment of Rentals. Rentals to be paid hereunder shall be paid monthly in lawful money of the United States of America and shall be paid in advance on the first day of each month during the term of this Lease by crediting the payment owed to Lessee by Lessor under that certain Promissory Note made by Lessor in favor of Lessee dated _______, 2000, on the first day of each month during the term of this Lease. In the event of prepayment of the Promissory Note by Lessor or other action resulting in amounts equal to any monthly rental payment not being concurrently due from Lessor under the Promissory Note, then Lessee shall pay the monthly rental amount in advance on the first day of the month in question by mailing payment to the Lessor c/o Beasley Family Towers, Inc., 3303 Riviera Drive, Suite 200, Naples, FL 34103, Attn: Ms. B. Caroline Beasley, or to such other person or address as Lessor may in writing direct. The payment of the monthly rental for the first month of the term of this Lease shall be prorated based on the number of days remaining in such month, including the first day on which this Lease become effective.
Electricity and Other Utilities. In addition to the payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its own telephone lines and service, electrical service (including electrical service to the 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.
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 Leased Premises, and all other rights and privileges granted herein, without hindrance, eviction, or molestation by Lessor or any party claiming by or through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the full power and authority to enter into and perform this Lease. Any and all necessary corporate resolutions, encumbrance certificates, etc., shall be supplied by Lessee upon the request of Lessor.
Permits. Lessor shall obtain all necessary licenses or permits in connection with the Tower [and Transmitter Building] except that Lessee shall obtain, at its own expense, any and all necessary licenses or permits from such governmental authorities as shall have jurisdiction in connection with the (b) the operations, installation, repair, alteration, or replacement of Lessee's equipment (including, without limitation, Lessee's antenna and transmission and/or receiving equipment); 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.
During Term of Lease.
Lessee, at its own cost and expense, shall maintain and
repair Lessee's Property, including specifically its
antenna, related equipment, transmission lines,
transmitters, and other equipment. Lessor shall perform
the same tasks with respect to the Towers [and
Transmitter Building]. All such maintenance shall be
conducted by the parties in accordance with good
engineering standards and in conformity with the
requirements of the FCC or any other body having
jurisdiction over the Lessee and its property,
including, without limitation, any rules, regulations,
or guidelines of the FCC implementing the National
Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of
Lessor and Lessee shall take all reasonable precautions
to avoid interference or hindrance to and with the
operations of the other party hereto. In this regard,
each party hereto agrees to eliminate, without cost to
the other party hereto,
any interference or hindrance to such other party's
operation. Maintenance and repair of Lessee's Property
shall be performed only by a reputable contractor and
in accordance with the provisions of subsections (d),
(e), and (f) hereof.
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, [the Transmitter Building,] and the Tower Site, or the prevention of interference with Lessor or any other user of the Towers or any other broadcaster, Lessor may, at its option, make such emergency repairs to the Leased Premises as it deems reasonably necessary, and any amount expended by Lessor therefor shall be reimbursed to it by Lessee immediately upon presentation of a statement and shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing any of Lessee's Property which Lessee has failed to properly maintain.
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, [the Transmitter Building] and the Tower Site, or the prevention of interference with Lessor, in violation of the terms of this Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance and repairs required to be performed by Lessee. In the event that, within ten (10) business days following such written notice (or such longer period as may be reasonably necessary taking into account all facts and circumstances), Lessee shall not have performed such maintenance and repairs, Lessor may, at its sole option, make such repairs as it deems reasonably necessary, and any amount expended by Lessor therefor shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing the property and
equipment of Lessee which Lessee has failed to properly maintain.
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.
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), [in the Transmitter Building,] or in or about the Tower Site, Lessee may only employ a contractor who has been approved in writing and in advance by Lessor. Lessor agrees that it will not unreasonably withhold its approval of any contractor who has the requisite experience and industry standard insurance coverage and who will, at the sole option of Lessor, provide a bond to cover any work which it has been retained to perform. Lessor agrees to consult on call in any emergency situation and immediately give its approval or disapproval.
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.
Notwithstanding the receipt of the approvals by Lessor as required in this paragraph, Lessee shall not be relieved of its responsibilities and liabilities for interference or otherwise as herein provided, nor shall said approval be deemed a waiver of any other rights of Lessor under this Lease.
In the event that any notice of lien or lien shall be filed against any part of the Tower 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.
At Expiration or Termination. At the expiration or termination of this Lease, Lessee shall promptly surrender possession of the Leased Premises to Lessor in as good a condition as the same were received at the commencement of the term, reasonable wear and tear and damage by fire or other casualty beyond Lessee's reasonable control excepted.
Use of Common Premises. Lessee, at its own risk, shall have the
right to use in common with Lessor and its licensees, invitees, and other
tenants, and in connection with Lessee's permissible activities and operations
(a) any access road from any public highway to the Tower Site or to any building
on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common
areas in the building (such items (a), (b) and (c) called collectively herein
the "Common Premises").
Maintenance of Common Premises.
Lessor shall maintain the Common Premises and any fence
around the Tower in good repair. Lessee shall comply
with any security policies reasonably established from
time to time by Lessor.
Lessor assumes the obligation and responsibility for
complying with the requirements of the FCC regarding
obstruction, marking and lighting of the 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.
In the event that Lessor determines that repairs,
alterations, or improvements are necessary or desirable
to the Tower or any building or structure constructed
by Lessor on the Tower Site, any common areas, or the
leased spaces of other tenants, Lessor may, upon
reasonable notice and for the shortest practical period
of time (except for emergency situations), close
entrance doors, common areas, drive-ways, rights-of-
way, service areas, parking areas, or any other
facilities at its discretion without being liable to
Lessee; provided that if any of the above would
restrict Lessee's ability to broadcast, Lessor shall
use reasonable efforts to restrict any closure or
interruption pursuant to this Section 9.02 to the hours
of 1:00 a.m. to 5:00 a.m.. The closing of entrances,
doors, common areas, parking areas, or other facilities
for the making of the repairs, alterations, or
improvements described herein shall, under no
circumstances, constitute an eviction of the Lessee or
be grounds for termination of this Lease or the
withholding of any rental payments or other payments or
performances required to be paid or made by Lessee
under the terms hereof, provided, Lessor shall use
reasonable efforts to ensure that any action taken in
accordance with this paragraph shall not adversely
affect the rights of Lessee hereunder. Under no such
circumstances shall Lessee be entitled to terminate
this Lease nor shall it be entitled to compensation for
any loss or damage it may sustain (including loss of
use, loss of advertising/sponsorship revenues, and
consequential damages) by reason of such changes or
alterations.
Alterations.
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.
This Lease is based upon carefully computed tower loading
capacity. If any change proposed by Lessee in the type,
location, or positioning of Lessee's Property should,
in Lessor's judgment, require a computer or other type
of feasibility study to determine the loading capacity
of the Tower, 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.
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises or on the Tower after the date hereof, notification of the particulars of such proposed installation shall be submitted to Lessor hereto and any other lessees or users of Tower space whose names and addresses are supplied to Lessee by Lessor in writing, and the Lessor and such other users will be requested to advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days after receipt of such notification, whether they have any reasonable objections thereto on the grounds that objectionable interference may result; provided, this Section 11.01 shall not apply to any currently installed Lessee's Property or its replacement, maintenance or repair. If the Lessor or
any other user shall reasonably object within this period to such plans and Lessee is unwilling to alter its plans to meet the objections, the dispute shall be submitted to an independent professional engineer chosen by Lessor, and such engineers decision shall be final and binding upon all parties. The cost of any such studies shall be borne by Lessee.
Interference with Lessor, Lessee, or Others. Notwithstanding the provisions of Paragraph 11.01, should any change, after the date hereof, in the facilities or mode of operation of Lessee or Lessee's failure to comply with the Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable electrical or physical interference (including interference from any other structure erected on the Tower Site) to the television and/or radio broadcasting and/or receiving operations of any other lessee, then, promptly after written notification of such interference, the Lessee, at its sole expense, will take such steps as may be reasonably required to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filters or other equipment, provided that, if such interference is caused, after the date hereof, by the failure of the Lessor or any other lessee suffering the interference to comply with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor shall, or shall cause the other lessee suffering the interference, at its sole expense, to comply with such Maintenance Standards. Any dispute as to the cause of interference, or the steps reasonably required to correct it, arising under this Paragraph 11.02, shall be submitted to an independent professional engineer chosen by Lessor, and such engineer's decision shall be final and binding upon the parties. If such interference is found to be caused by such changed facilities or operation, the fees and charges of the engineer to whom the dispute is referred shall be borne by the party whose changed facilities or mode of operations gave rise to the claimed interference. If such interference is found not to be caused by such changed facilities or operations, the fees and charges of the engineer to whom the dispute is referred shall be borne by the objecting party. All other leases and/or agreements to lease space at the Tower Site shall contain this language.
Interference by Other User. Any subsequent agreement under which Lessor allows any other person to occupy any portion of the Tower, Tower Site or any building 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, Tower Site [or the Transmitter Building] shall not cause any objectionable interference with the operations of Lessee. Immediately upon notification of such interference by
Lessee, Lessor shall at its sole expense take such steps as may be reasonably necessary to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filter or other equipment.
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.
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.
Payment of Taxes. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement] Lessee shall pay all personal property or other taxes assessed or
imposed on Lessee's Property, and shall cooperate with Lessor to ensure that
such property is properly separated from that of Lessor or other tenants for
assessment purposes.
Public Liability. Lessee shall procure and maintain comprehensive public liability insurance, naming Lessor as an additional insured as its interests shall appear, covering all of the Lessee's operations and activities on the Leased Premises, including but not limited to, the operations of contractors and subcontractors and the operation of vehicles and equipment (including any elevators in the Tower), 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].
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.
Insurance on the Tower [and Transmitter Building]. Lessee shall
procure and maintain physical damage insurance on the Tower and any building on
the Tower Site used or leased by Lessee pursuant to this Lease in an amount
sufficient to repair or replace the Tower and any such building with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse,
explosion, aircraft and vehicle damage, vandalism, and malicious mischief.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall be solely responsible for its insurance on Lessee's
Property, together with business interruption insurance.
Towers and/or Transmitter Building Damage. In the event that the Tower [or the Transmitter Building] [are/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 [and/or the Transmitter Building] to such good condition as existed before the destruction or damage, and give possession to Lessee of substantially the same space leased hereunder. Lessee shall promptly pay over to Lessor any insurance proceeds it receives from insurance policies Lessee is required to procure under Section 14.03 hereof for the purpose of use by Lessor to fund reconstruction of the Tower [and/or Transmitter Building] as required of Lessor under this Section 14.04. If the Tower [or the Transmitter Building are/is] in need of such repair or is so damaged by fire, lightning, windstorm, flood, earthquake, explosion, aircraft or other vehicle damage, collapse, or other casualty that reconstruction or repair cannot reasonably be undertaken without dismantling Lessee's antenna, then upon written notice to Lessee, Lessor may remove any such antenna and interrupt the signal activity of Lessee, but will use its best efforts to have the antenna replaced as soon as reasonably possible. Lessor agrees to provide Lessee an alternative tower [or transmitter building] if available, during such reconstruction/repair period. If such towers [or space in another transmitter building] on the Tower Site is not available, then Lessee shall be responsible for procuring its own alternative towers. No monetary or other rental shall be due pursuant to the terms of this Lease for such time as Lessee is unable to conduct its broadcasting activities on the 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 [and/or Transmitter Building] or (b) replace the Tower [and/or Transmitter Building] within one (1) year if Lessor has provided the notice described in clause (a) above, of the date of destruction, or repair the same within such shorter time period after the casualty as may be reasonable, then Lessee, upon thirty (30) days' written notice to Lessor, may terminate this Lease, provided if Lessor has provided the notice described in clause (a) above, Lessee must make such election within one hundred twenty (120) days prior to the expiration of said repair or replacement period. Lessee agrees that it shall maintain adequate business interruption insurance at all times during the term of this Lease to adequately protect it from any interruption of signal activities due to damage to the Tower (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.
In the event that the Tower Site (or any portion of the Tower Site necessary for the Tower, [Transmitter Building], guy wires, or other appurtenances necessary to Lessee's broadcasting operations) is acquired or transferred or condemned pursuant to eminent domain proceedings (or the threat thereof), the obligation of the parties under this Lease shall be terminated as of the date of acquisition or transfer. Lessor shall be entitled to the entire condemnation award. If Lessor determines to build a new tower as a replacement for the Tower [and/or the Transmitter Building] on the condemned property, Lessor agrees to lease to Lessee the new tower [and/or transmitter building] on terms reasonably equivalent to the terms of this Lease.
In the event that this Lease is terminated due to eminent domain proceedings, then Lessee shall be relieved of any further obligations to make any rental payments or performances for any period after the date of such termination of this Lease; and subject to offset or withholding by Lessor to cover any unpaid additional rent or other authorized charges which may be owed through the date of termination, Lessee shall be entitled to a refund of any advance rental sums which it has paid in proportion to the period of the Lease through such date of termination.
Successors. All rights and liabilities herein given to or imposed upon the respective parties hereto shall, to the extent that such are assignable, extend to and bind the several and respective successors and assigns of the parties hereto.
Assignment. Lessee shall not assign, sublet, or transfer this Lease or any interest therein, or permit or allow through any act or default of itself, or of any other person, any transfer thereof by operations of law or otherwise without the prior written consent of Lessor except:
Lessee may assign this Lease to any bona fide third party purchaser of substantially all the assets comprising of Lessee's radio station broadcasting from the Tower Site, who shall execute an assignment and assumption agreement in form reasonably acceptable to Lessor; and
Lessee may assign or transfer all or a portion of the assets of Lessee, including this Lease, to any corporation controlling, controlled by, or under common control with, Lessee.
Any assignment or subletting by Lessee except as permitted herein shall be void and of no effect. Any permitted assignment shall not relieve Lessee of any of its liabilities hereunder. A change in control of Lessee, but not the mortgaging by Lessee of its rights hereunder, shall constitute an assignment of this Lease. Lessor agrees to enter into documentation reasonably requested by any lender to Lessee in connection with Lessee's mortgaging of its rights hereunder.
Lessor may assign or transfer this Lease without the consent of Lessee, but shall notify Lessee following any transfer or assignment.
Default by Lessee.
If Lessee shall make default in making any payment herein provided for and any such default shall continue for a period of ten (10) business days after written notice to Lessee, or if Lessee shall make default in the performance of any obligation of Lessee herein (other than as to payment of money) and any such default shall continue for a period of thirty (30) days after written notice to Lessee, or if Lessee shall file a voluntary petition in bankruptcy, or if Lessee shall file any petition or institute any proceedings under any Insolvency or Bankruptcy Act or any amendment thereto hereafter made, seeking to effect its reorganization or a composition with its creditors, or if, in any proceedings based on the insolvency of Lessee or relating to bankruptcy proceedings, a receiver or trustee shall be appointed for Lessee or the Leased Premises, or if any proceedings shall be commenced for the reorganization of Lessee (which, in the case of involuntary proceedings, are not dismissed or stayed within 30 days of the commencement thereof), or if the leasehold estate created hereby shall be taken on execution or by any process of law, or if Lessee shall admit in writing its inability to pay its obligations generally as they become due, then Lessor may, at its option, terminate this Lease without notice, and declare all amounts due or to become due hereunder immediately due and payable, and Lessor's agents and servants may immediately, or any time thereafter, reenter the Leased Premises by reasonably necessary force, summary proceedings, or otherwise, and remove all persons and properly therein, without being liable to indictment, prosecution, or damage therefor, and Lessee hereby expressly waives the service of any notice in writing of intention to reenter said Leased Premises. Lessor may, in addition to any other remedy provided by law or permitted herein, at its option, relet the Leased Premises (or any part thereof) on behalf of Lessee, applying any monies collected first to the payment of expenses of resuming or obtaining possession, and, second, to the payment of the costs of placing the premises in rentable condition, including any leasing commission, and, third, to the payment of rent due hereunder, and any other damages due to the Lessor. Any surplus remaining thereafter shall be paid to Lessee, and Lessee shall remain liable for any deficiency in rental, the amount of which deficiency shall be paid upon demand therefor to Lessor.
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.
Each party warrants and represents that it has the authority to enter into this Lease and to grant the rights it grants hereunder, and that performance of its obligations pursuant to this Lease will not violate the rights of any third party whatsoever. Lessee agrees to indemnify and defend Lessor against any claim for damages, losses, liabilities, costs, or expenses, including reasonable attorney's fees, arising (a) out of any breach by Lessee of its warranties, representations, or covenants under this Lease; (b) out of the use, management, or occupancy of the Leased Premises by Lessee, its agents, or invitees; (c) out of any omissions, negligence or willful misconduct of Lessee, its agents, servants, employees, licensees, or invitees; (d) out of failure of Lessee to comply with any laws, statutes, ordinances, or regulations; (e) out of Lessee's failure to maintain equipment in proper working order; and (f) out of Lessee's failure to comply with any of its other obligations under the terms of this Lease.
(b) Lessor agrees to indemnify and defend Lessee against any claim for damages, losses, liabilities, costs, or expenses, including reasonable attorney's fees, arising (a) out of any breach by Lessor of its warranties, representations, or covenants under this Lease; (b) out of the use, management, or occupancy of the Leased Premises by Lessor, its agents, or invitees; (c) out of any omissions, negligence or willful misconduct of Lessor, its agents, servants, employees, licensees, or invitees; (d) out of failure of Lessor to comply with any laws, statutes, ordinances, or regulations; (e) out of Lessor's failure to maintain equipment in proper working order; and (f) out of Lessor's failure to comply with any of its other obligations under the terms of this Lease.
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.
Estoppel Certificate. Within ten (10) days after either party's
request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
Attornment. Lessee shall, in the event of a sale or assignment of Lessor's interest in any of the Leased Premises, or, if any of the Leased Premises or any building thereon comes into the hands of any Trustee under a Deed of Trust or a mortgagee or any other person, whether because of a foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person, and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's request any attornment agreement reasonably required by any mortgagee, Trustee, or other such person to be executed containing such provisions as such mortgagee, Trustee, or other person reasonably requires, provided, however, that such attornment shall not modify the terms of this Lease.
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.
Relationship of Parties. Nothing contained herein and no acts of the parties herein shall be deemed or construed as creating any relationship between the parties hereto other than the relationship of Lessor and Lessee or Landlord and Tenant.
Governing Law. This Lease shall be governed and construed and enforced in accordance with the laws of the State of Florida.
Captions. The captions contained in this Lease are included solely for convenience and shall in no event affect or be used in connection with the interpretation of this Lease.
Amendments. This Lease only may be amended or modified as may be agreed upon by written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or payable under this Lease, including all money expended pursuant to the provisions hereof or on account of any default in the performance and observance of any agreements or covenants herein, shall bear interest at the rate of eight and one-half percent (8.5%) per annum (or at such lesser rate which is the maximum permitted by applicable law) from thirty (30) days after the date such sums become due or payable, or, in the event one of the parties expends money because of a default by the other, from thirty (30) days after the date the defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable attorney's fees to collect any payment or to compel any performance ultimately held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not had dealings with any real estate broker or other person who may claim a commission or finder's fee with respect to this Lease in any manner. Each party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the Indemnified Party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
Notices. Notices given pursuant to this Lease shall be in writing and shall be given by actual delivery or by mailing the same to the party entitled thereto at the addresses set forth below or at any such other address as any Party may designate in writing to any other Party pursuant to the provisions of this paragraph. Notice given by mail shall be sent by United States mail, certified or registered, return receipt requested or by nationally recognized courier serviced providing receipt of delivery. Notices shall be deemed to be received on the date of actual receipt, in the case of personal delivery, or on the date of mailing, in the case of mailing. Notices shall be served or mailed to the following addresses, subject to change as provided above:
If to the Lessor: WJST License Limited Partnership
3033 Riviera Drive, Suite 200 Naples, FL 34103 Attn: Ms. B. Caroline Beasley Secretary Phone: (941) 263-5000 |
Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
If to the Lessee: Beasley Broadcasting of Eastern Pennsylvania, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
|
Fax: (941) 434-8950
Waiver. It is agreed that the waiving of any of the covenants of this Lease by either party shall be limited to the particular instance, and shall not be deemed to waive any other breaches of such covenant or any provision herein contained.
Accord and Satisfaction. No receipt of money by Lessor after the termination of this Lease or after the service of any notice or after the commencement of any suit reinstates, continues, or extends the term of this Lease or affects any such notice or suit.
Limitation of Liability. Except as otherwise expressly stated herein, Lessor shall not be liable or responsible to the Lessee or to anyone claiming under or through the Lessee for any loss or damage caused by the acts or omissions of any other tenants or any other users of the Tower, [Transmitter Building], or Tower Site, or for any loss or damage to Lessee's Property caused by fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials falling from the Tower, or the malfunction of any utility, facility, or installation, or by reason of any other existing condition or defect in the Leased Premises; nor shall Lessor be liable or responsible to the Lessee for any injury or damage suffered by the Lessee and allegedly caused by technical interference with the Lessee's operations, by the activities of any other tenants or users of the Towers, [Transmitter Building], and Tower Site, or any other broadcasters. Except for Lessor's own negligent acts, willful misconduct or for breaches of its obligations under this Agreement, Lessor shall not be liable to Lessee, or to any other person for property damage or personal injury, including death. Lessor shall not be liable under any circumstances for loss of
use, loss of sponsorship or advertising revenue, or any other consequential damages sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or phrase contained in this Lease shall not serve to render the balance of this Lease ineffective or void; and the same shall be construed as if such had not been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary stamps occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such rules and regulations in writing which it may consider necessary and desirable. Lessee agrees to abide by such rules and regulations so long as they do not unreasonably interfere with Lessee's use and occupancy of the Leased Premises or conflict with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or damages to Lessee's Property caused by acts of God, including, but not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for losses or damages to Lessee's Property caused by any person other than employees and agents of Lessor. In the event that Lessor shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of acts of God (including, but not limited to, wind, lightning, rain, ice, earthquake, flood, or rising water), aircraft or vehicle damage or other casualty, unforeseen soil conditions, acts of third parties who are not employees of Lessor, strikes, lock-outs, labor troubles, inability to procure material, failure of power, governmental actions, laws or regulations, riots, insurrection, war, or other reasons beyond its control, then the performance of such act shall be excused for the period of delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay.
Entire Agreement. This Lease, together with its Exhibits, constitutes and sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous offers, negotiations, and agreements (whether oral or written) between the parties (or any of their related entities) concerning the subject matter of this Lease.
Counterparts and Duplicates. This Lease may be executed in counterparts, which, when combined, shall constitute a single instrument. The Lease may also be executed in duplicate editions, each of which shall be effective as an original.
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
BEASLEY FAMILY TOWERS, INC.
______________________________ By: ______________________________(SEAL)
Witness Name: B. Caroline Beasley
Title: Secretary
LESSEE:
WJST LICENSE LIMITED PARTNERSHIP
|
By: _______________, its General Partner
______________________ By: _________________________(SEAL)
Witness Name: [George G. Beasley]
Title: [Chief Executive Officer]
|
DESCRIPTION OF TOWER
WWCN-AM
That one (1) certain communications tower used in the operation of WWCN-AM situated on that certain tract of land more particularly described on Exhibit B herein.
DESCRIPTION OF TOWER SITE
WWCN-AM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
[TRANSMITTER BUILDING DIAGRAM OR DESCRIPTION]
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of December __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between Beasley Radio, Inc., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller a communications tower facility used in the operation of radio broadcast station WWCN-AM (the "Tower"), and certain personal property belonging to Seller and associated with the Tower;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The text of Exhibit A of the Lease is hereby amended and restated as follows:
That certain communications tower used in the operation of WWCN-AM situated on that certain tract of land more particularly described as follows:
Land situate, lying and being in Charlotte County, Florida, viz:
The Northwest 1/4 of southeast 1/4 of Section 31, Township 42 South Range 25 East, said lands lying and being in Charlotte County, Florida.
2. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
3. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
4. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF FLORIDA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY RADIO, INC.
BY: ___________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
BY: ____________________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of December __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Radio, Inc., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor a communications tower facility used in the operation of radio broadcast station WWCN-AM (the "Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interests obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
5. Section 2.01(b) of the Lease is hereby deleted.
6. The second sentence of Section 3.01(b) of the Lease is hereby deleted.
7. Section 7.01 of the Lease is amended and restated as follows:
8. Section 8.01 of the Lease is amended and restated as follows:
(a) Lessee, at its own cost and expense, shall maintain and repair Lessee's Property, including specifically its antenna, related equipment, transmission lines, transmitters, and other equipment. Lessor shall perform the same tasks with respect to the Towers. All such maintenance shall be conducted by the parties in accordance with good engineering standards and in conformity with the requirements of the FCC or any other body having jurisdiction over the Lessee and its property, including, without limitation, any rules, regulations, or guidelines of the FCC implementing the National Environmental Policy Act of 1969 pertaining to electromagnetic or radio frequency radiation. Each of Lessor and Lessee shall take all reasonable precautions to
avoid interference or hindrance to and with the operations of the other party
hereto. In this regard, each party hereto agrees to eliminate, without cost to
the other party hereto, any interference or hindrance to such other party's
operation. Maintenance and repair of Lessee's Property shall be performed only
by a reputable contractor and in accordance with the provisions of subsections
(d), (e), and (f) hereof.
(b) Lessor retains the right to inspect Lessee's Property during normal business hours upon reasonable notice to Lessee, except that, in the event of an emergency, as determined by Lessor, Lessor may enter at any time, giving notice of such emergency to Lessee as soon as is practical. In the event that Lessor reasonably determines that Lessee has not maintained Lessee's Property and equipment in good order and repair according to industry standards, and that such repairs are necessary for the safety of the Tower, and the Tower Site, or the prevention of interference with Lessor or any other user of the Towers or any other broadcaster, Lessor may, at its option, make such emergency repairs to the Leased Premises as it deems reasonably necessary, and any amount expended by Lessor therefor shall be reimbursed to it by Lessee immediately upon presentation of a statement and shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing any of Lessee's Property which Lessee has failed to properly maintain.
(c) With respect to the non-emergency repairs which Lessor, in its reasonable discretion, determines that Lessee should make to maintain Lessee's Property and equipment in good order, and that such repairs are necessary for the safety of the Tower, and the Tower Site, or the prevention of interference with Lessor, in violation of the terms of this Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance and repairs required to be performed by Lessee. In the event that, within ten (10) business days following such written notice (or such longer period as may be reasonably necessary taking into account all facts and circumstances), Lessee shall not have performed such maintenance and repairs, Lessor may, at its sole option, make such repairs as it deems reasonably necessary, and any amount expended by Lessor therefor shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing the property and equipment of Lessee which Lessee has failed to properly maintain.
(d) No work (including electrical work), except for emergency repairs that Lessee shall perform to return to, or maintain the station on air in the event of a failure, will be performed by the Lessee in connection with the installation, alteration, maintenance, repair, or removal of any of Lessee's transmission lines, antenna, and other equipment on the Tower unless the Lessee submits to Lessor a copy of the proposed contract and also detailed plans and specifications of the work to be done, and both the contract and the plans and specifications have been approved in writing by Lessor not to be unreasonably withheld, delayed or conditioned. Lessee, upon demand therefor by Lessor, agrees to pay Lessor as additional rent all amounts reasonably expended by Lessor in connection with review of any such contract, plans, and specifications.
(e) With respect to any work to be performed by or on behalf of Lessee in connection with the installation, alteration, maintenance, repair, or removal of any equipment on the Tower (including any ascension of the Tower), or in or about the Tower Site, Lessee may only employ a contractor who has been approved in writing and in advance by Lessor. Lessor agrees that it will not unreasonably withhold its approval of any contractor who has the requisite experience and industry standard insurance coverage and who will, at the sole option of Lessor, provide a bond to cover any work which it has been retained to perform. Lessor agrees to consult on call in any emergency situation and immediately give its approval or disapproval.
(f) All work by or on behalf of the Lessee or Lessor shall be carried out (i) in a good and workmanlike manner; (ii) in accordance with established engineering standards and public ordinances, rules, and regulations applicable to such work, including, without limitation, any rules, regulations, or guidelines of the FCC implementing the National Environmental Policy Act of 1969, pertaining to electromagnetic or radio frequency radiation; (iii) in accordance with plans and specifications, including mechanical and electrical drawings, which have been submitted to and approved in writing and in advance by Lessor; and (iv) in accordance with Lessor's security procedures with respect to protection of the Tower Site.
(g) Notwithstanding the receipt of the approvals by Lessor as required in this paragraph, Lessee shall not be relieved of its responsibilities and liabilities for interference or otherwise as herein provided, nor shall said approval be deemed a waiver of any other rights of Lessor under this Lease.
(h) In the event that any notice of lien or lien shall be filed against any part of the Tower Site for work claimed to have been done or materials claimed to have been furnished to Lessee, the same shall be dismissed, withdrawn, discharged or bonded (to Lessor's reasonable satisfaction) by Lessee within thirty (30) days thereafter at Lessee's expense; and if Lessee shall fail to take such action as shall cause such lien to be discharged within thirty (30) days, Lessor may, at its option, discharge the same by deposit or by bonding proceedings. Lessor may require the lienor to prosecute the appropriate action to enforce the lienor's claim. In such case, Lessor shall give immediate notice to Lessee of such pending action or proceeding so that Lessee may have an opportunity to legally contest or defend the action or proceeding. If, after such notice to Lessee, a judgment is recovered on the claim, Lessor, at its sole option, may pay the judgment. Any reasonable amount paid or expense incurred or sum of money paid by Lessor (including reasonable attorney's fees) by reason of the failure of Lessee to comply with the 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.
9. Sections 14.03 and 14.04 of the Lease are amended and restated as follows:
aircraft and vehicle damage, vandalism, and malicious mischief. Lessee shall be solely responsible for its insurance on Lessee's Property, together with business interruption insurance.
10. Section 15(a) of the Lease is hereby restated as follows:
(a) In the event that the Tower Site (or any portion of the Tower Site necessary for the Tower, 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 to Lessee 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.
11. Section 21.10 of the Lease is hereby restated as follows:
12. Exhibit B of the Lease is amended and restated as follows:
That certain tract of land more particularly described as follows:
Land situate, lying and being in Charlotte County, Florida, viz:
The Northwest 1/4 of southeast 1/4 of Section 31, Township 42 South Range 25 East, said lands lying and being in Charlotte County, Florida.
13. Exhibit C of the Lease is hereby deleted.
14. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
15. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
16. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF FLORIDA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: ________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY RADIO, INC.
BY: ________________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Agreement of Sale (the "Agreement") is made this ___ day of February, 2000, between Beasley Broadcasting of Augusta, Inc., a Delaware corporation (the "Seller"), and Beasley Family Towers Inc., a Delaware corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns two (2) communications towers used in the operation of radio broadcast station WGAC-AM (the "______ Tower" and the "______ Tower", and collectively called herein the "Towers"), the ______ Tower situated on a certain tract of land which Seller leases from a third party (such tract of land called herein the "______ Tower Site"), and the ______ Tower situated on a certain tract of land which Seller leases from a third party (such tract of land called herein the "______ Tower Site", and together with the ______ Tower Site, collectively called herein the "Tower Sites"), the ______ Tower and the ______ Tower Site are more particularly described on Exhibit A attached hereto and the ______ Tower and the ______ Tower Site are more particularly described on Exhibit B attached hereto;
WHEREAS, Seller desires to sell and Buyer desires to purchase the Towers and certain personal property belonging to Seller and associated with the Tower Sites;
NOW, THEREFORE, in consideration of the mutual premises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
Seller agrees to sell, transfer, assign, convey and deliver to Buyer and Buyer agrees to purchase and accept from Seller, the following assets upon the terms and conditions contained herein (collectively, the "Assets"):
(a) The Towers; and
(b) The ground lease for each of the Tower Sites (the "Ground Leases"), such Ground Leases attached as Exhibit C hereto and incorporated herein.
(a) Upon the terms and subject to the conditions contained herein, Buyer shall assume and become responsible for any and all liabilities and obligations arising out of, or relating to events occurring after 12:01 am Eastern Standard Time on the Closing Date (the "Adjustment Time"), under the Ground Leases, and with respect to the ownership of the Towers, and the operation of the business relating to the Assets (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is understood and agreed that all liabilities to third parties relating to the Assets that arise out of any act, event, or transaction of Seller or the ownership of the Assets or the operation of the business relating to the
Assets prior to the Closing Date (the "Retained Liabilities") shall remain the
responsibility of Seller. Buyer shall not be required to defend any suit or
claim arising out of any Retained Liabilities, and subject to Section 13 hereof
Seller shall and hereby agrees to satisfy in due course all such Retained
Liabilities, and Seller shall protect and forever hold Buyer harmless from all
claims with respect to such Retained Liabilities. Subject to the provisions of
Section 13 hereof, it is understood and agreed that all liabilities relating to
the Assets that arise out of any act, event, or transaction of Buyer following
the Closing Date (the "Assumed Liabilities") shall be the responsibility of
Buyer. Seller shall not be required to defend any suit or claim arising out of
any Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due
course all such Assumed Liabilities, and subject to Section 13 hereof Buyer
shall protect and forever hold Seller harmless from all claims with respect to
such Assumed Liabilities.
(a) The purchase price for the Assets shall be the amount of Five Hundred Eighty Eight Thousand Eight Hundred Seventeen Dollars ($588,817.00) (the "Purchase Price"). The Purchase Price shall be adjusted at the Closing by the amount of any prorations derived by operation of Section 6 hereof, and for any other normal income and expense items related to the operation of the Tower Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the Purchase Price, the Assumed Liabilities and other relevant items among the Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"). Buyer and Seller will each report the federal, state, and local and other tax consequences of the purchase and sale contemplated hereby (including the filing of IRS Form 8594) in a manner consistent with such allocation.
(a) The Purchase Price shall be payable at Closing (as defined in Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase, Price Buyer shall deliver to Seller at Closing an unsecured promissory note of Buyer in the aggregate principal amount of Five Hundred Eighty Eight Thousand Eight Hundred Seventeen Dollars ($588,817.00), substantially in the form of Exhibit D (the "Purchase Note").
(a) Transfer of ownership of the Towers and assumption of the Assumed Liabilities (except for the Ground Leases, which shall be transferred according to Section 5(c) below) pursuant to Section 2 hereof shall be pursuant to the Assignment, Bill of Sale and Assumption Agreement from the Seller to Buyer in the form of Exhibit E attached hereto and incorporated herein (the "Assignment, Bill of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of all liens, encumbrances other than Permitted Encumbrances, if any. "Permitted Encumbrances" shall mean: (i) encumbrances for taxes, assessments, or governmental charges or levies which are not yet due and payable, or that, subject to adequate security for payment, are being contested; (ii) existing building restrictions, ordinances, easements of roads, privileges, or rights of public service companies or other rights of way, other restrictions or conditions of record, if any or other encumbrances disclosed in this Agreement (including the Exhibits attached hereto); (iii) easements, rights of way or other encumbrances that do not have a material adverse effect on the Assets or the operation of the business relating to the Assets as currently operated; (iv) encumbrances imposed by law, such as materialmen's, mechanic's, carrier's, workmen's, or repairmen's liens or other similar encumbrances attaching in the ordinary course of business or securing obligations that are not overdue; (v) encumbrances securing indebtedness, which will be removed prior to or at the Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed by Buyer pursuant to Section 2.
(c) Assumption of the Ground Leases pursuant to Section 2 hereof shall be pursuant to the Ground Leases Assignment and Assumption Agreement from Seller to Buyer in the form of Exhibit F attached hereto and incorporated herein (the "Ground Leases Assignment and Assumption Agreement").
(a) Current real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principle that all expenses and income arising from the operation of the Assets up through the Adjustment Time shall be for the account of Seller, and all expenses and income arising from the operation of the business relating to the Assets acquired by Buyer after the Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at
such other time as the parties agree, Buyer shall deliver to Seller a
certificate from Buyer which sets forth as of the Adjustment Time, all
adjustments to be made as provided in Section 6(a) above (the "Buyer's
Certificate"). Buyer shall provide Seller or its representatives access to
copies of such portions of books and records Seller may reasonably request
solely for the purposes of verifying such adjustments. The Buyer's Certificate
shall be final and conclusive unless objected to by Seller in writing within
ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach
agreement as to the amount of the adjustments to be made hereunder within thirty
(30) days after receipt of such written objection, which agreement, if achieved,
shall be binding upon all parties to this Agreement and not subject to dispute
or review.
(c) In the event of a disagreement between Buyer and Seller with respect to the accounting to be made hereunder, the parties agree that a public accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of such disagreement.
(d) Any amounts due for the adjustments provided for herein shall be paid within thirty (30) business days after final determination.
(a) Closing of the transactions contemplated by this Agreement (the "Closing") shall occur at a place and time mutually agreeable to Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned upon (i) all representations and warranties of Buyer being then true and complete in all material respects as if made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, (ii) all consents of third parties required for Buyer to consummate the transactions contemplated under this Agreement shall have been obtained, (iii) no order, decree or judgment of any court, agency or other governmental authority shall have been issued based on or arising out of the conduct, action, inaction, qualifications or status of Buyer or any of its affiliates, which would render it unlawful as of the Closing Date to effect the transactions contemplated by this Agreement in accordance with its terms, (iv) the delivery by Buyer of the Purchase Price in the manner set forth in Section 4(b) above, and (v) the delivery by Buyer of Buyer's Closing Documents (as defined in Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned upon (i) all representations and warranties of Seller being then true and complete in all material respects as if made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specific date, in which case such representation or warranty shall have been true and correct as of such date, (ii) all consents of third parties required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, (iii) no order, decree or judgment of any court, agency or other governmental authority shall have been issued based on or arising out of the conduct, action, inaction, qualifications or status of Seller or any of its affiliates, which would render it unlawful as of the Closing Date to effect that transactions contemplated by this Agreement in accordance with its terms, and (iv) the delivery by Seller of Seller's Closing Documents as set forth in Section 9 hereof.
(a) At Closing, Seller shall execute and/or deliver to Buyer the following (collectively "Seller's Closing Documents"):
(i) The Assignment, Bill of Sale and Assumption Agreement;
(ii) The Ground Leases Assignment and Assumption Agreement;
(iii) A certificate from an officer of Seller reasonably acceptable to Buyer confirming the accuracy of the representations and warranties in Section 10 as of the Closing Date;
(iv) Authorizing resolutions or minutes from Seller approving this Agreement and the transactions contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not a "foreign person" (as defined in Section 1445(f)(3) of the Code and the regulations issued thereunder); and
(vi) A lease agreement, by and between Buyer as lessor, and Seller, as lessee, substantially in the form of Exhibit G (the "Lease Agreement").
(b) At Closing, Buyer shall execute and/or deliver to Seller the following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this Agreement and the transactions contemplated herein;
(ii) A certificate from an officer of Buyer reasonably acceptable to Seller confirming the accuracy of the representations and warranties in Section 11 as of the Closing Date;
(iii) The Purchase Note executed by a duly authorized officer of Buyer;
(iv) A lease agreement, by and between Buyer as lessor, and Seller, as lessee, substantially in the form of Exhibit G (the "Lease Agreement");
(v) The Assignment, Bill of Sale and Assumption Agreement; and
(vi) The Ground Leases Assignment and Assumption Agreement.
(c) Seller's Closing Documents and Buyer's Closing Documents shall be collectively called herein the "Closing Documents". Buyer and Seller agree that such other documents as may be legally necessary or appropriate to carry out the terms of this Agreement or as reasonably requested by the other party shall be executed and delivered by the appropriate party at Closing.
As a material inducement to Buyer to enter into this Agreement, Seller represents and warrants to Buyer as follows:
(a) Seller has good and marketable title to the Towers, and the Assets are free and clear of liens, encumbrances, restrictions and security interests other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and deliver this Agreement and Seller's Closing Documents, and to perform its obligations hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed and delivered, will constitute valid and binding agreements of Seller, enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with, or result in, a breach of the terms of any agreements or instruments to which the Seller is a party which would result in the creation or imposition of any lien, charge or encumbrance on, or give to others any interest in or right to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all outstanding obligations for utilities and taxes through the Closing Date, except for such items as are covered by the proration of items of income and expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with, any person, entity, or authority will be required in connection with the execution and delivery of this Agreement or the transactions contemplated by this Agreement.
(g) Assuming all consents and approvals required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, neither the execution, delivery, and performance of, nor Seller's compliance with, the terms and provisions of this Agreement will conflict with, or result in, a breach of any of the terms, conditions, or provisions of the Articles of Incorporation or Bylaws of Seller, or any judgment, order, injunction, decree, regulation, or ruling of any court or any other governmental authority to which Seller is subject or any material agreement or contract to which Seller is a party or to which it is subject, or constitute a material default thereunder.
(h) Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
As a material inducement to Seller to enter into this Agreement, Buyer represents and warrants to Seller as follows:
(a) Buyer has full power and authority to execute and deliver this Agreement and Buyer's Closing Documents, and to perform its respective obligations hereunder and thereunder.
(b) This Agreement and Buyer's Closing Documents, when executed and delivered, will constitute valid and binding agreements of Buyer enforceable against Buyer, in accordance with their terms.
(c) Assuming all consents and approvals required for Buyer to consummate the transactions contemplated under this Agreement shall have been obtained, neither the execution, delivery, and performance of, nor Buyer's compliance with, the terms and provisions of this Agreement will conflict with or result in a breach of any of the terms, conditions, or provisions of the Articles of Incorporation or Bylaws of Buyer or any judgment, order, injunction, decree, regulation, or ruling of any court or any other governmental authority to which Buyer is subject or any material agreement or contract to which Buyer is a party or to which it is subject, or constitute a material default thereunder.
(d) Buyer acknowledges that the Towers are located on land which is leased and subject to the Ground Leases. Buyer acknowledges that it has received a copy of the Ground Leases and that there are no assurances that such Ground Leases will be extended or, if extended, whether the terms and conditions of any such extension will be the same as the terms and conditions of the current Ground Leases.
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.
(a) For a period of one (1) year from the date of this Agreement, Seller shall indemnify, defend, and hold Buyer, its affiliates, partners, employees, officers, directors, agents, and representatives harmless from and against any and all reasonable losses, costs, expenses, liabilities, penalties, claims, and other damages including, but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or warranties, or the breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Seller of any of its covenants or agreements contained herein or in any Seller's Closing Document;
(iii) the Retained Liabilities; and
(iv) any and all losses, liabilities or damages resulting from Sellers' operations or ownership of any Tower prior to the Closing Date, including any and all liabilities arising under the Assets which relate to events occurring prior to the Closing Date.
(b) For a period of one (1) year from the date of this Agreement, Buyer shall indemnify, defend and hold Seller, its affiliates, employees, officers, directors, agents and representatives harmless from and against any and all losses, costs, expenses, liabilities, penalties, claims, and other damages, including but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigations, reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties, or the breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or agreements contained herein or in any Buyer's Closing Document;
(iii) the Assumed Liabilities; and
(iv) any and all losses, liabilities or damages resulting from Buyer's operations or ownership of any Tower subsequent to the Closing Date, including any and all liabilities arising under the Assets which related to events occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified Party") becomes aware of circumstances which would entitle such party to indemnification by the other party hereunder (the "Indemnifying Party"), the Indemnified Party shall give the Indemnifying Party prompt written notice, with reasonable detail, of such claim. Upon receipt of such notice by the Indemnified Party to the Indemnifying Party, the Indemnifying Party shall have the option of defending against such pending litigation through engagement of legal counsel of its choice, provided, however, that the Indemnifying Party's choice of legal counsel must be acceptable to the Indemnified Party in its reasonable discretion. In the event the Indemnifying Party elects to defend, the Indemnifying Party shall keep the Indemnified Party fully informed on a timely basis of the status of the pending litigation. In the event that the Indemnifying Party elects to defend
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.
(iii) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to Sixty Thousand Dollars
($60,000.00) and Seller shall have no other liability
or responsibility for indemnification hereunder.
(e) Subsequent to the Closing, indemnification under this
Section 13 shall be the exclusive remedy of Buyer with respect to any legal,
equitable or other claim for relief based upon this Agreement or arising
hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, Buyer's obligation to indemnify Seller shall be subject to all of the following limitations:
(i) The amount of any Losses incurred by Seller shall be reduced by (A) the amount Seller recovers (after deducting all attorneys' fees, expenses and other out-of-pocket costs of recovery) from any insurer or other party liable for such Losses, and Seller shall use commercially reasonable efforts to effect any such recovery and (B) any tax benefit realized by Buyer or its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for Losses as to which Seller has given Buyer a Notice of Claim on or prior to the first anniversary of the Closing Date.
(iii) Any amounts owed to Seller by Buyer pursuant to this
Section 13 shall be limited to Sixty Thousand Dollars
($60,000.00) and Buyer shall have no other liability
or responsibility for Indemnification hereunder.
(g) Subsequent to the Closing, indemnification under this
Section 13 shall be the exclusive remedy of Seller with respect to any legal,
equitable or other claim for relief based upon this Agreement or arising
hereunder.
(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.
(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).
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.
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.
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.
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.
This Agreement may not be changed, modified or amended, in whole or in part, except in writing, signed by all parties.
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: Beasley Broadcasting of Augusta, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George Beasley
President
Phone: (941) 263-5000
Fax: (941) 434-8950
If to the Buyer: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
|
Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
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.
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.
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.
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.
This Agreement is made and shall be governed by and construed in accordance with the internal laws of the State of Georgia.
The headings and captions in this Agreement are for convenience only and are not part of this Agreement.
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.
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.
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]
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:
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: __________________________________
Name: George G. Beasley
Title: President
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: __________________________________
Name: B. Caroline Beasley
Title: Secretary
Exhibit A Description of ______ Tower and ______
Tower Site
Exhibit G Description of ______ Tower and ______
Tower Site
Exhibit C Ground Leases
Exhibit D Form of Purchase Note
Exhibit E Form of Assignment, Bill of Sale and
Assumption Agreement
Exhibit F Form of Ground Leases Assignment and
Assumption Agreement
Exhibit G Form of Lease Agreement
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DESCRIPTION OF ______ TOWER AND ______ TOWER SITE
WGAC-AM
[INSERT TOWER AND LEGAL DESCRIPTION]
DESCRIPTION OF ______ TOWER AND ______ TOWER SITE
[INSERT 2/nd/ TOWER AND LEGAL DESCRIPTION]
GROUND LEASES
THIS LEASE AGREEMENT ("Lease"), made this ____ day of February, 2000 by and between BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and BEASLEY BROADCASTING OF AUGUSTA, INC., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns two (2) communications towers, the first of such towers described on Exhibit A attached hereto (the "______ Tower"), and located on a certain tract of real estate located in Augusta, Georgia described in Exhibit B attached hereto (hereinafter referred to as the "______ Tower Site"); and the second of such towers described on Exhibit C attached hereto (the "______ Tower" and together with the ______ Tower, collectively called herein the "Towers"), such ______ Tower located on a certain tract of real estate located in Augusta, Georgia and described in Exhibit D attached hereto (hereinafter referred to as the "______ Tower Site", and together with the ______ Tower Site, collectively called herein the "Tower Sites"; the term "Tower Sites" shall also include any appurtenant easements on each of such tracts of land);
WHEREAS, Lessor desires to lease the Towers for the purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Towers from Lessor therefor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants herein contained, the parties hereto agree as follows:
Commencement of Term. The term of this Lease and the payment of rent and other performances in accordance with the terms of this Lease shall commence on the date hereof.
Exhibits. All Exhibits referred to in this Lease are incorporated herein by reference.
Towers. Lessor hereby leases to Lessee, and Lessee leases from Lessor, the Towers for the purposes of the broadcast transmission of WGAC-AM, Augusta, Georgia.
Ownership of Property; Access.
Except for "Lessee's Property" as defined below, all tenant
improvements including all fixtures and trade fixtures
shall become the property of the Lessor, and shall
remain with the Towers after the Lessee vacates same.
The Lessee's antenna, transmission line, and other
equipment, together with any replacements thereof and
modifications and additions thereto which are permitted
hereunder, shall be and remain Lessee's property, and
are hereinafter referred to as "Lessee's Property".
Lessee will be solely responsible for the maintenance
of Lessee's Property, including all expenses associated
with such repair.
Lessee shall have reasonable right of access to the Towers
at all times in emergency situations and whenever
reasonably necessary for equipment maintenance and
repair. Lessee shall also have reasonable rights of
access at any time to the Towers for ingress, egress,
utilities, the locating and usage of cabling and
related equipment, operations, maintenance, repair or
remodeling, or other engineering purposes.
By Lessee.
Subject to all appropriate government approvals, including
the Federal Communications Commission ("FCC"), the
Towers may be used only for activities related to the
operation of radio broadcast stations. Such operations,
shall be conducted in accordance with the standards
imposed by the FCC and any other governmental body with
authority over such transmission and operations.
Except as expressly permitted by this Lease and unless prior
written approval of Lessor has been given, Lessee shall
not construct or make any improvements or install any
equipment on the Towers. Lessee may repair and maintain
equipment as it deems necessary to its operations within Lessee's space in all respects in compliance with the terms hereof. The Towers, Lessee's interior and exterior equipment, and all other improvements shall be maintained in an orderly and professional manner.
By Lessor.
Subject to the rights elsewhere granted to Lessee in this
Lease and with prior notice to Lessee and no loss of
service or interruption (beyond a temporary, non-
recurring and de minimis amount), Lessor reserves the
right to use the Towers, at its own expense, as it sees
fit and to fasten additional equipment to the Towers
for any purpose, including the right to install
transmitting and/or receiving antennas of others;
provided that Lessor shall use reasonable efforts to
restrict any loss of Lessee's service or interruption
pursuant to this Section 3.02(a) to the hours of 1:00
a.m. to 5:00 a.m.
Subject to the rights elsewhere granted to Lessee in this Lease, Lessor shall have the right to use for itself or lease to others the remainder of the Tower Sites or use of any of the improvements thereon, space in any building constructed by Lessor for any purpose, including, but not limited to, any kind of broadcasting or communication, simultaneous transmissions on AM, FM, SSB, VBIF, UHF, and/or microwave frequencies, and all rental revenues received therefrom shall belong exclusively to Lessor. Prior to permitting the fastening of a material amount of additional equipment, Lessor shall cause a structural analysis of the Towers to be conducted by a reputable mechanical consultant chosen by Lessor in order to ensure that any such additions conform to recognized engineering standards.
Except as expressly provided for herein, Lessor shall have no liability for any action or omission taken in exercise of its rights hereunder upon reasonable reliance on recommendation of its engineering personnel.
Subject to the terms of this Lease, Lessor also reserves the right to erect one (1) or more additional towers either of on the Tower Sites.
Term. This Lease shall have an initial term of twenty (20) years from the Commencement Date established in Paragraph 1.01 hereof.
Rental. Lessee shall pay rent for each consecutive twelve- month period beginning on the Commencement Date (each a "Lease Year") during the term of this Lease. Such rental payment shall be payable in equal and successive monthly installments in advance beginning with the Commencement Date and continuing thereafter on the first day of each month during the term of this Lease, such rental payments to be made, without any setoff or deduction whatever, according to the following schedule:
Lease Year Rent Per Lease Year Monthly Rent
1 $53,810.04 $4,484.17
2 $53,810.04 $4,484.17
3 $53,810.04 $4,484.17
4 $53,810.04 $4,484.17
5 $53,810.04 $4,484.17
6 $53,810.04 $4,484.17
7 $53,810.04 $4,484.17
8 $53,810.04 $4,484.17
9 $53,810.04 $4,484.17
10 $53,810.04 $4,484.17
11 $53,810.04 $4,484.17
12 $53,810.04 $4,484.17
13 $53,810.04 $4,484.17
14 $53,810.04 $4,484.17
15 $53,810.04 $4,484.17
16 $53,810.04 $4,484.17
17 $53,810.04 $4,484.17
18 $53,810.04 $4,484.17
19 $53,810.04 $4,484.17
20 $53,810.04 $4,484.17
|
Payment of Rentals. Rentals to be paid hereunder shall be paid monthly in lawful money of the United States of America and shall be paid in advance on the first day of each month during the term of this Lease by crediting the payment owed to Lessee by Lessor under that certain Promissory Note made by Lessor in favor of Lessee dated _______________, 2000, on the first day of each month during the term of this Lease. In the event of prepayment of the Promissory Note by Lessor or other action resulting in amounts equal to any monthly rental payment not being concurrently due from Lessor under the Promissory Note, then Lessee shall pay the monthly rental amount in advance on the first day of the month in question by mailing payment to the Lessor c/o Beasley Family Towers, Inc., 3303 Riviera Drive, Suite 200, Naples, FL 34103, Attn: Ms. B. Caroline Beasley, or to such other person or address as Lessor may in writing direct. The payment of the monthly rental for the first month of the term of this Lease shall be prorated based on the number of days remaining in such month, including the first day on which this Lease become effective.
Electricity and Other Utilities. In addition to the payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its own telephone lines and service, electrical service (including electrical service to the Towers used by Lessee as measured by a separate electrical meter at Lessee's expense). Lessor shall pay for the electrical service to the Towers for the lighting of the Towers.
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 Towers, and all other rights and privileges granted herein, without hindrance, eviction, or molestation by Lessor or any party claiming by or through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the full power and authority to enter into and perform this Lease. Any and all necessary corporate resolutions, encumbrance certificates, etc., shall be supplied by Lessee upon the request of Lessor.
Permits. Lessor shall obtain all necessary licenses or permits in
connection with the Towers except that Lessee shall obtain, at its own expense,
any and all necessary licenses or permits from such governmental authorities as
shall have jurisdiction in connection with the (b) the operations, installation,
repair, alteration, or replacement of Lessee's equipment (including, without
limitation, Lessee's antenna and transmission and/or receiving equipment); or
(c) with any of Lessee's activities thereon or contemplated by this Lease. At
Lessor's request, Lessee shall furnish Lessor with copies of same, and shall
abide by the terms and provisions of such licenses and permits.
During Term of Lease.
Lessee, at its own cost and expense, shall maintain and repair Lessee's Property, including specifically its antenna, related equipment, transmission lines, transmitters, and other equipment. Lessor shall perform the same tasks with respect to the Towers. All such maintenance shall be conducted by the parties in accordance with good engineering standards and in conformity with the requirements of the FCC or any other body having jurisdiction over the Lessee and its property, including, without limitation, any rules, regulations, or guidelines of the FCC implementing the National Environmental Policy Act of 1969 pertaining to electromagnetic or radio frequency radiation. Each of Lessor and Lessee shall take all reasonable precautions to avoid interference or hindrance to and with the operations of the other party hereto. In this regard, each party hereto agrees to eliminate, without cost to the other party hereto, any interference or hindrance to such other party's operation. Maintenance and repair of Lessee's Property shall be performed only by a reputable contractor and in accordance with the provisions of subsections (d), (e), and (f) hereof.
Lessor retains the right to inspect Lessee's Property during normal business hours upon reasonable notice to Lessee, except that, in the event of an emergency, as determined by Lessor, Lessor may enter at any time, giving notice of such emergency to Lessee as soon as is practical. In the event that Lessor reasonably determines that Lessee has not maintained Lessee's Property and equipment in good order and repair according to industry standards, and that such repairs are necessary for the safety of the Towers or the Tower Sites, or the prevention of interference with Lessor or any other user of the Towers or any other broadcaster, Lessor may, at its option, make such emergency repairs to the property as it deems reasonably necessary, and any amount expended by Lessor therefor shall be reimbursed to it by Lessee immediately upon presentation of a statement and shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing any of Lessee's Property which Lessee has failed to properly maintain.
With respect to the non-emergency repairs which Lessor, in its reasonable discretion, determines that Lessee should make to maintain Lessee's Property and equipment in good order, and that such repairs are necessary for the safety of the Towers or Tower Sites, or the prevention of interference with Lessor, in violation of the terms of this Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance and repairs required to be performed by Lessee. In the event that, within ten (10) business days following such written notice (or such longer period as may be reasonably necessary taking into account all facts and circumstances), Lessee shall not have performed such maintenance and repairs, Lessor may, at its sole option, make such repairs as it deems reasonably necessary, and any amount expended by Lessor therefor shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing the property and equipment of Lessee which Lessee has failed to properly maintain.
No work (including electrical work), except for emergency repairs that Lessee shall perform to return to, or maintain the station on air in the event of a failure, will be performed by the Lessee in connection with the installation, alteration, maintenance, repair, or removal of any of Lessee's transmission lines, antenna, and other equipment on the Towers unless the Lessee submits to Lessor a copy of the proposed contract and also detailed plans and specifications of the work to be done, and both the contract and the plans and specifications have been approved in writing by Lessor not to be unreasonably withheld, delayed or conditioned. Lessee, upon demand therefor by Lessor, agrees to pay Lessor as additional rent all amounts reasonably expended by Lessor in connection with review of any such contract, plans, and specifications.
With respect to any work to be performed by or on behalf of Lessee in connection with the installation, alteration, maintenance, repair, or removal of any equipment on the Towers (including any ascension of the Towers), or in or about the Tower Sites. Lessee may only employ a contractor who has been approved in writing and in advance by Lessor. Lessor agrees that it will not unreasonably withhold its approval of any contractor who has the requisite experience and industry standard insurance coverage and who will, at the
sole option of Lessor, provide a bond to cover any work which it has been retained to perform. Lessor agrees to consult on call in any emergency situation and immediately give its approval or disapproval.
All work by or on behalf of the Lessee or Lessor shall be carried out (i) in a good and workmanlike manner; (ii) in accordance with established engineering standards and public ordinances, rules, and regulations applicable to such work, including, without limitation, any rules, regulations, or guidelines of the FCC implementing the National Environmental Policy Act of 1969, pertaining to electromagnetic or radio frequency radiation; (iii) in accordance with plans and specifications, including mechanical and electrical drawings, which have been submitted to and approved in writing and in advance by Lessor; and (iv) in accordance with Lessor's security procedures with respect to protection of the Tower Sites.
Notwithstanding the receipt of the approvals by Lessor as required in this paragraph, Lessee shall not be relieved of its responsibilities and liabilities for interference or otherwise as herein provided, nor shall said approval be deemed a waiver of any other rights of Lessor under this Lease.
In the event that any notice of lien or lien shall be filed against any part of the Tower Sites for work claimed to have been done or materials claimed to have been furnished to Lessee, the same shall be dismissed, withdrawn, discharged or bonded (to Lessor's reasonable satisfaction) by Lessee within thirty (30) days thereafter at Lessee's expense; and if Lessee shall fail to take such action as shall cause such lien to be discharged within thirty (30) days, Lessor may, at its option, discharge the same by deposit or by bonding proceedings. Lessor may require the lienor to prosecute the appropriate action to enforce the lienor's claim. In such case, Lessor shall give immediate notice to Lessee of such pending action or proceeding so that Lessee may have an opportunity to legally contest or defend the action or proceeding. If, after such notice to Lessee, a judgment is recovered on the claim, Lessor, at its sole option, may pay the judgment. Any reasonable amount paid or expense incurred or sum of money paid by Lessor (including reasonable attorney's fees) by reason of the failure of Lessee to comply with the foregoing provisions of this paragraph,
or in defending any such action, shall be paid to Lessor by Lessee, and shall be treated as additional rent hereunder.
At Expiration or Termination. At the expiration or termination of this Lease, Lessee shall promptly surrender possession of the Towers to Lessor in as good a condition as the same were received at the commencement of the term, reasonable wear and tear and damage by fire or other casualty beyond Lessee's reasonable control excepted.
Maintenance of Towers.
Lessor shall maintain the Towers in good repair. Lessee shall comply with any security policies reasonably established from time to time by Lessor.
Lessor assumes the obligation and responsibility for complying with the requirements of the FCC regarding obstruction, marking and lighting of the Towers. Lessor shall maintain the Towers and support systems in good repair and in good operating condition in accordance with the requirements of governmental authorities.
In the event that Lessor determines that repairs, alterations, or improvements are necessary or desirable to the Towers or the leased spaces of other tenants, Lessor may, upon reasonable notice and for the shortest practical period of time (except for emergency situations), close entrance doors, common areas, drive-ways, rights-of-way, service areas, parking areas, or any other facilities at its discretion without being liable to Lessee; provided that if any of the above would restrict Lessee's ability to broadcast, Lessor shall use reasonable efforts to restrict any closure or interruption pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00 a.m. The closing of entrances, doors, common areas, parking areas, or other facilities for the making of the repairs, alterations, or improvements described herein shall, under no circumstances, constitute an eviction of the Lessee or be grounds for termination of this Lease or the withholding of any rental payments or other payments or performances required to be paid or made by Lessee under the terms hereof, provided, Lessor shall use reasonable efforts to ensure that any action taken in accordance with this paragraph shall not adversely affect the rights of Lessee hereunder. Under no such circumstances shall Lessee be entitled to terminate this
Lease nor shall it be entitled to compensation for any loss or damage it may sustain (including loss of use, loss of advertising/sponsorship revenues, and consequential damages) by reason of such changes or alterations.
Alterations.
Lessee shall have the right, at its own expense, to make such changes and alterations in the Lessee's Property situated on the Towers, subject to Paragraph 8.01 and Paragraph 11 hereof, as its operations may require, including the renovation, replacement, or removal of its antenna; provided, however, that such changes or alterations conform with recognized engineering standards and, if necessary, have been approved by the FCC and any other authority having jurisdiction over Lessee; and provided further, that plans and specifications are first submitted to and approved in writing by Lessor. Lessee shall make no changes in the equipment or equipment position without such approval, and Lessor shall not unreasonably fail to give such approval within ten (10) business days.
This Lease is based upon carefully computed tower loading capacity. If any change proposed by Lessee in the type, location, or positioning of Lessee's Property should, in Lessor's judgment, require a computer or other type of feasibility study to determine the loading capacity of any or all of the Towers, such study shall be performed by an engineer chosen by Lessor, and approved by Lessee (such approval not to be unreasonably withheld, delayed or conditioned) whose decision shall be final and binding upon both parties. The cost of such study or any other costs reasonably incurred by Lessor in determining the feasibility of any proposed change or alteration in the type, location, or positioning of Lessee's Property shall be borne entirely by Lessee.
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Towers after the date hereof, notification of the particulars of such proposed installation shall be submitted to Lessor hereto and any other lessees or users of space on the Towers whose names and addresses are
supplied to Lessee by Lessor in writing, and the Lessor and such other users will be requested to advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days after receipt of such notification, whether they have any reasonable objections thereto on the grounds that objectionable interference may result; provided, this Section 11.01 shall not apply to any currently installed Lessee's Property or its replacement, maintenance or repair. If the Lessor or any other user shall reasonably object within this period to such plans and Lessee is unwilling to alter its plans to meet the objections, the dispute shall be submitted to an independent professional engineer chosen by Lessor, and such engineers decision shall be final and binding upon all parties. The cost of any such studies shall be borne by Lessee.
Interference with Lessor, Lessee, or Others. Notwithstanding the provisions of Paragraph 11.01, should any change, after the date hereof, in the facilities or mode of operation of Lessee or Lessee's failure to comply with the Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable electrical or physical interference (including interference from any other structure erected on either of the Tower Sites) to the television and/or radio broadcasting and/or receiving operations of any other lessee, then, promptly after written notification of such interference, the Lessee, at its sole expense, will take such steps as may be reasonably required to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filters or other equipment, provided that, if such interference is caused, after the date hereof, by the failure of the Lessor or any other lessee suffering the interference to comply with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor shall, or shall cause the other lessee suffering the interference, at its sole expense, to comply with such Maintenance Standards. Any dispute as to the cause of interference, or the steps reasonably required to correct it, arising under this Paragraph. 11.02, shall be submitted to an independent professional engineer chosen by Lessor, and such engineer's decision shall be final and binding upon the parties. If such interference is found to be caused by such changed facilities or operation, the fees and charges of the engineer to whom the dispute is referred shall be borne by the party whose changed facilities or mode of operations gave rise to the claimed interference. If such interference is found not to be caused by such changed facilities or operations, the fees and charges of the engineer to whom the dispute is referred shall be borne by the objecting party. All other leases and/or agreements to lease space at the Tower Sites shall contain this language.
Interference by Other User. Any subsequent agreement under which Lessor allows any other person to occupy any portion of the Towers shall provide that, should the installation, operation, or maintenance of the equipment or the activities of such other person cause any objectionable interference with the operations of Lessor or Lessee, then, promptly after written notification of such, such other tenant or user, at its sole expense, will take such steps as may be reasonably necessary to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filter or other equipment, provided that if such interference is caused by the failure of any other lessee to comply with the Maintenance Standards, as defined in Paragraph 11.04, such other lessee will, at its sole expense, comply with such Maintenance Standards. To the best of its ability, Lessor shall not permit any operations by other tenants, the effect of which would be to prohibit Lessee from operating in the manner contemplated herein, without the prior written consent of Lessee. Lessor shall have no liability for any action or omission taken upon reasonable reliance on the
recommendation of qualified engineering personnel. Lessor agrees that it will take commercially reasonable efforts to ensure that the installation, operation or maintenance of its equipment which is installed after the commencement date of this Lease on, in or around the Towers shall not cause any objectionable interference with the operations of Lessee. Immediately upon notification of such interference by Lessee, Lessor shall at its sole expense take such steps as may be reasonably necessary to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filter or other equipment.
Definition of "Maintenance Standards". For the purposes of this Lease, compliance with "Maintenance Standards" shall mean that a tenant or user of the Towers shall (a) maintain and operate its equipment in accordance with the requirements, rules, regulations, and guidelines of the FCC, and the standards of manufacturers of the equipment; and (b) maintain and operate its equipment in accordance with good engineering practice.
Utilities. Subject to the required approvals and cooperation of any governmental authority or public utilities, Lessee shall arrange and be responsible for the installation and provision of electrical and telephone lines serving Lessee's Property at any building on the Tower Sites owned by Lessor. Lessee shall be responsible for procurement of and payment for all telephone services as described in Paragraph 5.03 and used by Lessee.
Payment of Taxes. Lessee shall pay all real estate taxes, assessments, or levies assessed or imposed against the Tower Sites (including the Towers), and all taxes which may be assessed against the Towers and any buildings thereon. [Foregoing obligation is subject to $200,000 12-month limit when aggregated with other borrowers under Credit Agreement per 1.5D of First Amendment to Credit Agreement]. Lessee shall pay all personal property or other taxes assessed or imposed on Lessee's Property, and shall cooperate with Lessor to ensure that such property is properly separated from that of Lessor or other tenants for assessment purposes.
Public Liability. Lessee shall procure and maintain comprehensive
public liability insurance, naming Lessor as an additional insured as its
interests shall appear, covering all of the Lessee's operations and activities
on the Towers, including but not limited to, the operations of contractors and
subcontractors and the operation of vehicles and equipment (including the
elevators on the Towers), with limits of liability for the term of this Lease of
not less than [Five Million Dollars ($5,000,000.00)] in the aggregate for
personal injury or death in any occurrence and not less than [Five Million
Dollars ($5,000,000.00)] to cover property damage, with a liability umbrella of
not less than [One Million Dollars ($1,000,000.00).] Certificates evidencing
such insurance shall be furnished to Lessor upon its request. The amounts
specified hereunder shall be revised every [five (5) years] to such amounts as
Lessor may reasonably require upon the advice of its insurance consultants.
[Foregoing obligation is
subject to $200,000 12-month limit when aggregated with other borrowers under Credit Agreement per 1.5D of First Amendment to Credit Agreement].
Contractor Liability. Lessee shall also cause the contractors erecting, installing, or maintaining Lessee's Property or performing any other work for Lessee on the Tower Sites to procure reasonable public liability insurance acceptable to Lessor and naming the Lessee and Lessor as named insureds. Certificates evidencing such insurance shall be furnished to Lessor in advance of any work being performed.
Insurance on the Towers. Lessee shall procure and maintain physical damage insurance on the Towers in an amount sufficient to repair or replace the Towers with such coverage to be on an "All Risks" basis, including, without limitation, coverage for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse, explosion, aircraft and vehicle damage, vandalism, and malicious mischief. [Foregoing obligation is subject to $200,000 12-month limit when aggregated with other borrowers under Credit Agreement per 1.5D of First Amendment to Credit Agreement]. Lessee shall be solely responsible for its insurance on Lessee's Property, together with business interruption insurance.
Damage to the Towers. In the event that the Towers are destroyed
or damaged by fire, lightning, windstorm, flood, earthquake, explosion,
collapse, aircraft, or other vehicle damage or other casualty covered by
insurance, Lessor shall promptly reconstruct or repair the Towers to such good
condition as existed before the destruction or damage, and give possession to
Lessee of substantially the same space leased hereunder. Lessee shall promptly
pay over to Lessor any insurance proceeds it receives from insurance policies
Lessee is required to procure under Section 14.03 hereof for the purpose of use
by Lessor to fund reconstruction of the Towers as required of Lessor under this
Section 14.04. If the Towers are in need of such repair or is so damaged by
fire, lightning, windstorm, flood, earthquake, explosion, aircraft or other
vehicle damage, collapse, or other casualty that reconstruction or repair cannot
reasonably be undertaken without dismantling Lessee's antenna, then upon written
notice to Lessee, Lessor may remove any such antenna and interrupt the signal
activity of Lessee, but will use its best efforts to have the antenna replaced
as soon as reasonably possible. Lessor agrees to provide Lessee alternative
towers, if available, during such reconstruction/repair period. If such towers
are not available, then Lessee shall be responsible for procuring its own
alternative towers. No monetary or other rental shall be due pursuant to the
terms of this Lease for such time as Lessee is unable to conduct its
broadcasting activities on the Towers without significant diminution of signal
quality as a result of such total or partial destruction or damage or need of
repair, and Lessor shall refund to Lessee any rent paid in advance for such
time. Should Lessor not either (a) inform Lessee in writing within ninety (90)
days of the date of destruction of Lessor's intent to replace the Towers or (b)
replace the Towers within one (1) year if Lessor has provided the notice
described in clause (a) above, of the date of destruction, or repair the same
within such shorter time period after the casualty as may be reasonable, then
Lessee, upon thirty (30) days' written notice to Lessor, may terminate this
Lease, provided if Lessor has provided the notice described in clause (a) above,
Lessee must make such election within one hundred twenty (120) days prior to the
expiration of said repair or replacement period. Lessee agrees that it shall
maintain adequate business interruption insurance at all times during the term
of this Lease to adequately protect it from any interruption of signal
activities due to damage to any or all of the Towers
(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.
In the event that any or all of the Towers (or any portion of the Towers necessary for the guy wires, or other appurtenances necessary to Lessee's broadcasting operations) is acquired or transferred or condemned pursuant to eminent domain proceedings (or the threat thereof), the obligation of the parties under this Lease shall be terminated as of the date of acquisition or transfer. Lessor shall be entitled to the entire condemnation award. If Lessor determines to build new towers as a replacement for the Towers on the condemned property, Lessor agrees to lease the new tower on terms reasonably equivalent to the terms of this Lease.
In the event that this Lease is terminated due to eminent domain proceedings, then Lessee shall be relieved of any further obligations to make any rental payments or performances for any period after the date of such termination of this Lease; and subject to offset or withholding by Lessor to cover any unpaid additional rent or other authorized charges which may be owed through the date of termination, Lessee shall be entitled to a refund of any advance rental sums which it has paid in proportion to the period of the Lease through such date of termination.
Successors. All rights and liabilities herein given to or imposed upon the respective parties hereto shall, to the extent that such are assignable, extend to and bind the several and respective successors and assigns of the parties hereto.
Assignment. Lessee shall not assign, sublet, or transfer this Lease or any interest therein, or permit or allow through any act or default of itself, or of any other person, any transfer thereof by operations of law or otherwise without the prior written consent of Lessor except:
Lessee may assign this Lease to any bona fide third party purchaser of substantially all the assets comprising of Lessee's radio station broadcasting from the Tower Sites, who shall execute an assignment and assumption agreement in form reasonably acceptable to Lessor; and
Lessee may assign or transfer all or a portion of the assets of Lessee, including this Lease, to any corporation controlling, controlled by, or under common control with, Lessee.
Any assignment or subletting by Lessee except as permitted herein shall be void and of no effect. Any permitted assignment shall not relieve Lessee of any of its liabilities hereunder. A change in control of Lessee, but not the mortgaging by Lessee of its rights hereunder, shall constitute an assignment of this Lease. Lessor agrees to enter into documentation reasonably requested by any lender to Lessee in connection with Lessee's mortgaging of its rights hereunder.
Lessor may assign or transfer this Lease without the consent of Lessee, but shall notify Lessee following any transfer or assignment.
Default by Lessee.
If Lessee shall make default in making any payment
herein provided for and any such default shall
continue for a period of ten (10) business days
after written notice to Lessee, or if Lessee shall
make default in the performance of any obligation
of Lessee herein (other than as to payment of
money) and any such default shall continue for a
period of thirty (30) days after written notice to
Lessee, or if Lessee shall file a voluntary
petition in bankruptcy, or if Lessee shall file
any petition or institute any proceedings under
any Insolvency or Bankruptcy Act or any amendment
thereto hereafter made, seeking to effect its
reorganization or a composition with its
creditors, or if, in any proceedings based on the
insolvency of Lessee or relating to bankruptcy
proceedings, a receiver or trustee shall be appointed for Lessee or either or both of the Towers, or if any proceedings shall be commenced for the reorganization of Lessee (which, in the case of involuntary proceedings, are not dismissed or stayed within 30 days of the commencement thereof), or if the leasehold estate created hereby shall be taken on execution or by any process of law, or if Lessee shall admit in writing its inability to pay its obligations generally as they become due, then Lessor may, at its option, terminate this Lease without notice, and declare all amounts due or to become due hereunder immediately due and payable, and Lessor's agents and servants may immediately, or any time thereafter, reenter the Towers by reasonably necessary force, summary proceedings, or otherwise, and remove all persons and properly therein, without being liable to indictment, prosecution, or damage therefor, and Lessee hereby expressly waives the service of any notice in writing of intention to reenter said Towers. Lessor may, in addition to any other remedy provided by law or permitted herein, at its option, relet the Towers (or any part thereof) on behalf of Lessee, applying any monies collected first to the payment of expenses of resuming or obtaining possession, and, second, to the payment of the costs of placing the premises in rentable condition, including any leasing commission, and, third, to the payment of rent due hereunder, and any other damages due to the Lessor. Any surplus remaining thereafter shall be paid to Lessee, and Lessee shall remain liable for any deficiency in rental, the amount of which deficiency shall be paid upon demand therefor to Lessor.
Should Lessor re-enter and terminate according to the provisions of this subparagraph, Lessor may remove and store the Lessee's Property at the expense and for the account of Lessee. Alternatively, Lessor may sell, or cause to be sold, Lessee's Property at public sale to the highest bidder for cash, and remove from the proceeds of such sale any rent or other payment then due Lessor under this Lease. Any disposition of the Lessee's Property pursuant thereto shall be subject to the rights of any lender to Lessee holding a mortgage on Lessee's Property and shall be made in a manner that is commercially reasonable within the meaning of the Uniform Commercial Code as in effect in the State of Georgia at the time of such disposition.
Each party warrants and represents that it has the
authority to enter into this Lease and to grant
the rights it grants hereunder, and that
performance of its obligations pursuant to this
Lease will not violate the rights of any third
party whatsoever. Lessee agrees to indemnify and
defend Lessor against any claim for damages,
losses, liabilities, costs, or expenses, including
reasonable attorney's fees, arising (a) out of any
breach by Lessee of its warranties,
representations, or covenants under this Lease;
(b) out of the use, management, or occupancy of
the Towers by Lessee, its agents, or invitees; (c)
out of any omissions, negligence or willful
misconduct of Lessee, its agents, servants,
employees, licensees, or invitees; (d) out of
failure of Lessee to comply with any laws,
statutes, ordinances, or regulations; (e) out of
Lessee's failure to maintain equipment in proper
working order; and (f) out of Lessee's failure to
comply with any of its other obligations under the
terms of this Lease.
(b) Lessor agrees to indemnify and defend Lessee
against any claim for damages, losses,
liabilities, costs, or expenses, including reasonable attorney's fees, arising
(a) out of any breach by Lessor of its warranties, representations, or covenants
under this Lease; (b) out of the use, management, or occupancy of the Towers by
Lessor, its agents, or invitees; (c) out of any omissions, negligence or willful
misconduct of Lessor, its agents, servants, employees, licensees, or invitees;
(d) out of failure of Lessor to comply with any laws, statutes, ordinances, or
regulations; (e) out of Lessor's failure to maintain equipment in proper working
order; and (f) out of Lessor's failure to comply with any of its other
obligations under the terms of this Lease.
Any party seeking indemnification hereunder ("Indemnified Party") shall provide the other party ("Indemnifying Party") reasonably prompt notice of known claims giving rise to any claim for indemnity, and the Indemnifying Party shall have the right and opportunity to undertake the legal defense of such claims. The Indemnified Party and its counsel may nevertheless participate in (but not control) such proceedings, negotiations, or defense at its own expense. In all such cases, the Indemnified Party will give all reasonable assistance to the Indemnifying Party, including making the Indemnified Party's employees and documents available as reasonably requested without charge.
Estoppel Certificate. Within ten (10) days after either
party's request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
Attornment. Lessee shall, in the event of a sale or assignment of Lessor's interest in any of the Towers, or, if any of the Towers come into the hands of any Trustee under a Deed of Trust or a mortgagee or any other person, whether because of a foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person, and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's request any attornment agreement reasonably required by any mortgagee, Trustee, or other such person to be executed containing such provisions as such mortgagee, Trustee, or other person reasonably requires, provided, however, that such attornment shall not modify the terms of this Lease.
Failure to Execute Instruments. Either party's failure, without good and reasonable cause, to execute instruments or certificates provided for in this Paragraph 20, within fifteen (15) days after the receipt by such party of a written request, shall be a default under his Lease.
Relationship of Parties. Nothing contained herein and no acts of the parties herein shall be deemed or construed as creating any relationship between the parties hereto other than the relationship of Lessor and Lessee or Landlord and Tenant.
Governing Law. This Lease shall be governed and construed and enforced in accordance with the laws of the State of Georgia.
Captions. The captions contained in this Lease are included solely for convenience and shall in no event affect or be used in connection with the interpretation of this Lease.
Amendments. This Lease only may be amended or modified as may be agreed upon by written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or payable under this Lease, including all money expended pursuant to the provisions hereof or on account of any
default in the performance and observance of any agreements or covenants herein, shall bear interest at the rate of eight and one-half percent (8.5%) per annum (or at such lesser rate which is the maximum permitted by applicable law) from thirty (30) days after the date such sums become due or payable, or, in the event one of the parties expends money because of a default by the other, from thirty (30) days after the date the defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable attorney's fees to collect any payment or to compel any performance ultimately held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not had dealings with any real estate broker or other person who may claim a commission or finder's fee with respect to this Lease in any manner. Each party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the Indemnified Party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
Notices. Notices given pursuant to this Lease shall be in writing and shall be given by actual delivery or by mailing the same to the party entitled thereto at the addresses set forth below or at any such other address as any Party may designate in writing to any other Party pursuant to the provisions of this paragraph. Notice given by mail shall be sent by United States mail, certified or registered, return receipt requested or by nationally recognized courier serviced providing receipt of delivery. Notices shall be deemed to be received on the date of actual receipt, in the case of personal delivery, or on the date of mailing, in the case of mailing. Notices shall be served or mailed to the following addresses, subject to change as provided above:
If to the Lessor: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
|
Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
If to the Lessee: Beasley Broadcasting of Augusta, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
President
Phone: (941) 263-5000
|
Fax: (941) 434-8950
Waiver. It is agreed that the waiving of any of the covenants of this Lease by either party shall be limited to the particular instance, and shall not be deemed to waive any other breaches of such covenant or any provision herein contained.
Accord and Satisfaction. No receipt of money by Lessor after the termination of this Lease or after the service of any notice or after the commencement of any suit reinstates, continues, or extends the term of this Lease or affects any such notice or suit.
Limitation of Liability. Except as otherwise expressly stated herein, Lessor shall not be liable or responsible to the Lessee or to anyone claiming under or through the Lessee for any loss or damage caused by the acts or omissions of any other tenants or any other users of the Towers, or Tower Sites, or for any loss or damage to Lessee's Property caused by fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials falling from the Towers, or the malfunction of any utility, facility, or installation, or by reason of any other existing condition or defect in the Towers; nor shall Lessor be liable or responsible to the Lessee for any injury or damage suffered by the Lessee and allegedly caused by technical interference with the Lessee's operations, by the activities of any other tenants or users of the Towers and Tower Sites, or any other broadcasters. Except for Lessor's own negligent acts, willful misconduct or for breaches of its obligations under this Agreement, Lessor shall not be liable to
Lessee, or to any other person for property damage or personal injury, including death. Lessor shall not be liable under any circumstances for loss of use, loss of sponsorship or advertising revenue, or any other consequential damages sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or phrase contained in this Lease shall not serve to render the balance of this Lease ineffective or void; and the same shall be construed as if such had not been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary stamps occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such rules and regulations in writing which it may consider necessary and desirable. Lessee agrees to abide by such rules and regulations so long as they do not unreasonably interfere with Lessee's use and occupancy of the Towers or conflict with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or damages to Lessee's Property caused by acts of God, including, but not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for losses or damages to Lessee's Property caused by any person other than employees and agents of Lessor. In the event that Lessor shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of acts of God (including, but not limited to, wind, lightning, rain, ice, earthquake, flood, or rising water), aircraft or vehicle damage or other casualty, unforeseen soil conditions, acts of third parties who are not employees of Lessor, strikes, lock-outs, labor troubles, inability to procure material, failure of power, governmental actions, laws or regulations, riots, insurrection, war, or other reasons beyond its control, then the performance of such act shall be excused for the period of delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay.
Entire Agreement. This Lease, together with its Exhibits, constitutes and sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous offers, negotiations, and agreements (whether oral or written) between the parties (or any of their related entities) concerning the subject matter of this Lease.
Counterparts and Duplicates. This Lease may be executed in counterparts, which, when combined, shall constitute a single instrument. The Lease may also be executed in duplicate editions, each of which shall be effective as an original.
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
BEASLEY FAMILY TOWERS, INC.
_________________________ By: ________________________________ (SEAL)
Witness Name: B. Caroline Beasley
Title: Secretary
|
LESSEE:
BEASLEY BROADCASTING OF AUGUSTA, INC.
_________________________ By: ________________________________ (SEAL)
Witness Name: George G. Beasley
Title: President
|
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$588,817.00 February ___, 2000
BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value received, promises to pay to the order of Beasley Broadcasting of Coastal Carolina, Inc., ("Payee"), the principal amount of FIVE HUNDRED EIGHTY-EIGHT THOUSAND EIGHT HUNDRED SEVENTEEN DOLLARS ($588,817.00), together with accrued interest thereon, calculated and payable as set forth below in this Note. The principal and interest on this Note is payable in lawful money of the United States of America in immediately available funds at such place in the United States as Payee may from time to time designate in writing to Payor.
This Note is made pursuant to that certain Agreement of Sale (the "Sale Agreement"), dated February ____, 2000, by and among Payor and Payee.
(i) Payor may, at its option at any time, without premium or penalty, prepay all or any portion of this Note.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this Note when the same shall become due and payable (whether at maturity or otherwise) and the continuation of such failure for a period of ninety (90) days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or any substantial portion of its property or assets;
(iv) makes a general assignment for the benefit of its creditors; or
(c) an involuntary case or proceeding is commenced against Payor under any Bankruptcy Law and is not dismissed, bonded or discharged within ninety (90) days thereafter, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case or proceeding;
(ii) appoints a Custodian of Payor or for all or substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case the order or decree remains unstayed and in effect for ninety (90) days.
If any Event of Default shall have occurred and be continuing, Payee may proceed to protect and enforce its rights either by suit in equity or by action at law, or both, whether for specific performance of any provision of this Note or in aid of the exercise of any power granted to Payee under this Note.
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.
If to Payor, addressed to:
Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Fax: (941) 434-8950
With a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Attn: Joseph D. Sullivan, Esq.
Fax: (202) 637-2201
If to Payee, addressed to:
Beasley Broadcasting of Augusta
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Fax: (941) 434-8950
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.
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of the date hereinabove first written.
BEASLEY FAMILY TOWERS, INC.
By: ____________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF ASSIGNMENT, BILL OF SALE AND ASSUMPTION AGREEMENT
This Assignment, Bill 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 BEASLEY BROADCASTING OF AUGUSTA, INC. ("Seller") and BEASLEY FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset Purchase Agreement") dated as of February ___, 2000 by and between Seller and Purchaser. Capitalized terms used but not defined herein shall have the meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell, convey and assign to Purchaser all of Seller's right, title and interest to the Towers and Purchaser shall assume the Assumed Liabilities, as defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows (capitalized terms used herein but not defined herein shall have the meaning given to them in the Asset Purchase Agreement):
1. Seller hereby bargains, sells, conveys, assigns and delivers all of Seller's right, title and interest in and to the Towers described in Exhibits A and B of the Asset Purchase Agreement.
2. Purchaser hereby accepts the sale, conveyance and assignment of the Towers, effective as of 12:01 a.m. Eastern Time on February __, 2000.
3. Purchaser hereby assumes and agrees to pay and perform the Assumed Liabilities pursuant to Section 2 of the Asset Purchase Agreement, effective as of 12:01 a.m. Eastern Time on February __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request of the other party, promptly obtain, execute and deliver, or cause to be obtained, executed and delivered, to the other party such assignments, bills of sale, endorsements, and other such instruments or documents to be executed by Seller or Purchaser, as the case may be, in addition to this Agreement, in form and substance reasonably satisfactory to the other party, as such other party may reasonably deem necessary or desirable so as (i) to vest in Purchaser title to and possession of the Towers and (ii) to perfect and record, if necessary, the sale, assignment, conveyance, transfer and delivery to Purchaser of the Towers.
5. This Agreement is made pursuant to, and is subject to all of the terms, representations, warranties and covenants of, the Asset Purchase Agreement, the terms of which are hereby incorporated by reference. In the event of any conflict between this Agreement and the Asset Purchase Agreement, the terms of the Asset Purchase Agreement shall govern.
[Signature page follows]
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this Agreement as of the day and year first written above.
SELLER:
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: ___________________________
Name: George G. Beasley
Title: President
PURCHASER:
BEASLEY FAMILY TOWERS, INC.
By: ___________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF GROUND LEASES
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is entered into as of this _____ day of February, 2000 by and between BEASLEY BROADCASTING OF AUGUSTA, INC. ("Assignor"), and BEASLEY FAMILY TOWERS, INC., ("Assignee").
WHEREAS, Assignor and George G. Beasley ("Beasley"), entered into those certain Lease Agreements, dated _____________, where Beasley leased certain real property to Assignor (such Lease Agreements called herein the "Ground Leases");
WHEREAS, Assignor intends to sell and convey to Assignee certain tower assets used and held for use in the operation of broadcast station WGAC-AM, Augusta, Georgia, pursuant to the terms of that certain Agreement of Sale (the "Purchase Agreement"), dated as of February ___, 2000, by and between Assignor and Assignee;
WHEREAS, in connection with such transaction, Assignor is required to assign to Assignee all of Assignor's right, title and interest, as lessee, in and to the Ground Leases.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
[Signature pages follow]
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the day and year first written above.
[SEAL] ASSIGNOR:
BEASLEY BROADCASTING OF AUGUSTA, INC.
ATTEST: By: __________________________
Name: George G. Beasley
Title: President
____________________________
Name: B. Caroline Beasley
Title: Secretary
|
STATE OF: _________________)
)ss.
COUNTY OF _________________)
This is to certify that on the _____ day of [February, 2000], before me personally appeared George G. Beasley with whom I am personally acquainted, who, being by me duly sworn, says:
That he is President and B. Caroline Beasley is the Secretary of BEASLEY BROADCASTING OF AUGUSTA, INC., the corporation described in and which executed the foregoing instrument; that he knows the common seal of said corporation; that the seal affixed to the foregoing instrument is said common seal, and the name of the corporation was subscribed thereto by the said President, attested by said Secretary, and said common seal was affixed, all by authority duly conferred, and that said instrument is the act and deed of said corporation.
WITNESS, my hand and notarial seal, this ____ day of February, 2000.
NOTARY PUBLIC
My commission expires:
[SEAL] ASSIGNEE:
BEASLEY FAMILY TOWERS, INC.
ATTEST: By: ___________________________
Name: George G. Beasley
Title: Chief Executive Officer
|
STATE OF: _________________)
)ss.
COUNTY OF _________________)
This is to certify that on the _____ day of February, 2000, before me personally appeared George G. Beasley with whom I am personally acquainted, who, being by me duly sworn, says:
That he is Chief Executive Officer and B. Caroline Beasley is the Secretary of BEASLEY 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.
My commission expires:
FORM OF LEASE AGREEMENT
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of February __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between Beasley Broadcasting of Augusta, Inc., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller two (2) communications tower facilities used in the operation of radio broadcast station WGAC-AM (each a "Tower" and collectively, the "Towers") and certain personal property belonging to Seller and associated with the Towers;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The first recital of the Agreement is hereby amended and restated as follows:
WHEREAS, Seller owns two (2) communications towers used in the operation of radio broadcast station WGAC-AM (the "Daytime Tower" and the "Nighttime Tower", and collectively called herein the "Towers"), the Daytime Tower situated on a certain tract of land which Seller leases from a third party (such tract of land called herein the "Daytime Tower Site"), and the Nighttime Tower situated on a certain tract of land which Seller leases from a third party (such tract of land called herein the "Nighttime Tower Site", and together with the Daytime Tower Site, collectively called herein the "Tower Sites"), the Daytime Tower and the Daytime Tower Site are more particularly described on Exhibit A attached hereto and the Nighttime Tower and the Nighttime Tower Site are more particularly described on Exhibit B attached hereto;
The first two (2) Exhibit listings in the Index of Exhibits are amended and restated as follows:
Exhibit A Description of Daytime Tower and Daytime Tower Site
Exhibit B Description of Nighttime Tower and Nighttime Tower Site
2. Exhibit A of the Agreement is hereby amended and restated as shown on Exhibit 1 of this Amendment.
3. Exhibit B of the Agreement is hereby amended and restated as shown on Exhibit 2 of this Amendment.
4. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
5. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF GEORGIA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: _________________________________
Name: George G. Beasley
Title: President
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: _________________________________
Name: B. Caroline Beasley
Title: Secretary
DESCRIPTION OF DAYTIME TOWER AND DAYTIME TOWER SITE
WGAC-AM
That certain Four Hundred Thirty-Five (435) foot radio broadcast tower situated on that tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
DESCRIPTION OF NIGHTTIME TOWER AND NIGHTTIME TOWER SITE
That certain Two Hundred Sixty-Two (262) foot radio broadcast tower situated on that tract of land more particularly described as follows:
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Broadcasting of Augusta, Inc., a Delaware corporation (the "Lessee").
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor two (2) communications tower facilities (each a "Tower" and collectively, the "Towers"), each used in the operation of radio broadcast station WGAC-AM, such Towers used for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Towers obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
7. The first recital of the Lease is amended and restated as follows:
WHEREAS, Lessor owns two (2) communications towers, the first of such towers described on Exhibit A attached hereto (the "Daytime Tower"), and located on a certain tract of real estate located in Augusta, Georgia described in Exhibit B attached hereto (hereinafter referred to as the "Daytime Tower Site"); and the second of such towers described on Exhibit C attached hereto (the "Nighttime Tower" and together with the Daytime Tower, collectively called herein the "Towers"), such Nighttime Tower located on a certain tract of real estate located in North Augusta, South Carolina and described in Exhibit D attached hereto (hereinafter referred to as the "Nighttime Tower Site", and together with the Daytime Tower Site, collectively called herein the "Tower Sites"; the term "Tower Sites" shall also include any appurtenant easements on each of such tracts of land);
8. The second sentence of Section 13.01 of the Lease is hereby deleted.
9. The last sentence of Section 14.01 of the Lease is hereby deleted.
10. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
11. Exhibit A of the Lease is amended and restated as follows:
DESCRIPTION OF DAYTIME TOWER
WGAC-AM
That certain Four Hundred Thirty-Five (435) foot tower situated on a tract of land described on Exhibit B herein.
12. Exhibit B of the Lease is amended and restated as shown on Exhibit 1 to this Amendment.
13. Exhibit C of the Lease is amended and restated as follows:
DESCRIPTION OF NIGHTTIME TOWER
WGAC-AM
That certain Two Hundred Sixty-Two (262) foot tower situated on a tract of land described on Exhibit D herein.
14. Exhibit D of the Lease is amended and restated as shown on Exhibit 2 to this Amendment.
15. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
16. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
17. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF GEORGIA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: ____________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY BROADCASTING OF AUGUSTA, INC.
BY: ____________________________________
Name: George G. Beasley
Title: President
This Agreement of Sale (the "Agreement") is made this ___ day of December, 2000, between Beasley Broadcasting of Augusta, Inc., a Delaware corporation (the "Seller") and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprising one parcel of real property and one (1) communications tower facilities (the "Tower"), located in New Ellanton, SC and used in connection with the operation of radio broadcast station WAJY-FM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the Tower and certain real and personal property belonging to Seller and associated with the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
Seller agrees to sell, transfer, assign, convey and deliver to Buyer and Buyer agrees to purchase and accept from Seller, the following assets upon the terms and conditions contained herein (collectively, the "Assets"):
(a) That certain tract of land, and easements or appurtenances incident to such tract of land, that are associated with the Tower Site (collectively, such land, easements and appurtenances, the "Land"), and the Tower, such Tower and the Land more particularly described in Exhibit A attached hereto and incorporated herein; and
(b) The lease for use of space the Tower located at the Tower Site and certain real property within the Tower Site as more particularly discussed in Section 5(d) of this Agreement.
(a) Upon the terms and subject to the conditions contained herein, Buyer shall assume and become responsible for any and all liabilities and obligations arising out of, or relating to events occurring after 12:01 am Eastern Standard Time on the Closing Date (the "Adjustment Time") under the Tower Lease and with respect to the ownership of the Land and Tower, and the operation of the business relating to the Assets (as defined in Section 5(d) hereof) (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is understood and agreed that all liabilities to third parties relating to the Assets that arise out of any act, event, or transaction of Seller or the ownership of the Assets or the operation of the business relating to
the Assets prior to the Closing Date (the "Retained Liabilities") shall remain the responsibility of Seller. Buyer shall not be required to defend any suit or claim arising out of any Retained Liabilities, and, (subject to Section 13 hereof), Seller shall and hereby agrees to satisfy in due course all such Retained Liabilities, and Seller shall protect and forever hold Buyer harmless from all claims with respect to such Retained Liabilities. It is understood and agreed that all liabilities relating to the Assets that arise out of any act, event, or transaction of Buyer following the Closing Date (the "Assumed Liabilities") shall be the responsibility of Buyer. Seller shall not be required to defend any suit or claim arising out of any Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due course all such Assumed Liabilities, and subject to Section 13 hereof Buyer shall protect and forever hold Seller harmless from all claims with respect to such Assumed Liabilities.
(a) The purchase price for the Assets shall be the amount of One Hundred Fifty One Thousand Two Hundred Fifty Dollars ($151,250.00) (the "Purchase Price"). The Purchase Price shall be adjusted at the Closing by the amount of any prorations derived by operation of Section 6 hereof, and for any other normal income and expense items related to the operation of the Tower Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the Purchase Price, the Assumed Liabilities and other relevant items among the Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"). Buyer and Seller will each report the federal, state, and local and other tax consequences of the purchase and sale contemplated hereby (including the filing of IRS Form 8594) in a manner consistent with such allocation.
(a) The Purchase Price shall be payable at Closing (as defined in Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall deliver to Seller at Closing an unsecured promissory note of Buyer in the aggregate principal amount of One Hundred Fifty One Thousand Two Hundred Fifty Dollars ($151,250.00), substantially in the form of Exhibit B (the "Purchase Note").
(a) Transfer of title to the Land shall be by deed from the Seller to the Buyer (a "Deed"), which Deed shall be in the form of Exhibit C attached hereto and incorporated herein. Transfer of ownership of the Tower and assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be pursuant to the Assignment, Bill of Sale and Assumption Agreement from the Seller to Buyer in the form of Exhibit D attached hereto and incorporated herein (the "Assignment, Bill of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of
all liens, encumbrances other than Permitted Encumbrances, if any; otherwise the
title to the Land shall be good and marketable or such as will be insured by a
reputable title insurance company at regular rates. "Permitted Encumbrances"
shall mean: (i) encumbrances for taxes, assessments, or governmental charges or
levies which are not yet due and payable, or that, subject to adequate security
for payment, are being contested; (ii) existing building restrictions,
ordinances, easements of roads, privileges, or rights of public service
companies or other rights of way, other restrictions or conditions of record, if
any or other encumbrances disclosed in this Agreement (including the Exhibits
attached hereto); (iii) easements, rights of way or other encumbrances that do
not have a material adverse effect on the Assets or the operation of the
business relating to the Assets as currently operated; (iv) encumbrances imposed
by law, such as materialmen's, mechanic's, carrier's, workmen's, or repairmen's
liens or other similar encumbrances attaching in the ordinary course of business
or securing obligations that are not overdue; (v) encumbrances securing
indebtedness, which will be removed prior to or at the Closing; and (vi)
encumbrances pursuant to contracts and leases to be assumed by Buyer pursuant to
Section 2.
(c) As soon as practicable following the Closing, or at such other time as the parties agree, Seller, at its expense, shall obtain and deliver to Buyer a commitment for title insurance (the "Title Commitment") issued by a nationally recognized title company in the ALTA Owner's Form Policy of Title Insurance (each a "Title Policy" and collectively, "Title Policies") covering each tract of Land, setting forth the current status of title thereto, showing all recorded liens, claims, encumbrances, easements, rights-of-way, encroachments, reservations, restrictions and any other matters of public record affecting title to the Land pursuant to which such title company agrees to issue to Buyer the Title Policies. The cost of the Title Policies shall be borne by the Buyer. Seller shall execute such customary documents as the title company reasonably requests, including, but not limited to, an affidavit of debts and liens and customary closing statements.
(d) Buyer and Seller acknowledge that the Tower is occupied by a tenant pursuant to a tower lease between such tenant and the Seller, for space on the Tower, such tower lease made effective prior to the effective date of this Agreement (the "Tower Lease"). Buyer acknowledges receipt of copies of the Tower Lease from Seller. At Closing, Seller will assign all of its right, title, and interest in the Tower Lease to Buyer, and Buyer shall assume the obligations under such Tower Lease, in the Assignment, Bill of Sale and Assumption Agreement. In the event that the Buyer receives after Closing any lease payments from the tenant pursuant to the Tower Lease for rent that accrued prior to Closing, Buyer shall remit such lease payments promptly to Seller. Conversely, in the event Seller receives after Closing any lease payments from the tenant pursuant to the Tower Lease for rent that accrued after Closing, Seller shall remit such lease payments promptly to Buyer.
(a) Current real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principle that all expenses and income arising from the operation of the Assets up through the Adjustment Time shall be for the account of Seller, and all expenses and income arising from the
operation of the business relating to the Assets acquired by Buyer after the Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at
such other time as the parties agree, Buyer shall deliver to Seller a
certificate from Buyer which sets forth as of the Adjustment Time, all
adjustments to be made as provided in Section 6(a) above (the "Buyer's
Certificate"). Buyer shall provide Seller or its representatives access to
copies of such portions of books and records Seller may reasonably request
solely for the purposes of verifying such adjustments. The Buyer's Certificate
shall be final and conclusive unless objected to by Seller in writing within
ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach
agreement as to the amount of the adjustments to be made hereunder within thirty
(30) days after receipt of such written objection, which agreement, if achieved,
shall be binding upon all parties to this Agreement and not subject to dispute
or review.
(c) In the event of a disagreement between Buyer and Seller with respect to the accounting to be made hereunder, the parties agree that a public accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of such disagreement.
(d) Any amounts due for the adjustments provided for herein shall be paid within thirty (30) business days after final determination.
(a) Seller and Buyer shall share equally the costs of preparation of the Deeds, acknowledgement of the Deeds, Federal, state and local revenue stamps, and real estate transfer taxes.
(b) All other costs and expenses incurred by the Parties in this transaction, including, but not limited to attorneys' fees, shall be paid by the party incurring them .
(a) Closing of the transactions contemplated by this Agreement (the "Closing") shall occur at a place and time mutually agreeable to Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned upon (i) all representations and warranties of Buyer being then true and complete in all material respects as if made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date, (ii) all consents of third parties required for Buyer to consummate the transactions contemplated under this Agreement shall have been obtained, (iii) no order, decree or judgment of any court, agency or other governmental authority shall have been issued based on or arising out of the conduct, action, inaction, qualifications or status of Buyer or any of its affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b), and (v) the delivery by Buyer of Buyer's Closing Documents (as defined in
Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned upon
(i) all representations and warranties of Seller being then true and complete in
all material respects as if made on and as of the Closing Date, except to the
extent that any such representation or warranty is made as of a specific date,
in which case such representation or warranty shall have been true and correct
as of such date, (ii) all consents of third parties required for Seller to
consummate the transactions contemplated under this Agreement shall have been
obtained, (iii) no order, decree or judgment of any court, agency or other
governmental authority shall have been issued based on or arising out of the
conduct, action, inaction, qualifications or status of Seller or any of its
affiliates, which would render it unlawful as of the Closing Date to effect that
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.
(a) At Closing, Seller shall execute and/or deliver to Buyer the following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Bill of Sale and Assumption Agreement;
(iii) A certificate from an officer of Seller reasonably acceptable to Buyer confirming the accuracy of the representations and warranties in Section 10 as of the Closing Date;
(iv) Authorizing resolutions or minutes from Seller approving this Agreement and the transactions contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not a "foreign person" (as defined in Section 1445(f)(3) of the Code and the regulations issued thereunder); and
(vi) A lease agreement, by and between Buyer, as lessor, and Seller, as lessee, substantially in the form of Exhibit F (the "Lease Agreement").
(b) At Closing, Buyer shall execute and/or deliver to Seller the following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this Agreement and the transactions contemplated herein; and
(ii) the Assignment, Bill of Sale and Assumption Agreement;
(iii) 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;
(iv) The Purchase Note executed by a duly authorized officer of Buyer; and
(v) A lease agreement, by and between Buyer, as lessor, and Seller, as lessee, substantially in the form of Exhibit F (the "Lease 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.
As a material inducement to Buyer to enter into this Agreement, Seller represents and warrants to Buyer as follows :
(a) Seller has good and marketable title to the Tower and the Land (or such condition of title as will be insured by any reputable title insurance company at their regular rates), and the Assets are free and clear of liens, encumbrances, restrictions and security interests other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and deliver this Agreement and Seller's Closing Documents, and to perform its obligations hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed and delivered, will constitute valid and binding agreements of Seller, enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with, or result in, a breach of the terms of any agreements or instruments to which the Seller is a party or which would result in the creation or imposition of any lien, charge or encumbrance on, or give to others any interest in or right to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all outstanding obligations for utilities and taxes through the Closing Date except for such items as are covered by the proration of items of income and expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with, any person, entity, or authority will be required in connection with the execution and delivery of this Agreement or the transactions contemplated by this Agreement.
(g) Assuming all consents and approvals required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, neither the execution, delivery, and performance of, nor Seller's compliance with, the terms and provisions of this Agreement will conflict with, or result in, a breach of any of the terms, conditions, or provisions of the Articles of Incorporation or Bylaws of Seller, or any judgment, order, injunction, decree, regulation, or ruling of any court or any other governmental authority to which Seller is subject or any material agreement or contract to which Seller is a party or to which it is subject, or constitute a material default thereunder.
(h) Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
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.
All of the provisions of this Agreement and of the Closing Documents
and all of the representations, warranties, considerations, and agreements
contained herein and in the Closing Documents shall survive Closing and continue
in full force and effect for a period of twelve (12) months from the Closing
Date; provided that if a claim for indemnification is made by either party under
Section 13 hereof within such twelve (12) month period, the provisions of
Section 13 shall survive until resolution of such claim. No claim may be
brought under this Agreement unless written notice describing in reasonable
detail the nature of the claim is given on or prior to the last day of the
twelve (12) month period following the Closing Date.
(a) Seller shall indemnify, defend, and hold Buyer, its affiliates, partners, employees, officers, directors, agents, and representatives harmless from and against any and all reasonable losses, costs, expenses, liabilities, penalties, claims, and other damages including, but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or warranties, or the breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Seller of any of its covenants or agreements contained herein or in any Seller's Closing Document;
(iii) the Retained Liabilities;
(iv) any and all losses, liabilities or damages resulting from Sellers' operations or ownership of any Tower Site prior to the Closing Date, including any and all liabilities arising under the Assets which relate to events occurring prior to the Closing Date.
(b) Buyer shall indemnify, defend and hold Seller, its affiliates, employees, officers, directors, agents and representatives harmless from and against any and all losses, costs, expenses, liabilities, penalties, claims, and other damages, including but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigations, reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties, or the breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or agreements contained herein or in any Buyer's Closing Document;
(iii) the Assumed Liabilities;
(iv) any and all losses, liabilities or damages resulting from Buyer's operations or ownership of any Tower Site subsequent to the Closing Date, including any and all liabilities arising under the Assets which related to events occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified Party") becomes aware of circumstances which would entitle such party to indemnification by the other party hereunder (the "Indemnifying Party"), the Indemnified Party shall give the Indemnifying
Party prompt written notice, with reasonable detail, of such claim. Upon receipt of such notice by the Indemnified Party to the Indemnifying Party, the Indemnifying Party shall have the option of defending against such pending litigation through engagement of legal counsel of its choice, provided, however, that the Indemnifying Party's choice of legal counsel must be acceptable to the Indemnified Party in its reasonable discretion. In the event the Indemnifying Party elects to defend, the Indemnifying Party shall keep the Indemnified Party fully informed on a timely basis of the status of the pending litigation. In the event that the Indemnifying Party elects to defend and is unsuccessful in such defense, it shall promptly pay to the Indemnified Party any and all losses, costs, expenses, liabilities, penalties, claims and other damages as described above, including but not limited to, reasonable attorney's fees and other costs and expenses associated with the pending litigation being so defended. In the event the Indemnifying Party elects not to defend and the Indemnified Party defends, but is unsuccessful, then the Indemnifying Party shall promptly pay to the Indemnified Party any and all losses, costs, expenses, liabilities, penalties, claims and other damages, as described above, including, but not limited to, reasonable attorney's fees and other costs and expenses incurred, including reasonable costs of investigation. In the event that Indemnifying Party elects not to defend and the Indemnified Party defends successfully, then the Indemnifying Party shall promptly pay to the Indemnified Party any and all costs and expenses incurred, including, but not limited to, reasonable attorney's fees and other costs and expenses incurred, including reasonable costs of investigation. The Indemnifying Party shall reimburse the Indemnified Party upon demand for any payment made by the Indemnified Party at any time after Closing, based on the final judgement of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands or actions in respect to any damages to which the foregoing indemnification relates.
(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.
(iii) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to Twenty Thousand Dollars
($20,000.00) and Seller shall have no other liability or responsibility for indemnification hereunder.
(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 Twenty Thousand
Dollars ($20,000.00) and Buyer shall have no other
liability or responsibility for Indemnification
hereunder.
(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.
(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).
If Seller fails to perform under this Agreement, the Buyer may exercise any right he has against the Seller, including bringing an action for specific performance. The remedies provided by this Section are in addition to any right or remedies provided elsewhere in this Agreement or at law or in equity. In the event a dispute arises between the Parties over the interpretation of this Agreement, or the performance, alleged non-performance or breach by either Party hereunder, the Parties hereby agree to seek resolution of such dispute in good faith through an alternative dispute resolution process mutually agreeable to the Parties prior to the institution of any legal proceedings related thereto.
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.
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.
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.
This Agreement may not be changed, modified or amended, in whole or in part, except in writing, signed by all parties.
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: Beasley Broadcasting of Augusta, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
Fax: (941) 434-8950
If to the Buyer: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
|
Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
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.
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.
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.
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.
This Agreement is made and shall be governed by and construed in accordance with the internal laws of the State of South Carolina.
The headings and captions in this Agreement are for convenience only and are not part of this Agreement.
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.
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.
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.
Seller shall make all reasonable efforts to resolve any title or restriction issues prior to the Closing, but will continue these efforts subsequent to the Closing to the extent reasonably necessary.
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:
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: _________________________
Name: George G. Beasley
Title: President
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: _________________________
Name: B. Caroline Beasley
Title: Secretary
Exhibit A Description of Land and Tower
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Bill of Sale and
Assumption Agreement
Exhibit E Form of Lease Agreement
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DESCRIPTION OF LAND AND TOWER
WAJY-FM
That certain communications tower situated on that certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
FORM OF PURCHASE NOTE
$51,250.00 December ___, 2000
BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value received, promises to pay to the order BEASLEY BROADCASTING OF AUGUSTA, INC. a Delaware corporation, ("Payee"), the principal amount of ONE HUNDRED FIFTY ONE THOUSAND TWO HUNDRED FIFTY DOLLARS ($151,250.00), 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 December ____, 2000, by and among Payor and Payee.
(i) Payor may, at its option at any time, without premium or penalty, prepay all or any portion of this Note.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this Note when the same shall become due and payable (whether at maturity or otherwise) and the continuation of such failure for a period of ninety (90) days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or any substantial portion of its property or assets;
(iv) makes a general assignment for the benefit of its creditors; or
(c) an involuntary case or proceeding is commenced against Payor under any Bankruptcy Law and is not dismissed, bonded or discharged within ninety (90) days thereafter, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case or proceeding;
(ii) appoints a Custodian of Payor or for all or substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case the order or decree remains unstayed and in effect for ninety (90) days.
(d) The following terms used in this Note have the meanings assigned below:
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.
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.
If to Payor, addressed to:
Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Fax: (941) 434-8950
With a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Attn: Joseph D. Sullivan, Esq.
Fax: (202) 637-2201
If to Payee, addressed to:
Beasley Broadcasting of Augusta, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Fax: (941) 434-8950
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.
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of the date hereinabove first written.
BEASLEY FAMILY TOWERS, INC.
By: _____________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF DEED
FORM OF ASSIGNMENT, BILL OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Bill of Sale and Assumption Agreement (this "Agreement") is made effective as of 12:01 a.m. Eastern Time, on the ____ day of December, 2000 by and between BEASLEY BROADCASTING OF AUGUSTA, INC. ("Seller") and BEASLEY FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset Purchase Agreement") dated as of December ___, 2000 by and between Seller and Purchaser. Capitalized terms used but not defined herein shall have the meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell, convey and assign to Purchaser all of Seller's right, title and interest to the Tower and Tower Leases and Purchaser shall assume the Assumed Liabilities, as defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows (capitalized terms used herein but not defined herein shall have the meaning given to them in the Asset Purchase Agreement):
1. Seller hereby bargains, sells, conveys, assigns and delivers all of Seller's right, title and interest in and to:
a. The Tower described in Exhibit A of the Asset Purchase Agreement; and
b. The Tower Lease.
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 December __, 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 December __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request of the other party, promptly obtain, execute and deliver, or cause to be obtained, executed and delivered, to the other party such assignments, bills of sale, endorsements, and other such instruments or
documents to be executed by Seller or Purchaser, as the case may be, in addition to this Agreement, in form and substance reasonably satisfactory to the other party, as such other party may reasonably deem necessary or desirable so as (i) to vest in Purchaser title to and possession of the 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.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this Agreement as of the day and year first written above.
SELLER:
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: ________________________________
Name: George G. Beasley
Title: President
PURCHASER:
BEASLEY FAMILY TOWERS, INC.
By: ________________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000 by and between BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and BEASLEY BROADCASTING OF AUGUSTA, INC., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower described on Exhibit A attached hereto, (the "Tower"), together with other improvements on a certain tract of real estate located in New Ellanton, South Carolina and described in Exhibit B attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower Site" shall also include any appurtenant
easements or improvements on such land, including, without limitation, any buildings or other structures, but not including that certain transmitter building owned by a tenant of Lessor);
WHEREAS, Lessor desires to lease the Tower Site and space on the Tower for the purpose of Lessee's radio transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and space on the Tower from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants herein contained, the parties hereto agree as follows:
Commencement of Term. The term of this Lease and the payment of rent and other performances in accordance with the terms of this Lease shall commence on the date hereof.
Exhibits. All Exhibits referred to in this Lease are incorporated herein by reference.
Leased Premises. Lessor hereby leases to Lessee, and Lessee leases from Lessor, with a right of access thereto and parking therefor in accordance with Section 9:
Space on the Tower, as more fully described in Exhibit C hereto, for the purpose of the broadcast transmission of WAJY-FM, New Ellanton, South Carolina; and
Space in the transmitter building owned by Lessor and located on the Tower Site, as such space is more fully described in Exhibit D hereto (the "Transmitter Building") for the purposes of the housing, operation and maintenance of Lessee's transmitter and related equipment (such space "Lessee's Building Space");
All of the property leased under this Paragraph 2.01 shall hereinafter be called the "Leased Premises".
Ownership of Property; Access.
Except for "Lessee's Property" (as defined below), all
tenant improvements including all fixtures and trade
fixtures shall become the property of the Lessor, and
shall remain with the Leased Premises after the Lessee
vacates same.
The Lessee's antenna, transmission line, and other equipment, including, without limitation, an electrical power generator, together with any replacements thereof and modifications and additions thereto, which are permitted hereunder, shall be and remain lessee's property, and are hereinafter referred to as "Lessee's Property". Lessee will be solely responsible for the maintenance of Lessee's Property, including all expenses associated with such repair.
Lessee shall have reasonable right of access to the Leased Premises at all times in emergency situations and whenever reasonably necessary for equipment maintenance and repair. Lessee shall also have reasonable rights of access at any time to the Leased Premises for ingress, egress, utilities, the locating and usage of cabling and related equipment, operations, maintenance, repair or remodeling, or other engineering purposes.
By Lessee.
Subject to all appropriate government approvals, including
the Federal Communications Commission ("FCC"), the
Leased Premises may be used only for radio activities
related to the operation of radio broadcast stations.
Such operations, shall be conducted in accordance with
the standards imposed by the FCC and any other
governmental body with authority over such transmission
and operations.
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 reasonably deems necessary to its
operations within Lessee's space in all respects in
compliance with the terms hereof. Lessee's space on the
Tower, Lessee's Building Space, Lessee's interior and
exterior equipment, and all other improvements shall be
maintained in an orderly and professional manner.
By Lessor.
Subject to the rights elsewhere granted to Lessee in this
Lease and with prior notice to Lessee and no loss of
service or interruption (beyond a temporary, non-
recurring and de minimis amount), Lessor reserves the
right to use the 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.
Subject to the rights elsewhere granted to Lessee in this Lease, Lessor shall have the right to use for itself or lease to others the remainder of the Tower Site or use of any of the improvements thereon, space on the Tower or in any building constructed by Lessor for any purpose, including, but not limited to, any kind of broadcasting or communication, simultaneous transmissions on AM, FM, SSB, VBIF, UHF, and/or microwave frequencies, and all rental revenues received therefrom shall belong exclusively to Lessor. Prior to permitting the fastening of a material amount of additional equipment, Lessor shall cause a structural analysis of the Tower to be conducted by a reputable mechanical consultant chosen by Lessor in order to ensure that any such additions conform to recognized engineering standards.
Except as expressly provided for herein, Lessor shall have no liability for any action or omission taken in exercise of its rights hereunder upon reasonable reliance on recommendation of its engineering personnel.
Subject to the terms of this Lease, Lessor also reserves the right to erect one (1) or more additional towers on the Tower Site.
Term. This Lease shall have a term of twenty (20) years from the Commencement Date established in Paragraph 1.01 hereof.
Rental. Lessee shall pay rent for each consecutive twelve-month period beginning on the Commencement Date (each a "Lease Year") during the term of this Lease. Such rental payment shall be payable in equal and successive monthly installments in advance beginning with the Commencement Date and continuing thereafter on the first day of each month during the term of this Lease, such rental payments to be made according to the following schedule:
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Lease Year Rent Per Lease Year Monthly Rent
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1 $13,822.32 $1,151.86
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2 $13,822.32 $1,151.86
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3 $13,822.32 $1,151.86
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4 $13,822.32 $1,151.86
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5 $13,822.32 $1,151.86
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6 $13,822.32 $1,151.86
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7 $13,822.32 $1,151.86
------------------------------------------------------
8 $13,822.32 $1,151.86
------------------------------------------------------
9 $13,822.32 $1,151.86
------------------------------------------------------
10 $13,822.32 $1,151.86
------------------------------------------------------
11 $13,822.32 $1,151.86
------------------------------------------------------
12 $13,822.32 $1,151.86
------------------------------------------------------
13 $13,822.32 $1,151.86
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14 $13,822.32 $1,151.86
------------------------------------------------------
15 $13,822.32 $1,151.86
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16 $13,822.32 $1,151.86
------------------------------------------------------
17 $13,822.32 $1,151.86
------------------------------------------------------
18 $13,822.32 $1,151.86
------------------------------------------------------
19 $13,822.32 $1,151.86
------------------------------------------------------
20 $13,822.32 $1,151.86
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Payment of Rentals. Rentals to be paid hereunder shall be paid monthly in lawful money of the United States of America and shall be paid in advance on the first day of each month during the term of this Lease by the Lessee by crediting the payment owed to Lessee by Lessor under that certain Promissory Note made by Lessor in favor of Lessee dated ________, 2000, on the first day of each month during the term of the Lease. In the event of prepayment of the Promissory Note by Lessor or other action resulting in amounts equal to any monthly rental payment not being concurrently due from Lessor under the Promissory Note, then Lessee shall pay the monthly rental amount in advance on the first day of the month in question by mailing payment to the Lessor c/o Beasley Family Towers, Inc., 3303 Riviera Drive, Suite 200, Naples, FL 34103, Attn: Ms. B. Caroline Beasley, or to such other person or address as Lessor may in writing direct. The payment of the monthly rental for the first month of the term of this Lease shall be prorated based on the number of days remaining in such month, including the first day on which this Lease become effective.
Electricity and Other Utilities. In addition to the payments prescribed under Section 5.01 of this Lease, Lessee shall pay for its own telephone lines and service, electrical service (including electrical service to the 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.
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 Leased Premises, and all other rights and privileges granted herein, without hindrance, eviction, or molestation by Lessor or any party claiming by or through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the full power and authority to enter into and perform this Lease. Any and all necessary corporate resolutions, encumbrance certificates, etc., shall be supplied by Lessee upon the request of Lessor.
Permits. Lessor shall obtain all necessary licenses or permits in connection with the Tower and the Transmitter Building except that Lessee shall obtain, at its own expense, any and all necessary licenses or permits from such governmental authorities as shall have jurisdiction in connection with the (b) the operations, installation, repair, alteration, or replacement of Lessee's equipment (including, without limitation, Lessee's antenna and transmission and/or receiving equipment and generator); or (c) with any of Lessee's activities thereon or contemplated by this Lease. At Lessor's request, Lessee shall furnish Lessor with copies of same, and shall abide by the terms and provisions of such licenses and permits.
During Term of Lease.
Lessee, at its own cost and expense, shall maintain and
repair Lessee's Property, including specifically its
antenna, related equipment, transmission lines,
transmitters, and other equipment. Lessor shall perform
the same tasks with respect to the Tower and
Transmitter Building. All such maintenance shall be
conducted by the parties in accordance with good
engineering standards and in conformity with the
requirements of the FCC or any other body having
jurisdiction over the Lessee and its property,
including, without limitation, any rules, regulations,
or guidelines of the FCC implementing the National
Environmental Policy Act of 1969 pertaining to
electromagnetic or radio frequency radiation. Each of
Lessor and Lessee shall take all reasonable precautions
to avoid interference or hindrance to and with the
operations of the other party hereto. In this regard,
each party hereto agrees to eliminate, without cost to
the other party hereto, any interference or hindrance
to such other party's operation. Maintenance and repair
of Lessee's Property shall be performed only by a
reputable contractor and in accordance with the
provisions of subsections (d), (e), and (f) hereof.
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, the Transmitter Building, and 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 Leased Premises as it deems reasonably necessary, and any amount expended by Lessor therefor shall be reimbursed to it by Lessee immediately upon presentation of a statement and shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing any of Lessee's Property which Lessee has failed to properly maintain.
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, the Transmitter Building, and the Tower Site, or the prevention of interference with Lessor, in violation of the terms of this Agreement, Lessor shall so notify Lessee in writing, specifying the maintenance and repairs required to be performed by Lessee. In the event that, within ten (10) business days following such written notice (or such longer period as may be reasonably necessary taking into account all facts and circumstances), Lessee shall not have performed such maintenance and repairs, Lessor may, at its sole option, make such repairs as it deems reasonably necessary, and any amount expended by Lessor therefor shall be deemed additional rent. Lessor shall not be liable for inconvenience, disturbance, loss of business, or other damage to Lessee by reason of repairing the property and equipment of Lessee which Lessee has failed to properly maintain.
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.
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), in the Transmitter Building, or in or about the Tower Site, Lessee may only employ a contractor who has been approved in writing and in advance by Lessor. Lessor agrees that it will not unreasonably withhold its approval of any contractor who has the requisite experience and industry standard insurance coverage and who will, at the sole option of Lessor, provide a bond to cover any work which it has been retained to perform. Lessor agrees to consult on call in any emergency situation and immediately give its approval or disapproval.
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.
Notwithstanding the receipt of the approvals by Lessor as required in this paragraph, Lessee shall not be relieved of its responsibilities and liabilities for interference or otherwise as herein provided, nor shall said approval be deemed a waiver of any other rights of Lessor under this Lease.
In the event that any notice of lien or lien shall be filed against any part of the Tower 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.
At Expiration or Termination. At the expiration or termination of this Lease, Lessee shall promptly surrender possession of the Leased Premises to Lessor in as good a condition as the same were received at the commencement of the term, reasonable wear and tear and damage by fire or other casualty beyond Lessee's reasonable control excepted.
Use of Common Premises. Lessee, at its own risk, shall have the
right to use in common with Lessor and its licensees, invitees, and other
tenants, and in connection with Lessee's permissible activities and operations
(a) any access road from any public highway to the Tower Site or to any building
on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common
areas in the Transmitter Building (such items (a), (b) and (c) called
collectively herein the "Common Premises").
Maintenance of Common Premises.
Lessor shall maintain the Common Premises and any fence
around the Tower in good repair. Lessee shall comply
with any security policies reasonably established from
time to time by Lessor.
Lessor assumes the obligation and responsibility for
complying with the requirements of the FCC regarding
obstruction,
marking and lighting of the 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.
In the event that Lessor determines that repairs, alterations, or improvements are necessary or desirable to the Tower or any building or structure constructed by Lessor on the Tower Site, any common areas, or the leased spaces of other tenants, Lessor may, upon reasonable notice and for the shortest practical period of time (except for emergency situations), close entrance doors, common areas, drive-ways, rights-of- way, service areas, parking areas, or any other facilities at its discretion without being liable to Lessee; provided that if any of the above would restrict Lessee's ability to broadcast, Lessor shall use reasonable efforts to restrict any closure or interruption pursuant to this Section 9.02 to the hours of 1:00 a.m. to 5:00 a.m.. The closing of entrances, doors, common areas, parking areas, or other facilities for the making of the repairs, alterations, or improvements described herein shall, under no circumstances, constitute an eviction of the Lessee or be grounds for termination of this Lease or the withholding of any rental payments or other payments or performances required to be paid or made by Lessee under the terms hereof, provided, Lessor shall use reasonable efforts to ensure that any action taken in accordance with this paragraph shall not adversely affect the rights of Lessee hereunder. Under no such circumstances shall Lessee be entitled to terminate this Lease nor shall it be entitled to compensation for any loss or damage it may sustain (including loss of use, loss of advertising/sponsorship revenues, and consequential damages) by reason of such changes or alterations.
Alterations.
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.
This Lease is based upon carefully computed tower loading capacity. If any change proposed by Lessee in the type, location, or positioning of Lessee's Property should, in Lessor's judgment, require a computer or other type of feasibility study to determine the loading capacity of the Tower, 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.
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises or on the Tower after the date hereof, notification of the particulars of such proposed installation shall be submitted to Lessor hereto and any other lessees or users of space on the Tower whose names and addresses are supplied to Lessee by Lessor in writing, and the Lessor and such other users will be requested to advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days after receipt of such notification, whether they have any reasonable objections thereto on the grounds that objectionable interference may result; provided, this Section 11.01 shall not apply to any currently installed Lessee's Property or its replacement, maintenance or repair. If the Lessor or any other user shall reasonably object within this period to such plans and Lessee is unwilling to alter its plans to meet the objections, the dispute shall be submitted to an independent professional engineer chosen by Lessor, and such engineers decision shall be final and binding upon all parties. The cost of any such studies shall be borne by Lessee.
Interference with Lessor, Lessee, or Others. Notwithstanding the provisions of Paragraph 11.01, should any change, after the date hereof, in the facilities or mode of operation of Lessee or Lessee's failure to comply with the Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable electrical or physical interference (including interference from any other structure erected on the Tower Site) to the television and/or radio broadcasting and/or receiving operations of any other lessee, then, promptly after written
notification of such interference, the Lessee, at its sole expense, will take such steps as may be reasonably required to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filters or other equipment, provided that, if such interference is caused, after the date hereof, by the failure of the Lessor or any other lessee suffering the interference to comply with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor shall, or shall cause the other lessee suffering the interference, at its sole expense, to comply with such Maintenance Standards. Any dispute as to the cause of interference, or the steps reasonably required to correct it, arising under this Paragraph 11.02, shall be submitted to an independent professional engineer chosen by Lessor, and such engineer's decision shall be final and binding upon the parties. If such interference is found to be caused by such changed facilities or operation, the fees and charges of the engineer to whom the dispute is referred shall be borne by the party whose changed facilities or mode of operations gave rise to the claimed interference. If such interference is found not to be caused by such changed facilities or operations, the fees and charges of the engineer to whom the dispute is referred shall be borne by the objecting party. All other leases and/or agreements to lease space at the Tower Site shall contain this language.
Interference by Other User. Any subsequent agreement under which Lessor allows any other person to occupy any portion of the Tower, Tower Site or any building on the Tower Site 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, Tower Site or any buildings on the Tower Site shall not cause any objectionable interference with the operations of Lessee. Immediately upon notification of such interference by Lessee, Lessor shall at its sole expense take such steps as may be reasonably necessary to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filter or other equipment.
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.
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.
Payment of Taxes. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall pay all personal property or other taxes assessed or
imposed on Lessee's Property, and shall cooperate with Lessor to ensure that
such property is properly separated from that of Lessor or other tenants for
assessment purposes.
Public Liability. Lessee shall procure and maintain comprehensive public liability insurance, naming Lessor as an additional insured as its interests shall appear, covering all of the Lessee's operations and activities on the Leased Premises, including but not limited to, the operations of contractors and subcontractors and the operation of vehicles and equipment (including the 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].
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.
Tower and Transmitter Building Insurance. Lessee shall procure
and maintain physical damage insurance on the Tower and any building on the
Tower Site used or leased by Lessee pursuant to this Lease in an amount
sufficient to repair or replace the Tower and any such building with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse,
explosion, aircraft and vehicle damage, vandalism, and malicious mischief.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per
1.5D of First Amendment to Credit Agreement]. Lessee shall be solely responsible for its insurance on Lessee's Property, together with business interruption insurance.
Tower and/or Transmitter Building Damage. In the event that the Tower and/or the Transmitter Building are destroyed or damaged by fire, lightning, windstorm, flood, earthquake, explosion, collapse, aircraft, or other vehicle damage or other casualty covered by insurance, Lessor shall promptly reconstruct or repair the Tower and/or the Transmitter Building affected to such good condition as existed before the destruction or damage, and give possession to Lessee of substantially the same space leased hereunder. Lessee shall promptly pay over to Lessor any insurance proceeds it receives from insurance policies Lessee is required to procure under Section 14.03 hereof for the purpose of use by Lessor to fund reconstruction of the Tower and/or Transmitter Building as required of Lessor under this Section 14.01. If the Tower and/or the Transmitter Building are in need of such repair or is so damaged by fire, lightning, windstorm, flood, earthquake, explosion, aircraft or other vehicle damage, collapse, or other casualty that reconstruction or repair cannot reasonably be undertaken without dismantling Lessee's antenna, then upon written notice to Lessee, Lessor may remove any such antenna and interrupt the signal activity of Lessee, but will use its best efforts to have the antenna replaced as soon as reasonably possible. Lessor agrees to provide Lessee alternative space, if available, on the Tower and/or in the Transmitter Building during such reconstruction/repair period. If such space is not available, then Lessee shall be responsible for procuring its own alternative space. No monetary or other rental shall be due pursuant to the terms of this Lease for such time as Lessee is unable to conduct its broadcasting activities on the 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 and/or the Transmitter Building or (b) replace the Tower and/or the Transmitter Building within one (1) year if Lessor has provided the notice described in clause (a) above, of the date of destruction, or repair the same within such shorter time period after the casualty as may be reasonable, then Lessee, upon thirty (30) days' written notice to Lessor, may terminate this Lease, provided if Lessor has provided the notice described in clause (a) above, Lessee must make such election within one hundred twenty (120) days prior to the expiration of said repair or replacement period. Lessee agrees that it shall maintain adequate business interruption insurance at all times during the term of this Lease to adequately protect it from any interruption of signal activities due to damage to the Tower and/or Transmitter Building (including costs of reinstallation of its equipment and lines), and Lessor shall have no liability on account of such business interruption or reinstallation costs due to damage or destruction under this paragraph.
In the event that all of the Tower Site (or any portion of the Tower Site necessary for the Tower, guy wires, or other appurtenances necessary to Lessee's broadcasting operations) is acquired or transferred or condemned pursuant to eminent domain proceedings (or the threat thereof), the obligation of the parties under this Lease shall
be terminated as of the date of acquisition or transfer. Lessor shall be entitled to the entire condemnation award. If Lessor determines to build a new tower or a new transmitter building as a replacement for the Tower and/or Transmitter Building on the condemned property, Lessor agrees to lease space to Lessee on the new tower and space in the new building reasonably comparable to the space leased to Lessee pursuant to this Lease and on terms reasonably equivalent to the terms of this Lease.
In the event that this Lease is terminated due to eminent domain proceedings, then Lessee shall be relieved of any further obligations to make any rental payments or performances for any period after the date of such termination of this Lease; and subject to offset or withholding by Lessor to cover any unpaid additional rent or other authorized charges which may be owed through the date of termination, Lessee shall be entitled to a refund of any advance rental sums which it has paid in proportion to the period of the Lease through such date of termination.
Successors. All rights and liabilities herein given to or imposed upon the respective parties hereto shall, to the extent that such are assignable, extend to and bind the several and respective successors and assigns of the parties hereto.
Assignment. Lessee shall not assign, sublet, or transfer this Lease or any interest therein, or permit or allow through any act or default of itself, or of any other person, any transfer thereof by operations of law or otherwise without the prior written consent of Lessor except:
Lessee may assign this Lease to any bona fide third party purchaser of substantially all the assets comprising of Lessee's radio station broadcasting from the Tower Site, who shall execute an assignment and assumption agreement in form reasonably acceptable to Lessor; and
Lessee may assign or transfer all or a portion of the assets of Lessee, including this Lease, to any corporation controlling, controlled by, or under common control with, Lessee.
Any assignment or subletting by Lessee except as permitted herein shall be void and of no effect. Any permitted assignment shall not relieve Lessee of any of its liabilities hereunder. A change in control of Lessee, but not the mortgaging by Lessee of its rights hereunder, shall constitute an assignment of this Lease. Lessor agrees to enter into
documentation reasonably requested by any lender to Lessee in connection with Lessee's mortgaging of its rights hereunder.
Lessor may assign or transfer this Lease without the consent of Lessee, but shall notify Lessee following any transfer or assignment.
Default by Lessee.
If Lessee shall make default in making any payment herein
provided for and any such default shall continue for a
period of ten (10) business days after written notice
to Lessee, or if Lessee shall make default in the
performance of any obligation of Lessee herein (other
than as to payment of money) and any such default shall
continue for a period of thirty (30) days after written
notice to Lessee, or if Lessee shall file a voluntary
petition in bankruptcy, or if Lessee shall file any
petition or institute any proceedings under any
Insolvency or Bankruptcy Act or any amendment thereto
hereafter made, seeking to effect its reorganization or
a composition with its creditors, or if, in any
proceedings based on the insolvency of Lessee or
relating to bankruptcy proceedings, a receiver or
trustee shall be appointed for Lessee or the Leased
Premises, or if any proceedings shall be commenced for
the reorganization of Lessee (which, in the case of
involuntary proceedings, are not dismissed or stayed
within 30 days of the commencement thereof), or if the
leasehold estate created hereby shall be taken on
execution or by any process of law, or if Lessee shall
admit in writing its inability to pay its obligations
generally as they become due, then Lessor may, at its
option, terminate this Lease without notice, and
declare all amounts due or to become due hereunder
immediately due and payable, and Lessor's agents and
servants may immediately, or any time
thereafter, reenter the Leased Premises by reasonably necessary force, summary proceedings, or otherwise, and remove all persons and properly therein, without being liable to indictment, prosecution, or damage therefor, and Lessee hereby expressly waives the service of any notice in writing of intention to reenter said Leased Premises. Lessor may, in addition to any other remedy provided by law or permitted herein, at its option, relet the Leased Premises (or any part thereof) on behalf of Lessee, applying any monies collected first to the payment of expenses of resuming or obtaining possession, and, second, to the payment of the costs of placing the premises in rentable condition, including any leasing commission, and, third, to the payment of rent due hereunder, and any other damages due to the Lessor. Any surplus remaining thereafter shall be paid to Lessee, and Lessee shall remain liable for any deficiency in rental, the amount of which deficiency shall be paid upon demand therefor to Lessor.
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 South Carolina at the time of such disposition.
Each party warrants and represents that it has the authority to enter into this Lease and to grant the rights it grants hereunder, and that performance of its obligations pursuant to this Lease will not violate the rights of any third party whatsoever. Lessee agrees to indemnify and defend Lessor against any claim for damages, losses, liabilities, costs, or expenses, including reasonable attorney's fees, arising (a) out of any breach by Lessee of its warranties, representations, or covenants under this Lease; (b) out of the use, management, or occupancy of the Leased Premises by Lessee, its agents, or invitees; (c) out of any omissions,
negligence or willful misconduct of Lessee, its
agents, servants, employees, licensees, or invitees;
(d) out of failure of Lessee to comply with any
laws, statutes, ordinances, or regulations; (e) out
of Lessee's failure to maintain equipment in proper
working order; and (f) out of Lessee's failure to
comply with any of its other obligations under the
terms of this Lease.
(b) Lessor agrees to indemnify and defend Lessee against any claim for damages, losses, liabilities, costs, or expenses, including reasonable attorney's fees, arising (a) out of any breach by Lessor of its warranties, representations, or covenants under this Lease; (b) out of the use, management, or occupancy of the Leased Premises by Lessor, its agents, or invitees; (c) out of any omissions, negligence or willful misconduct of Lessor, its agents, servants, employees, licensees, or invitees; (d) out of failure of Lessor to comply with any laws, statutes, ordinances, or regulations; (e) out of Lessor's failure to maintain equipment in proper working order; and (f) out of Lessor's failure to comply with any of its other obligations under the terms of this Lease.
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.
Estoppel Certificate. Within ten (10) days after either party's
request, the other party shall deliver, executed in recordable form, a
declaration to any person designated by the requesting party (a) ratifying this
Lease; (b) stating the commencement and termination dates; and (c) certifying
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended (except by such writings as shall be stated);
(ii) that all conditions under this Lease to be performed have been satisfied
(stating exceptions, if any); (iii) that no defenses or offsets against the
enforcement of this Lease by the requesting party exist (or stating those
claimed); (iv) advance rent, if any, paid by Lessee; (v) the date to which rent
has been paid; (vi) the amount of security deposited with Lessor (if hereafter
applicable for any reason); and (vii) such other information as the requesting
party reasonably requires. Persons receiving such statements shall be entitled
to rely upon them.
Attornment. Lessee shall, in the event of a sale or assignment of Lessor's interest in any of the Leased Premises, or, if any of the Leased Premises or any building thereon comes into the hands of any Trustee under a Deed of Trust or a mortgagee or any other person, whether because of a foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person, and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's request any attornment agreement reasonably required by any mortgagee, Trustee, or other such person to be executed containing such provisions as such mortgagee, Trustee, or other person reasonably requires, provided, however, that such attornment shall not modify the terms of this Lease.
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.
Relationship of Parties. Nothing contained herein and no acts of the parties herein shall be deemed or construed as creating any relationship between the parties hereto other than the relationship of Lessor and Lessee or Landlord and Tenant.
Governing Law. This Lease shall be governed and construed and enforced in accordance with the laws of the State of South Carolina.
Captions. The captions contained in this Lease are included solely for convenience and shall in no event affect or be used in connection with the interpretation of this Lease.
Amendments. This Lease only may be amended or modified as may be agreed upon by written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or payable under this Lease, including all money expended pursuant to the provisions hereof or on account of any default in the performance and observance of any agreements or covenants herein, shall bear interest at the rate of eight and one-half percent (8.5%) per annum (or at such lesser rate which is the maximum permitted by applicable law) from thirty (30) days after the date such sums become due or payable, or, in the event one of the parties expends money because of a default by the other, from thirty (30) days after the date the defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable attorney's fees to collect any payment or to compel any performance ultimately held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not had dealings with any real estate broker or other person who may claim a commission or finder's fee with respect to this Lease in any manner. Each party shall hold harmless the other party from all
damages resulting from any claims that may be asserted against the Indemnified Party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
Notices. Notices given pursuant to this Lease shall be in writing and shall be given by actual delivery or by mailing the same to the party entitled thereto at the addresses set forth below or at any such other address as any Party may designate in writing to any other Party pursuant to the provisions of this paragraph. Notice given by mail shall be sent by United States mail, certified or registered, return receipt requested or by nationally recognized courier serviced providing receipt of delivery. Notices shall be deemed to be received on the date of actual receipt, in the case of personal delivery, or on the date of mailing, in the case of mailing. Notices shall be served or mailed to the following addresses, subject to change as provided above:
If to the Lessor: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
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Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
If to the Lessee: Beasley Broadcasting of Augusta, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
|
Fax: (941) 434-8950
Waiver. It is agreed that the waiving of any of the covenants of this Lease by either party shall be limited to the particular instance, and shall not be deemed to waive any other breaches of such covenant or any provision herein contained.
Accord and Satisfaction. No receipt of money by Lessor after the termination of this Lease or after the service of any notice or after the commencement of any suit reinstates, continues, or extends the term of this Lease or affects any such notice or suit.
Limitation of Liability. Except as otherwise expressly stated herein, Lessor shall not be liable or responsible to the Lessee or to anyone claiming under or through the Lessee for any loss or damage caused by the acts or omissions of any other tenants or any other users of the Tower, Transmitter Building, or Tower Site, or for any loss or damage to Lessee's Property caused by fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials falling from the Tower, or the malfunction of any utility, facility, or installation, or by reason of any other existing condition or defect in the Leased Premises; nor shall Lessor be liable or responsible to the Lessee for any injury or damage suffered by the Lessee and allegedly caused by technical interference with the Lessee's operations, by the activities of any other tenants or users of the Tower, Transmitter Building, and Tower Site, or any other broadcasters. Except for Lessor's own negligent acts, willful misconduct or for breaches of its obligations under this Agreement, Lessor shall not be liable to Lessee, or to any other person for property damage or personal injury, including death. Lessor shall not be liable under any circumstances for loss of use, loss of sponsorship or advertising revenue, or any other consequential damages sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or phrase contained in this Lease shall not serve to render the balance of this Lease ineffective or void; and the same shall be construed as if such had not been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary stamps occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such rules and regulations in writing which it may consider necessary and desirable. Lessee agrees to abide by such rules and regulations so long as they do not unreasonably interfere with Lessee's use and occupancy of the Leased Premises or conflict with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or damages to Lessee's Property caused by acts of God, including, but not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for losses or damages to Lessee's Property caused by any person other than employees and agents of Lessor. In the event that Lessor shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of acts of God (including, but not limited to, wind, lightning, rain, ice, earthquake, flood, or rising water), aircraft or vehicle damage or other casualty, unforeseen soil conditions, acts of third parties who are not employees of Lessor, strikes, lock-outs, labor troubles, inability to procure material, failure of power, governmental actions, laws or regulations, riots, insurrection, war, or other
reasons beyond its control, then the performance of such act shall be excused for the period of delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay.
Entire Agreement. This Lease, together with its Exhibits, constitutes and sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous offers, negotiations, and agreements (whether oral or written) between the parties (or any of their related entities) concerning the subject matter of this Lease.
Counterparts and Duplicates. This Lease may be executed in counterparts, which, when combined, shall constitute a single instrument. This Lease may also be executed in duplicate editions, each of which shall be effective as an original.
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
BEASLEY FAMILY TOWERS, INC.
_________________________ By: ____________________________ (SEAL)
Witness Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY BROADCASTING OF AUGUSTA, INC.
_________________________ By: ____________________________ (SEAL)
Witness Name: George G. Beasley
Title: Chief Executive Officer
26
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WAJY-FM
That certain communications tower situated on that certain tract of land described on Exhibit B herein.
DESCRIPTION OF TOWER SITE
WAJY-FM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
[TOWER SPACE DIAGRAM OR DESCRIPTION]
[TRANSMITTER BUILDING SPACE DIAGRAM OR DESCRIPTION]
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of December __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between Beasley Broadcasting of Augusta, Inc., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller one (1) communications tower facility used in the operation of radio broadcast station WAJY-FM (the "Tower") and certain personal property belonging to Seller and associated with the Tower;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. The text of Exhibit A is hereby amended and restated as follows:
That certain three hundred (300) foot radio broadcast tower situated on that tract of land more particularly described as follows:
ALL that certain piece, parcel or tract of land, containing nine (9) acres, more or less, situate, lying and being east of the city of Aiken, in the Community of Montmorenci, Aiken County, South Carolina, shown and designated as Tract 1 and Tract 2 upon plat of said property prepared by Tripp Land Surveying, Inc., under date of February 9, 1995, and recorded February 13, 1995, in Plat Book 33, page 108-2, records of the RMC for Aiken County, South Carolina. Reference is hereby made to said plat for a more complete and accurate description as to metes, bounds and location of said property; said plat is made a part and parcel hereof by this express reference.
TOGETHER with an easement for ingress and egress fifty (50') feet in width running from S.C. Highway S-2-113 along lands now or formerly of Walker Realty to the subject property. Said easement being more fully shown upon plat above referenced. Derivation: Deed Book 1106, at page 120. Tax Parcel No.: 00- 204-01-057.
Such real property shall include the transmitter building located thereon.
2. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
3. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
4. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF SOUTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY BROADCASTING OF AUGUSTA, INC.
By: ______________________________________
Name: George G. Beasley
Title: President
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: ______________________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of December __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Broadcasting of Augusta, Inc., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor antenna space on a three hundred (300) foot communications tower facility (the "Tower"), and space in a transmitter building, each used in the operation of radio broadcast station WAJY-FM, such Tower and transmitter building space used for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Tower and the transmitter building space obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
5. The second sentence of Section 13.01 of the Lease is hereby deleted.
6. The last sentence of Section 14.01 of the Lease is hereby deleted.
7. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
8. The text of Exhibit A is amended and restated as follows:
That certain three hundred (300) foot communications tower situated on that certain tract of land described on Exhibit B herein.
9. The text of Exhibit B is amended and restated as follows:
That certain tract of land more particularly described as follows:
ALL that certain piece, parcel or tract of land, containing nine (9) acres, more or less, situate, lying and being east of the city of Aiken, in the Community of Montmorenci, Aiken County, South Carolina, shown and designated as Tract 1 and Tract 2 upon plat of said property prepared by Tripp Land Surveying, Inc., under date of February 9, 1995, and recorded February 13, 1995, in Plat Book 33, page 108-2, records of the RMC for Aiken County, South Carolina. Reference is hereby made to said plat for a more complete and accurate description as to metes, bounds and location of said property; said plat is made a part and parcel hereof by this express reference.
TOGETHER with an easement for ingress and egress fifty (50') feet in width running from S.C. Highway S-2-113 along lands now or formerly of Walker Realty to the subject property. Said easement being more fully shown upon plat above referenced. Derivation: Deed Book 1106, at page 120. Tax Parcel No.: 00- 204-01-057.
10. The text of Exhibit C of the Lease is amended and restated as follows:
(1) One (1) Stl antenna located two hundred fifty (250) feet from ground level on the Tower.
(2) One (1) side-mounted FM antenna located two hundred ninety
(290) feet from ground level on the Tower.
11. The text of Exhibit D of the Lease is amended and restated as follows:
One (1) shingle roof transmitter building with approximately two
hundred sixty-four (264) square feet of interior space. Lessee maintains a
transmitter inside the transmitter building approximately ten (10) feet north of
the double doors of the transmitter building and the tenant under the Tower
Lease maintains a transmitter inside the transmitter building approximately six
(6) feet north of such double doors.
12. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
13. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
14. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF SOUTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: __________________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY BROADCASTING OF AUGUSTA, INC.
BY: __________________________________________
Name: George G. Beasley
Title: President
This Agreement of Sale (the "Agreement") is made this ___ day of December, 2000, between Beasley FM Acquisition Corp., a Delaware corporation (the "Seller") and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer") (together, the "Parties").
WITNESSETH:
WHEREAS, Seller owns certain real and personal property comprised of one parcel of real property and two (2) communications tower facilities (the "Towers"), located in Atlanta, Georgia used in the operation of radio broadcast stations WAEC-AM and WWWE-AM (the "Tower Site");
WHEREAS, Seller desires to sell and Buyer desires to purchase the Towers and certain real and personal property belonging to Seller and associated with the Tower Site;
NOW, THEREFORE, in consideration of the mutual premises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
Seller agrees to sell, transfer, assign, convey and deliver to Buyer and Buyer agrees to purchase and accept from Seller, the following assets upon the terms and conditions contained herein (collectively, the "Assets"):
(a) Those certain tracts of land, and easements or appurtenances incident to such tracts of land, that are associated with the Tower Site (collectively, such land, easements and appurtenances, the "Land"), and the Towers, such Towers and Land more particularly described in Exhibit A attached hereto.
(b) [The leases for use of space on certain of the Towers located at the Tower Site as more particularly discussed in Section 5(d) of this Agreement.]
(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") with respect to the ownership of the Land and Towers, and the operation of the business relating to the Assets (collectively, the "Assumed Liabilities").
(b) Subject to the provisions of Section 13 hereof, it is understood and agreed that all liabilities to third parties relating to the Assets that arise out of any act, event, or transaction of Seller or the ownership of the Assets or the operation of the business relating to the Assets prior to the Closing Date (the "Retained Liabilities") shall remain the responsibility of Seller. Buyer shall not be required to defend any suit or claim arising out of any Retained
Liabilities, and Seller shall and hereby agrees to satisfy in due course all such Retained Liabilities, and subject to Section 13 hereof Seller shall protect and forever hold Buyer harmless from all claims with respect to such Retained Liabilities. It is understood and agreed that all liabilities relating to the Assets that arise out of any act, event, or transaction of Buyer following the Closing Date (the "Assumed Liabilities") shall be the responsibility of Buyer. Seller shall not be required to defend any suit or claim arising out of any Assumed Liabilities, and Buyer shall and hereby agrees to satisfy in due course all such Assumed Liabilities, and subject to Section 13 hereof Buyer shall protect and forever hold Seller harmless from all claims with respect to such Assumed Liabilities.
(a) The purchase price for the Assets shall be the amount of Four Hundred Forty Eight Thousand Two Hundred Ten Dollars ($448,210.00), (the "Purchase Price"). The Purchase Price shall be adjusted at the Closing by the amount of any prorations derived by operation of Section 6 hereof, and for any other normal income and expense items related to the operation of the Tower Sites as of 12:01 am on the day on which the Closing occurs. The Purchase Price shall be allocated among the Assets in accordance with Section 3(b).
(b) Buyer and Seller agree to allocate the aggregate of the Purchase Price, the Assumed Liabilities and other relevant items among the Assets in accordance with section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"). Buyer and Seller will each report the federal, state, and local and other tax consequences of the purchase and sale contemplated hereby (including the filing of IRS Form 8594) in a manner consistent with such allocation.
(a) The Purchase Price shall be payable at Closing (as defined in
Section 8 below) in the manner set forth in Section 4(b).
(b) As payment of the Purchase Price, Buyer shall deliver to Seller at Closing an unsecured promissory note of Buyer in the aggregate principal amount of Four Hundred Forty Eight Thousand Two Hundred Ten Dollars ($448,210.00), substantially in the form of Exhibit B (the "Purchase Note").
(a) Transfer of title to the Land shall be by deed from the Seller to the Buyer (a "Deed"), which Deed shall be in the form of Exhibit C attached hereto and incorporated herein. Transfer of ownership of the Towers and assumption of the Assumed Liabilities pursuant to Section 2 hereof shall be pursuant to the Assignment, Bill of Sale and Assumption Agreement from the Seller to Buyer in the form of Exhibit D attached hereto and incorporated herein (the "Assignment, Bill of Sale and Assumption Agreement").
(b) The Assets shall be transferred to Buyer free and clear of all liens, encumbrances other than Permitted Encumbrances, if any; otherwise the title to the Land shall be
good and marketable or such as will be insured by a reputable title insurance company at regular rates. "Permitted Encumbrances" shall mean: (i) encumbrances for taxes, assessments, or governmental charges or levies which are not yet due and payable, or that, subject to adequate security for payment, are being contested; (ii) existing building restrictions, ordinances, easements of roads, privileges, or rights of public service companies or other rights of way, other restrictions or conditions of record, if any or other encumbrances disclosed in this Agreement (including the Exhibits attached hereto); (iii) easements, rights of way or other encumbrances that do not have a material adverse effect on the Assets or the operation of the business relating to the Assets as currently operated; (iv) encumbrances imposed by law, such as materialmen's, mechanic's, carrier's, workmen's, or repairmen's liens or other similar encumbrances attaching in the ordinary course of business or securing obligations that are not overdue; (v) encumbrances securing indebtedness, which will be removed prior to or at the Closing; and (vi) encumbrances pursuant to contracts and leases to be assumed by Buyer pursuant to Section 2.
(c) As soon as practicable following the Closing, or at such other time as the parties agree, Seller, at its expense, shall obtain and deliver to Buyer a commitment for title insurance (the "Title Commitment") issued by a nationally recognized title company in the ALTA Owner's Form Policy of Title Insurance (each a "Title Policy" and collectively, "Title Policies") covering each tract of Land, setting forth the current status of title thereto, showing all recorded liens, claims, encumbrances, easements, rights-of-way, encroachments, reservations, restrictions and any other matters of public record affecting title to the Land pursuant to which such title company agrees to issue to Buyer the Title Policies. The cost of the Title Policies shall be borne by the Buyer. Seller shall execute such customary documents as the title company reasonably requests, including, but not limited to, an affidavit of debts and liens and customary closing statements.
(a) Current real estate taxes, rent, utilities and all other normal income and expense items related to the Assets shall be apportioned between the parties to reflect the principle that all expenses and income arising from the operation of the Assets up through the Adjustment Time shall be for the account of Seller, and all expenses and income arising from the operation of the business relating to the Assets acquired by Buyer after the Adjustment Time shall be for the account of Buyer.
(b) As soon as practicable following the Closing Date, or at such other time as the parties agree, Buyer shall deliver to Seller a certificate from Buyer which sets forth as of the Adjustment Time, all adjustments to be made as provided in Section 6(a) above (the "Buyer's Certificate"). Buyer shall provide Seller or its representatives access to copies of such portions of books and records Seller may reasonably request solely for the purposes of verifying such adjustments. The Buyer's Certificate shall be final and conclusive unless objected to by Seller in writing within ninety (90) days after delivery. Buyer and Seller shall attempt jointly to reach agreement as to the amount of the adjustments to be made hereunder within thirty (30) days after receipt of such written objection, which agreement, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or review.
(c) In the event of a disagreement between Buyer and Seller with respect to the accounting to be made hereunder, the parties agree that a public accounting firm chosen jointly by Buyer and Seller shall be the final arbiter of such disagreement.
(d) Any amounts due for the adjustments provided for herein shall be paid within thirty (30) business days after final determination.
(a) Seller shall pay the costs of preparation of the Deed, acknowledgement of the Deed, Federal, state and local revenue stamps, and real estate transfer taxes.
(b) All other costs and expenses incurred by the Parties in this transaction, including, but not limited to attorneys' fees, shall be paid by the party incurring them.
(a) Closing of the transactions contemplated by this Agreement (the "Closing") shall occur at a place and time mutually agreeable to Seller and Buyer (the "Closing Date"). Seller and Buyer shall both make a good faith effort to close under this Agreement promptly.
(b) Seller's obligation to close hereunder shall be conditioned
upon (i) all representations and warranties of Buyer being then true and
complete in all material respects as if made on and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall have been
true and correct as of such date, (ii) all consents of third parties required
for Buyer to consummate the transactions contemplated under this Agreement shall
have been obtained, (iii) no order, decree or judgment of any court, agency or
other governmental authority shall have been issued based on or arising out of
the conduct, action, inaction, qualifications or status of Buyer or any of its
affiliates, which would render it unlawful as of the Closing Date to effect the
transactions contemplated by this Agreement in accordance with its terms, (iv)
the delivery by Buyer of the Purchase Price in the manner set forth in Section
4(b), and (v) the delivery by Buyer of Buyer's Closing Documents (as defined in
Section 9 hereof) on or before the Closing Date.
(c) Buyer's obligation to close hereunder shall be conditioned upon (i) all representations and warranties of Seller being then true and complete in all material respects as if made on and as of the Closing Date, except to the extent that any such representation or warranty is made as of a specific date, in which case such representation or warranty shall have been true and correct as of such date, (ii) all consents of third parties required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, (iii) no order, decree or judgment of any court, agency or other governmental authority shall have been issued based on or arising out of the conduct, action, inaction, qualifications or status of Seller or any of its affiliates, which would render it unlawful as of the Closing Date to effect that
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.
(a) At Closing, Seller shall execute and/or deliver to Buyer the following (collectively "Seller's Closing Documents"):
(i) The Deed;
(ii) The Assignment, Bill of Sale and Assumption Agreement;
(iii) A certificate from an officer of Seller reasonably acceptable to Buyer confirming the accuracy of the representations and warranties in Section 10 as of the Closing Date;
(iv) Authorizing resolutions or minutes from Seller approving this Agreement and the transactions contemplated herein;
(v) A FIRPTA affidavit to the effect that Seller is not a "foreign person" (as defined in Section 1445(f)(3) of the Code and the regulations issued thereunder); and
(vi) Two (2) lease agreements, each lease agreement by and between Buyer, as lessor, and Seller, as lessee, and each lease agreement substantially in the form of Exhibit E (the "Lease Agreements").
(b) At Closing, Buyer shall execute and/or deliver to Seller the following (collectively "Buyer's Closing Documents"):
(i) Authorizing resolutions from Buyer approving this Agreement and the transactions contemplated herein; and
(ii) A certificate from an officer of Buyer reasonably acceptable to Seller confirming the accuracy of the representations and warranties in Section 11 as of the Closing Date;
(iii) The Purchase Note executed by a duly authorized officer of Buyer;
(iv) Two (2) lease agreements, each lease agreement by and between Buyer, as lessor, and Seller, as lessee, and each lease agreement substantially in the form of Exhibit E (the "Lease Agreements"); and
(v) The Assignment, Bill 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.
As a material inducement to Buyer to enter into this Agreement, Seller represents and warrants to Buyer as follows :
(a) Seller has good and marketable title to the Towers and the Land (or such condition of title as will be insured by any reputable title insurance company at their regular rates), and the Assets are free and clear of liens, encumbrances, restrictions and security interests other than Permitted Encumbrances.
(b) Seller has full power and authority to execute and deliver this Agreement and Seller's Closing Documents, and to perform its obligations hereunder and thereunder.
(c) This Agreement and Seller's Closing Documents, when executed and delivered, will constitute valid and binding agreements of Seller, enforceable against Seller in accordance with their terms.
(d) The sale of the Assets shall not materially conflict with, or result in, a breach of the terms of any agreements or instruments to which the Seller is a party or which would result in the creation or imposition of any lien, charge or encumbrance on, or give to others any interest in or right to, any of the Assets.
(e) Seller has paid or will pay, at or prior to Closing, all outstanding obligations for utilities and taxes through the Closing Date except for such items as are covered by the proration of items of income and expense as set forth in Section 6 hereof.
(f) No third-party authorization or approval of, or filing with, any person, entity, or authority will be required in connection with the execution and delivery of this Agreement or the transactions contemplated by this Agreement.
(g) Assuming all consents and approvals required for Seller to consummate the transactions contemplated under this Agreement shall have been obtained, neither the execution, delivery, and performance of, nor Seller's compliance with, the terms and provisions of this Agreement will conflict with, or result in, a breach of any of the terms, conditions, or provisions of the Articles of Incorporation or Bylaws of Seller, or any judgment, order, injunction, decree, regulation, or ruling of any court or any other governmental authority to which Seller is subject or any material agreement or contract to which Seller is a party or to which it is subject, or constitute a material default thereunder.
(h) Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
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.
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.
(a) For a period of one (1) year from the date of this Agreement, Seller shall indemnify, defend, and hold Buyer, its affiliates, partners, employees, officers, directors, agents, and representatives harmless from and against any and all reasonable losses, costs, expenses, liabilities, penalties, claims, and other damages including, but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigation, reasonably incurred and resulting from:
(i) any breach of Seller's representations or warranties, or the breach of any other provision contained in this Agreement;
(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 the Tower Site prior to the Closing Date, including any and all liabilities arising under the Assets which relate to events occurring prior to the Closing Date.
(b) For a period of one (1) year from the date of this Agreement, Buyer shall indemnify, defend and hold Seller, its affiliates, employees, officers, directors, agents and representatives harmless from and against any and all losses, costs, expenses, liabilities, penalties, claims, and other damages, including but not limited to, reasonable attorney's fees and other costs and expenses, including reasonable costs of investigations, reasonably incurred and resulting from:
(i) any breach of Buyer's representations or warranties, or the breach of any other provision contained in this Agreement;
(ii) nonfulfillment by Buyer of any of its covenants or agreements contained herein or in any Buyer's Closing Document;
(iii) the Assumed Liabilities;
(iv) any and all losses, liabilities or damages resulting from Buyer's operations or ownership of the Tower Site subsequent to the Closing Date, including any and all liabilities arising under the Assets which related to events occurring subsequent to the Closing Date.
(c) In the event either Buyer or Seller (the "Indemnified Party") becomes aware of circumstances which would entitle such party to indemnification by the other party hereunder (the "Indemnifying Party"), the Indemnified Party shall give the Indemnifying Party prompt written notice, with reasonable detail, of such claim. Upon receipt of such notice by the Indemnified Party to the Indemnifying Party, the Indemnifying Party shall have the option of defending against such pending litigation through engagement of legal counsel of its choice, provided, however, that the Indemnifying Party's choice of legal counsel must be acceptable to the Indemnified Party in its reasonable discretion. In the event the Indemnifying Party elects to defend, the Indemnifying Party shall keep the Indemnified Party fully informed on a timely basis of the status of the pending litigation. In the event that the Indemnifying Party elects to defend
and is unsuccessful in such defense, it shall promptly pay to the Indemnified Party any and all losses, costs, expenses, liabilities, penalties, claims and other damages as described above, 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.
(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) Seller shall not be required to make any indemnification under clause of Section 13(a) until the aggregate amount of Losses resulting from or arising out of the matters referred to in Section 13(a)(i) exceeds Ten Thousand Dollars ($10,000.00); provided that if the aggregate amount of such Losses exceeds such amount, Seller shall be required to indemnify Buyer for all Losses indemnifiable under Section 13(a)(i) without regard to such Ten Thousand Dollar ($10,000.00) limitation.
(iv) Any amounts owed to Buyer by Seller pursuant to this
Section 13 shall be limited to fifty Thousand Dollars
($ 50,000.00) and Seller shall have no other liability
or responsibility for indemnification hereunder.
(i) The amount of any Losses incurred by Seller shall be reduced by (A) the amount Seller recovers (after deducting all attorneys' fees, expenses and other out- of-pocket costs of recovery) from any insurer or other party liable for such Losses, and Seller shall use commercially reasonable efforts to effect any such recovery and (B) any tax benefit realized by Buyer or its owners as a result of any such Loss.
(ii) Seller shall be entitled to indemnification only for Losses as to which Seller has given Buyer a Notice of Claim on or prior to the first anniversary of the Closing Date.
(iii) Buyer shall not be required to make any indemnification under clause (i) of Section 13(b) until the aggregate amount of Losses resulting from or arising out of the matters referred to in Section 13(b)(i) exceeds Ten Thousand Dollars ($10,000.00); provided that if the aggregate amount of such Losses exceeds such amount, Buyer shall be required to indemnify Seller for all Losses indemnifiable under Section 13(b)(i) without regard to such Ten Thousand Dollar ($10,000.00) limitation.
(iv) 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.
(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.
(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).
If Seller fails to perform under this Agreement, the Buyer may exercise any right he has against the Seller, including bringing an action for specific performance. The remedies provided by this Section are in addition to any right or remedies provided elsewhere in this Agreement or at law or in equity. In the event a dispute arises between the Parties over the interpretation of this Agreement, or the performance, alleged non-performance or breach by either Party hereunder, the Parties hereby agree to seek resolution of such dispute in good faith through an alternative dispute resolution process mutually agreeable to the Parties prior to the institution of any legal proceedings related thereto.
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.
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.
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.
This Agreement may not be changed, modified or amended, in whole or in part, except in writing, signed by all parties.
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: Beasley FM Acquisition Corp.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
Fax: (941) 434-8950
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If to the Buyer: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
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Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
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.
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.
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.
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.
This Agreement is made and shall be governed by and construed in accordance with the internal laws of the State of Georgia.
The headings and captions in this Agreement are for convenience only and are not part of this Agreement.
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.
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.
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.
Seller shall make all commercially reasonable efforts to resolve any title or restriction issues prior to the Closing, but will continue these efforts subsequent to the Closing to the extent reasonably necessary.
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:
BEASLEY FM ACQUISITION CORP.
By: __________________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: __________________________________________
Name: B. Caroline Beasley
Title: Secretary
Exhibit A Description of Land and Towers
Exhibit B Form of Purchase Note
Exhibit C Form of Deed
Exhibit D Form of Assignment, Bill of Sale and
Assumption Agreement
Exhibit E Form of Lease Agreements
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DESCRIPTION OF LAND AND TOWERS
WAEC-AM & WWWE-AM
Those two (2) certain two hundred seventy five (275) foot Utility G45 uniform cross-section, series-excited, guyed triangular communications towers, servicing WAEC-AM and WWWE-AM respectively, situated on that certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
FORM OF PURCHASE NOTE
PROMISSORY NOTE
$448,210.00 December ___, 2000
BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Payor"), for value received, promises to pay to the order of BEASLEY FM ACQUISITION CORP., a Delaware corporation, ("Payee"), the principal amount of Four Hundred Forty Eight Thousand Two Hundred Ten Dollars ($448,210.00), 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 [December] ____, 2000, by and among Payor and Payee.
(a) Payor may, at its option at any time, without premium or penalty, prepay all or any portion of this Note.
The following shall constitute "Events of Default" under this Note:
(a) Failure by Payor to make any payment required under this Note when the same shall become due and payable (whether at maturity or otherwise) and the continuation of such failure for a period of ninety (90) days; or
(b) Payor pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or any substantial portion of its property or assets;
(iv) makes a general assignment for the benefit of its creditors; or
(c) an involuntary case or proceeding is commenced against Payor under any Bankruptcy Law and is not dismissed, bonded or discharged within ninety (90) days thereafter, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Payor in an involuntary case or proceeding;
(ii) appoints a Custodian of Payor or for all or substantially all of its properties; or
(iii) orders the liquidation of Payor; and in each case the order or decree remains unstayed and in effect for ninety (90) days.
(d) The following terms used in this Note have the meaning, assigned below:
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.
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.
If to Payor, addressed to:
Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Fax: (941) 434-8950
With a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2505
Attn: Joseph D. Sullivan, Esq.
Fax: (202) 637-2201
If to Payee, addressed to:
Beasley FM Acquisition Corp.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Fax: (941) 434-8950
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.
IN WITNESS WHEREOF, Payor has executed and delivered this Note as of the date hereinabove first written.
BEASLEY FAMILY TOWERS, INC.
By: _____________________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF DEED
FORM OF ASSIGNMENT, BILL OF
SALE AND ASSUMPTION AGREEMENT
This Assignment, Bill of Sale and Assumption Agreement (this "Agreement") is made effective as of 12:01 a.m. Eastern Time, on the ____ day of [December,] 2000 by and between BEASLEY FM ACQUISITION CORP. ("Seller") and BEASLEY FAMILY TOWERS, INC. ("Purchaser").
RECITALS
A. Reference is made to that certain Agreement of Sale (the "Asset Purchase Agreement") dated as of [December __,] 2000 by and between Seller and Purchaser. Capitalized terms used but not defined herein shall have the meanings given such terms in the Asset Purchase Agreement.
B. The Asset Purchase Agreement provides that Seller shall sell, convey and assign to Purchaser all of Seller's right, title and interest to the Towers and Tower Leases and Purchaser shall assume the Assumed Liabilities, as defined in Section 2 of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows (capitalized terms used herein but not defined herein shall have the meaning given to them in the Asset Purchase Agreement):
1. Seller hereby bargains, sells, conveys, assigns and delivers all of Seller's right, title and interest in and to the Towers described in Exhibit A of the Asset Purchase Agreement.
Item a. above is 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 [December] __, 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 [December] __, 2000.
4. After the date hereof, Purchaser and Seller will, at the request of the other party, promptly obtain, execute and deliver, or cause to be obtained, executed and delivered, to the other party such assignments, bills of sale, endorsements, and other such instruments or documents to be executed by Seller or Purchaser, as the case may be, in addition to this Agreement, in form and substance reasonably satisfactory to the other party, as such other party may reasonably deem necessary or desirable so as (i) to vest in Purchaser title to and possession of the 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.
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this Agreement as of the day and year first written above.
SELLER:
BEASLEY FM ACQUISITION CORP.
By: __________________________________
Name: George G. Beasley
Title: Chief Executive Officer
PURCHASER:
BEASLEY FAMILY TOWERS, INC.
By: __________________________________
Name: B. Caroline Beasley
Title: Secretary
FORM OF LEASE AGREEMENTS
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000 by and between BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and BEASLEY FM ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns a communications tower described on Exhibit A attached hereto (the "Towers"), together with other improvements on a certain tract of real estate located in Atlanta, Georgia and described in Exhibit B attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower Site" shall also include any appurtenant easements or improvements on such land, including, without limitation, any buildings or other structures);
WHEREAS, Lessor desires to lease the Tower Site and the Tower for the purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Tower from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants herein contained, the parties hereto agree as follows:
LEASE COMMENCEMENT.
Commencement of Term. The term of this Lease and the payment of rent and other performances in accordance with the terms of this Lease shall commence on the date hereof.
Exhibits. All Exhibits referred to in this Lease are incorporated herein by reference.
DESCRIPTION OF THE LEASEHOLD.
Leased Premises. Lessor hereby leases to Lessee, and Lessee leases from Lessor, with a right of access thereto and parking therefor in accordance with Section 9:
Ownership of Property; Access.
PERMITTED USES.
By Lessee.
By Lessor.
TERM.
Term. This Lease shall have a term of twenty (20) years from the Commencement Date established in Paragraph 1.01 hereof.
RENT.
Rental. Lessee shall pay rent for each consecutive twelve-month period beginning on the Commencement Date (each a "Lease Year") during the term of this Lease. Such rental payment shall be payable in equal and successive monthly installments in advance beginning with the Commencement Date and continuing thereafter on the first day of each month during the term of this Lease, such rental payments to be made to the following schedule:
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Lease Year Rent Per Lease Year Monthly Rent
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1 $__________ $__________
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2 $__________ $__________
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3 $__________ $__________
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4 $__________ $__________
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5 $__________ $__________
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6 $__________ $__________
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7 $__________ $__________
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8 $__________ $__________
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9 $__________ $__________
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10 $__________ $__________
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11 $__________ $__________
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12 $__________ $__________
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13 $__________ $__________
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14 $__________ $__________
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15 $__________ $__________
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16 $__________ $__________
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17 $__________ $__________
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18 $__________ $__________
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19 $__________ $__________
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20 $__________ $__________
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Payment of Rentals. Rentals to be paid hereunder shall be paid monthly in lawful money of the United States of America and shall be paid in advance on the first day of each month during the term of this Lease by crediting the payment owed to Lessee by Lessor under that certain Promissory Note made by Lessor in favor of Lessee dated _______, 2000, on the first day of each month during the term of this Lease. In the event of prepayment of the Promissory Note by Lessor or other action resulting in amounts equal to any monthly rental payment not being concurrently due from Lessor under the Promissory Note, then Lessee shall pay the monthly rental amount in advance on the first day of the month in question by mailing payment to the Lessor c/o Beasley Family Towers, Inc., 3303 Riviera Drive, Suite 200, Naples, FL 34103, Attn: Ms. B. Caroline Beasley, or to such other person or address as Lessor may in writing direct. The payment of the monthly rental for the first month of the term of this Lease shall be prorated based on the number of days remaining in such month, including the first day on which this Lease become effective.
Electricity and Other Utilities. In addition to the payments prescribed under
Section 5.01 of this Lease, Lessee shall pay for its own telephone lines and
service, electrical service (including electrical service to the 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.
AUTHORITY.
Quiet Enjoyment. Lessor represents and warrants that it has the full power and authority to enter into this Lease, and covenants and agrees that Lessee, upon paying the rents described herein and observing and keeping the covenants, agreements, and stipulations of this Lease on Lessee's part to be observed and kept, shall lawfully, peaceably, and quietly hold, occupy, and enjoy the
Leased Premises, and all other rights and privileges granted herein, without hindrance, eviction, or molestation by Lessor or any party claiming by or through Lessor.
Lessee's Approval. Lessee represents and warrants that it has the full power and authority to enter into and perform this Lease. Any and all necessary corporate resolutions, encumbrance certificates, etc., shall be supplied by Lessee upon the request of Lessor.
PERMITS.
Permits. Lessor shall obtain all necessary licenses or permits in connection with the Tower and Transmitter Building except that Lessee shall obtain, at its own expense, any and all necessary licenses or permits from such governmental authorities as shall have jurisdiction in connection with the (b) the operations, installation, repair, alteration, or replacement of Lessee's equipment (including, without limitation, Lessee's antenna and transmission and/or receiving equipment); 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.
MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
During Term of Lease.
At Expiration or Termination. At the expiration or termination of this Lease, Lessee shall promptly surrender possession of the Leased Premises to Lessor in as good a condition as the same were received at the commencement of the term, reasonable wear and tear and damage by fire or other casualty beyond Lessee's reasonable control excepted.
USE AND MAINTENANCE OF COMMON PREMISES.
Use of Common Premises. Lessee, at its own risk, shall have the right to use in common with Lessor and its licensees, invitees, and other tenants, and in connection with Lessee's permissible activities and operations (a) any access road from any public highway to the Tower Site or to any building on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common areas in the building (such items (a), (b) and (c) called collectively herein the "Common Premises").
Maintenance of Common Premises.
ALTERATIONS BY LESSEE.
Alterations.
INTERFERENCE.
Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises or on the Tower after the date hereof, notification of the particulars of such proposed installation shall be submitted to Lessor hereto and any other lessees or users of Tower space whose names and addresses are supplied to Lessee by Lessor in writing, and the Lessor and such other users will be requested to advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days after receipt of such notification, whether they have any reasonable objections thereto on the grounds that objectionable interference may result; provided, this Section 11.01 shall not apply to any currently installed Lessee's Property or its replacement, maintenance or repair. If the Lessor or any other user shall reasonably object within this period to such plans and Lessee is unwilling to alter its plans to meet the objections, the dispute shall be submitted to an independent professional engineer chosen by Lessor, and such engineers decision shall be final and binding upon all parties. The cost of any such studies shall be borne by Lessee.
Interference with Lessor, Lessee, or Others. Notwithstanding the provisions of Paragraph 11.01, should any change, after the date hereof, in the facilities or mode of operation of Lessee or Lessee's failure to comply with the Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable electrical or physical interference (including interference from any other structure erected on the Tower Site) to the television and/or radio broadcasting and/or receiving operations of any other lessee, then, promptly after written notification of such interference, the Lessee, at its sole expense, will take such steps as may be reasonably required to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filters or other equipment, provided that, if such interference
is caused, after the date hereof, by the failure of the Lessor or any other lessee suffering the interference to comply with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor shall, or shall cause the other lessee suffering the interference, at its sole expense, to comply with such Maintenance Standards. Any dispute as to the cause of interference, or the steps reasonably required to correct it, arising under this Paragraph 11.02, shall be submitted to an independent professional engineer chosen by Lessor, and such engineer's decision shall be final and binding upon the parties. If such interference is found to be caused by such changed facilities or operation, the fees and charges of the engineer to whom the dispute is referred shall be borne by the party whose changed facilities or mode of operations gave rise to the claimed interference. If such interference is found not to be caused by such changed facilities or operations, the fees and charges of the engineer to whom the dispute is referred shall be borne by the objecting party. All other leases and/or agreements to lease space at the Tower Site shall contain this language.
Interference by Other User. Any subsequent agreement under which Lessor allows any other person to occupy any portion of the Tower, Tower Site or any building 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, Tower Site [or the Transmitter Building] shall not cause any objectionable interference with the operations of Lessee. Immediately upon notification of such interference by Lessee, Lessor shall at its sole expense take such steps as may be reasonably necessary to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filter or other equipment.
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.
UTILITIES.
Utilities. Subject to the required approvals and cooperation of any governmental authority or public utilities, Lessee shall arrange and be responsible for the installation and provision of
electrical and telephone lines serving Lessee's Property at any building on the Tower 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.
TAXES.
Payment of Taxes. Lessee shall pay all real estate taxes, assessments, or levies assessed or imposed against the Leased Premises. [Foregoing obligation is subject to $200,000 12-month limit when aggregated with other borrowers under Credit Agreement per 1.5D of First Amendment to Credit Agreement] Lessee shall pay all personal property or other taxes assessed or imposed on Lessee's Property, and shall cooperate with Lessor to ensure that such property is properly separated from that of Lessor or other tenants for assessment purposes.
INSURANCE.
Public Liability. Lessee shall procure and maintain comprehensive public liability insurance, naming Lessor as an additional insured as its interests shall appear, covering all of the Lessee's operations and activities on the Leased Premises, including but not limited to, the operations of contractors and subcontractors and the operation of vehicles and equipment (including any elevators in the Tower), 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].
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.
Insurance on the Tower [and Transmitter Building.] Lessee shall procure and maintain physical damage insurance on the Tower and any building on the Tower Site used or leased by Lessee pursuant to this Lease in an amount sufficient to repair or replace the Tower and any such building with such coverage to be on an "All Risks" basis, including, without limitation, coverage for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse, explosion, aircraft and vehicle damage, vandalism, and malicious mischief. [Foregoing obligation is subject to $200,000 12-month limit when aggregated with other borrowers under Credit Agreement per 1.5D of First Amendment to Credit Agreement]. Lessee shall be solely responsible for its insurance on Lessee's Property, together with business interruption insurance.
Tower [and/or Transmitter Building Damage.] In the event that the Tower or the Transmitter Building are destroyed or damaged by fire, lightning, windstorm, flood, earthquake, explosion, collapse, aircraft, or other vehicle damage or other casualty covered by insurance, Lessor shall promptly reconstruct or repair the Tower [and/or the Transmitter Building] to such good condition as existed before the destruction or damage, and give possession to Lessee of substantially the same space leased hereunder. Lessee shall promptly pay over to Lessor any insurance proceeds it receives from insurance policies Lessee is required to procure under Section 14.03 hereof for the purpose of use by Lessor to fund reconstruction of the Tower and/or Transmitter Building as required of Lessor under this Section 14.04. If the Tower or the Transmitter Building are in need of such repair or is so damaged by fire, lightning, windstorm, flood, earthquake, explosion, aircraft or other vehicle damage, collapse, or other casualty that reconstruction or repair cannot reasonably be undertaken without dismantling Lessee's antenna, then upon written notice to Lessee, Lessor may remove any such antenna and interrupt the signal activity of Lessee, but will use its best efforts to have the antenna replaced as soon as reasonably possible. Lessor agrees to provide Lessee an alternative tower or transmitter building if available, during such reconstruction/repair period. If such towers or space in another transmitter building on the Tower Site is not available, then Lessee shall be responsible for procuring its own alternative towers. No monetary or other rental shall be due pursuant to the terms of this Lease for such time as Lessee is unable to conduct its broadcasting activities on the 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 and/or Transmitter Building or (b) replace the Tower [and/or Transmitter Building] within one (1) year if Lessor has provided the notice described in clause (a) above, of the date of destruction, or repair the same within such shorter time period after the casualty as may be reasonable, then Lessee, upon thirty (30) days' written notice to Lessor, may terminate this Lease, provided if Lessor has provided the notice described in clause (a) above, Lessee must make such election within one hundred twenty (120) days prior to the expiration of said repair or replacement period. Lessee agrees that it shall maintain adequate business interruption insurance at all times during the term of this Lease to adequately protect it from any interruption of signal activities due to damage to the Tower (including costs of reinstallation of its equipment and lines), and Lessor shall have no liability on account of such business interruption or reinstallation costs due to damage or destruction under this paragraph.
EMINENT DOMAIN.
SUCCESSORS AND ASSIGNMENT.
Successors. All rights and liabilities herein given to or imposed upon the respective parties hereto shall, to the extent that such are assignable, extend to and bind the several and respective successors and assigns of the parties hereto.
Assignment. Lessee shall not assign, sublet, or transfer this Lease or any interest therein, or permit or allow through any act or default of itself, or of any other person, any transfer thereof by operations of law or otherwise without the prior written consent of Lessor except:
RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the event either party elects to terminate this Lease in accordance with the provisions herein or at the expiration of the term hereof, Lessee or its mortgagee shall have the right to remove Lessee's Property, except any fixtures (it being specifically understood and agreed that Lessee's antenna, transmitters, transmission line, and similar broadcasting equipment shall not be deemed fixtures) on the Leased Premises within thirty (30) days of such termination. Such removal shall be conducted in accordance with Paragraph 8.01 hereof Lessee shall promptly repair any and all damage caused by such removal. Any of Lessee's Property remaining on the Leased Premises after the expiration of the thirty (30) day period shall be deemed to be the property of Lessor, which Lessor may have removed at Lessee's expense.
LESSOR'S PROTECTION.
Default by Lessee.
INDEMNIFICATION.
ESTOPPEL CERTIFICATE AND ATTORNMENT.
Estoppel Certificate. Within ten (10) days after either party's request, the
other party shall deliver, executed in recordable form, a declaration to any
person designated by the requesting party (a) ratifying this Lease; (b) stating
the commencement and termination dates; and (c) certifying (i) that this Lease
is in full force and effect, and has not been assigned, modified, supplemented,
or amended (except by such writings as shall be stated); (ii) that all
conditions under this Lease to be performed have been satisfied (stating
exceptions, if any); (iii) that no defenses or offsets against the enforcement
of this Lease by the requesting party exist (or stating those claimed); (iv)
advance rent, if any, paid by Lessee; (v) the date to which rent has been paid;
(vi) the amount of security deposited with Lessor (if hereafter applicable for
any reason); and (vii) such other information as the requesting party reasonably
requires. Persons receiving such statements shall be entitled to rely upon them.
Attornment. Lessee shall, in the event of a sale or assignment of Lessor's interest in any of the Leased Premises, or, if any of the Leased Premises or any building thereon comes into the hands of any Trustee under a Deed of Trust or a mortgagee or any other person, whether because of a foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person, and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's request any attornment agreement reasonably required by any mortgagee, Trustee, or other such person to be executed containing such provisions as such mortgagee, Trustee, or other person reasonably requires, provided, however, that such attornment shall not modify the terms of this Lease.
Failure to Execute Instruments. Either party's failure, without good and reasonable cause, to execute instruments or certificates provided for in this Paragraph 20, within fifteen (15) days after the receipt by such party of a written request, shall be a default under his Lease.
MISCELLANEOUS.
Relationship of Parties. Nothing contained herein and no acts of the parties herein shall be deemed or construed as creating any relationship between the parties hereto other than the relationship of Lessor and Lessee or Landlord and Tenant.
Governing Law. This Lease shall be governed and construed and enforced in accordance with the laws of the State of Georgia.
Captions. The captions contained in this Lease are included solely for convenience and shall in no event affect or be used in connection with the interpretation of this Lease.
Amendments. This Lease only may be amended or modified as may be agreed upon by written instrument executed by the parties hereto.
Interest and Attorney's Fees. All sums becoming due or payable under this Lease, including all money expended pursuant to the provisions hereof or on account of any default in the performance and observance of any agreements or covenants herein, shall bear interest at the rate of eight and one-half percent (8.5%) per annum (or at such lesser rate which is the maximum permitted by applicable law) from thirty (30) days after the date such sums become due or payable, or, in the event one of the parties expends money because of a default by the other, from thirty (30) days after the date the defaulting party received written notice that such money was expended.
The prevailing party shall be entitled to its reasonable attorney's fees to collect any payment or to compel any performance ultimately held to be due under the provisions of this Lease.
Brokers and Third Parties. Each party represents that it has not had dealings with any real estate broker or other person who may claim a commission or finder's fee with respect to this Lease in any manner. Each party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the Indemnified Party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
Notices. Notices given pursuant to this Lease shall be in writing and shall be given by actual delivery or by mailing the same to the party entitled thereto at the addresses set forth below or at any such other address as any Party may designate in writing to any other Party pursuant to the provisions of this paragraph. Notice given by mail shall be sent by United States mail, certified or registered, return receipt requested or by nationally recognized courier serviced providing receipt of delivery. Notices shall be deemed to be received on the date of actual receipt, in the case of personal delivery, or on the date of mailing, in the case of mailing. Notices shall be served or mailed to the following addresses, subject to change as provided above:
If to the Lessor: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: 941) 263-5000
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Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
If to the Lessee: Beasley FM Acquisition Corp.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
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Fax: (941) 434-8950
Waiver. It is agreed that the waiving of any of the covenants of this Lease by either party shall be limited to the particular instance, and shall not be deemed to waive any other breaches of such covenant or any provision herein contained.
Accord and Satisfaction. No receipt of money by Lessor after the termination of this Lease or after the service of any notice or after the commencement of any suit reinstates, continues, or extends the term of this Lease or affects any such notice or suit.
Limitation of Liability. Except as otherwise expressly stated herein, Lessor shall not be liable or responsible to the Lessee or to anyone claiming under or through the Lessee for any loss or
damage caused by the acts or omissions of any other tenants or any other users of the Tower, Transmitter Building, or Tower Site, or for any loss or damage to Lessee's Property caused by fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials falling from the Tower, or the malfunction of any utility, facility, or installation, or by reason of any other existing condition or defect in the Leased Premises; nor shall Lessor be liable or responsible to the Lessee for any injury or damage suffered by the Lessee and allegedly caused by technical interference with the Lessee's operations, by the activities of any other tenants or users of the Tower, Transmitter Building, and Tower Site, or any other broadcasters. Except for Lessor's own negligent acts, willful misconduct or for breaches of its obligations under this Agreement, Lessor shall not be liable to Lessee, or to any other person for property damage or personal injury, including death. Lessor shall not be liable under any circumstances for loss of use, loss of sponsorship or advertising revenue, or any other consequential damages sustained by Lessee.
Partial Invalidity. The invalidity of any provision, clause, or phrase contained in this Lease shall not serve to render the balance of this Lease ineffective or void; and the same shall be construed as if such had not been herein set forth.
Documentary Stamps. Lessee shall bear the cost of any documentary stamps occasioned by this Lease should it wish to record this Lease.
Rules and Regulations. Lessor may from time to time issue such rules and regulations in writing which it may consider necessary and desirable. Lessee agrees to abide by such rules and regulations so long as they do not unreasonably interfere with Lessee's use and occupancy of the Leased Premises or conflict with this Lease.
Force Majeure. Lessor assumes no responsibility for any losses or damages to Lessee's Property caused by acts of God, including, but not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water, or by aircraft or vehicle damage. Lessor furthermore assumes no responsibility for losses or damages to Lessee's Property caused by any person other than employees and agents of Lessor. In the event that Lessor shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of acts of God (including, but not limited to, wind, lightning, rain, ice, earthquake, flood, or rising water), aircraft or vehicle damage or other casualty, unforeseen soil conditions, acts of third parties who are not employees of Lessor, strikes, lock-outs, labor troubles, inability to procure material, failure of power, governmental actions, laws or regulations, riots, insurrection, war, or other reasons beyond its control, then the performance of such act shall be excused for the period of delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay.
Entire Agreement. This Lease, together with its Exhibits, constitutes and sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous offers, negotiations, and agreements (whether oral or written) between the parties (or any of their related entities) concerning the subject matter of this Lease.
Counterparts and Duplicates. This Lease may be executed in counterparts, which, when combined, shall constitute a single instrument. The Lease may also be executed in duplicate editions, each of which shall be effective as an original.
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
BEASLEY FAMILY TOWERS, INC.
_________________________ By: _____________________________(SEAL)
Witness Name: B. Caroline Beasley
Title: Secretary
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LESSEE:
BEASLEY FM ACQUISITION CORP.
_________________________ By: _____________________________(SEAL)
Witness Name: George G. Beasley
Title: Chief Executive Officer
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DESCRIPTION OF TOWERS
WWWE-AM
One (1) two hundred seventy five (275) foot Utility Gas Uniform cross-section series excited guyed triangular communication tower used in the operation of WWWE-AM situated on that certain tract of land more particularly described on Exhibit B herein.
DESCRIPTION OF TOWER SITE
WWWE-AM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
[TRANSMITTER BUILDING DIAGRAM OR DESCRIPTION]
THIS LEASE AGREEMENT ("Lease"), made this ____ day of December, 2000 by and between BEASLEY FAMILY TOWERS, INC., a Delaware corporation ("Lessor"), and BEASLEY FM ACQUISITION CORP., a Delaware corporation ("Lessee").
WITNESSETH:
WHEREAS, Lessor owns one (1) communications tower described on Exhibit A attached hereto (the "Tower"), together with other improvements on a certain tract of real estate located in Atlanta, Georgia and described on Exhibit B attached hereto (hereinafter referred to as the "Tower Site"; the term "Tower Site" shall also include any appurtenant easements or improvements on such land, including, without limitation, any buildings or other structures);
WHEREAS, Lessor desires to lease the Tower Site and the Tower for the purpose of Lessee's radio broadcast transmission activities; and
WHEREAS, Lessee wishes to lease such Tower Site and Tower from Lessor.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants herein contained, the parties hereto agree as follows:
20. LEASE COMMENCEMENT.
20.01 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.
20.02 Exhibits. All Exhibits referred to in this Lease are incorporated herein by reference.
21. DESCRIPTION OF THE LEASEHOLD.
21.01 Leased Premises. Lessor hereby leases to Lessee, and Lessee leases from Lessor, with a right of access thereto and parking therefor in accordance with Section 9:
21.02 Ownership of Property; Access.
(a) Except for "Lessee's Property" (as defined below), all
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22. PERMITTED USES.
22.01 By Lessee.
22.02 By Lessor.
(a) Subject to the rights elsewhere granted to Lessee in
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23. TERM.
23.01 Term. This Lease shall have a term of twenty (20) years from the Commencement Date established in Paragraph 1.01 hereof.
24. RENT.
24.01 Rental. Lessee shall pay rent for each consecutive twelve-month period beginning on the Commencement Date (each a "Lease Year") during the term of this Lease. Such rental payment shall be payable in equal and successive monthly installments in advance beginning with the Commencement Date and continuing thereafter on the first day of each month during the term of this Lease, such rental payments to be made to the following schedule:
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Lease Year Rent Per Lease Year Monthly Rent
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1 $__________ $__________
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2 $__________ $__________
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3 $__________ $__________
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4 $__________ $__________
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5 $__________ $__________
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6 $__________ $__________
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7 $__________ $__________
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8 $__________ $__________
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9 $__________ $__________
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10 $__________ $__________
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11 $__________ $__________
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12 $__________ $__________
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13 $__________ $__________
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14 $__________ $__________
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15 $__________ $__________
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16 $__________ $__________
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17 $__________ $__________
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18 $__________ $__________
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19 $__________ $__________
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20 $__________ $__________
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24.02 Payment of Rentals. Rentals to be paid hereunder shall be paid monthly in lawful money of the United States of America and shall be paid in advance on the first day of each month during the term of this Lease by crediting the payment owed to Lessee by Lessor under that certain Promissory Note made by Lessor in favor of Lessee dated _______, 2000, on the first day of each month during the term of this Lease. In the event of prepayment of the Promissory Note by Lessor or other action resulting in amounts equal to any monthly rental payment not being concurrently due from Lessor under the Promissory Note, then Lessee shall pay the monthly rental amount in advance on the first day of the month in question by mailing payment to the Lessor c/o Beasley Family Towers, Inc., 3303 Riviera Drive, Suite 200, Naples, FL 34103, Attn: Ms. B. Caroline Beasley, 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.
24.03 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.
25. AUTHORITY.
25.01 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 Leased Premises, and all other rights and privileges granted herein, without hindrance, eviction, or molestation by Lessor or any party claiming by or through Lessor.
25.02 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.
26. PERMITS.
26.01 Permits. Lessor shall obtain all necessary licenses or permits in connection with the Tower and Transmitter Building except that Lessee shall obtain, at its own expense, any and all necessary licenses or permits from such governmental authorities as shall have jurisdiction in connection with the (b) the operations, installation, repair, alteration, or replacement of Lessee's equipment (including, without limitation, Lessee's antenna and transmission and/or receiving equipment); 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.
27. MAINTENANCE OF LEASED PREMISES AND LESSEE'S PROPERTY.
27.01 During Term of Lease.
27.02 At Expiration or Termination. At the expiration or termination of this Lease, Lessee shall promptly surrender possession of the Leased Premises to Lessor in as good a condition as the same were received at the commencement of the term, reasonable wear and tear and damage by fire or other casualty beyond Lessee's reasonable control excepted.
28. USE AND MAINTENANCE OF COMMON PREMISES.
28.01 Use of Common Premises. Lessee, at its own risk, shall have
the right to use in common with Lessor and its licensees, invitees, and other
tenants, and in connection with Lessee's permissible activities and operations
(a) any access road from any public highway to the Tower Site or to any building
on the Tower Site; (b) any parking lot on the Tower Site; and (c) all common
areas in the building (such items (a), (b) and (c) called collectively herein
the "Common Premises").
28.02 Maintenance of Common Premises.
a) Lessor shall maintain the Common Premises and any fence
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29. ALTERATIONS BY LESSEE.
29.01 Alterations.
30. INTERFERENCE.
30.01 Preliminary Steps to Avoid Interference.
Before Lessee shall make any new installation on the Leased Premises or on the Tower after the date hereof, notification of the particulars of such proposed installation shall be submitted to Lessor hereto and any other lessees or users of Tower space whose names and addresses are supplied to Lessee by Lessor in writing, and the Lessor and such other users will be requested to advise, in writing, the Lessee and Lessor, as applicable, within ten (10) days after receipt of such notification, whether they have any reasonable objections thereto on the grounds that objectionable interference may result; provided, this Section 11.01 shall not apply to any currently installed Lessee's Property or its replacement, maintenance or repair. If the Lessor or any other user shall reasonably object within this period to such plans and Lessee is unwilling to alter its plans to meet the objections, the dispute shall be submitted to an independent professional engineer chosen by Lessor, and such engineers decision shall be final and binding upon all parties. The cost of any such studies shall be borne by Lessee.
30.02 Interference with Lessor, Lessee, or Others.
Notwithstanding the provisions of Paragraph 11.01, should any change, after the date hereof, in the facilities or mode of operation of Lessee or Lessee's failure to comply with the Maintenance Standards, as defined in Paragraph 11.04, cause any objectionable electrical or physical interference (including interference from any other structure erected on the Tower Site) to the television and/or radio broadcasting and/or receiving operations of any other lessee, then, promptly after written notification of such interference, the Lessee, at its sole expense, will take such steps as may be reasonably required to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filters or other
equipment, provided that, if such interference is caused, after the date hereof, by the failure of the Lessor or any other lessee suffering the interference to comply with the Maintenance Standards, as defined in Paragraph 11.04, then Lessor shall, or shall cause the other lessee suffering the interference, at its sole expense, to comply with such Maintenance Standards. Any dispute as to the cause of interference, or the steps reasonably required to correct it, arising under this Paragraph 11.02, shall be submitted to an independent professional engineer chosen by Lessor, and such engineer's decision shall be final and binding upon the parties. If such interference is found to be caused by such changed facilities or operation, the fees and charges of the engineer to whom the dispute is referred shall be borne by the party whose changed facilities or mode of operations gave rise to the claimed interference. If such interference is found not to be caused by such changed facilities or operations, the fees and charges of the engineer to whom the dispute is referred shall be borne by the objecting party. All other leases and/or agreements to lease space at the Tower Site shall contain this language.
30.03 Interference by Other User. Any subsequent agreement under which Lessor allows any other person to occupy any portion of the Tower, Tower Site or any building 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, Tower Site or the Transmitter Building shall not cause any objectionable interference with the operations of Lessee. Immediately upon notification of such interference by Lessee, Lessor shall at its sole expense take such steps as may be reasonably necessary to correct such interference, including, but not limited to, changing frequency, ceasing transmission, reducing power, and/or the installation of any filter or other equipment.
30.04 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.
31. UTILITIES.
31.01 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.
32. TAXES.
32.01 Payment of Taxes. Lessee shall pay all real estate taxes,
assessments, or levies assessed or imposed against the Leased Premises.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement] Lessee shall pay all personal property or other taxes assessed or
imposed on Lessee's Property, and shall cooperate with Lessor to ensure that
such property is properly separated from that of Lessor or other tenants for
assessment purposes.
33. INSURANCE.
33.01 Public Liability. Lessee shall procure and maintain comprehensive public liability insurance, naming Lessor as an additional insured as its interests shall appear, covering all of the Lessee's operations and activities on the Leased Premises, including but not limited to, the operations of contractors and subcontractors and the operation of vehicles and equipment (including any elevators in the Tower), 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].
33.02 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.
33.03 Insurance on the Tower and Transmitter Building. Lessee
shall procure and maintain physical damage insurance on the Tower and any
building on the Tower Site used or leased by Lessee pursuant to this Lease in an
amount sufficient to repair or replace the Tower and any such building with such
coverage to be on an "All Risks" basis, including, without limitation, coverage
for the perils of fire, lightning, windstorm, hall, flood, earthquake, collapse,
explosion, aircraft and vehicle damage, vandalism, and malicious mischief.
[Foregoing obligation is subject to $200,000 12-month limit when aggregated with
other borrowers under Credit Agreement per 1.5D of First Amendment to Credit
Agreement]. Lessee shall be solely responsible for its insurance on Lessee's
Property, together with business interruption insurance.
33.04 Tower and/or Transmitter Building Damage. In the event that
the Tower or the Transmitter Building are destroyed or damaged by fire,
lightning, windstorm, flood, earthquake, explosion, collapse, aircraft, or other
vehicle damage or other casualty covered by insurance, Lessor shall promptly
reconstruct or repair the Tower and/or the Transmitter Building to such good
condition as existed before the destruction or damage, and give possession to
Lessee of substantially the same space leased hereunder. Lessee shall promptly
pay over to Lessor any insurance proceeds it receives from insurance policies
Lessee is required to procure under Section 14.03 hereof for the purpose of use
by Lessor to fund reconstruction of the Tower and/or Transmitter Building as
required of Lessor under this Section 14.04. If the Tower or the Transmitter
Building are in need of such repair or are so damaged by fire, lightning,
windstorm, flood, earthquake, explosion, aircraft or other vehicle damage,
collapse, or other casualty that reconstruction or repair cannot reasonably be
undertaken without dismantling Lessee's antenna, then upon written notice to
Lessee, Lessor may remove any such antenna and interrupt the signal activity of
Lessee, but will use its best efforts to have the antenna replaced as soon as
reasonably possible. Lessor agrees to provide Lessee an alternative tower or
transmitter building if available, during such reconstruction/repair period. If
such tower or space in another transmitter building on the Tower Site is not
available, then Lessee shall be responsible for procuring its own alternative
towers or space in a transmitter building. No monetary or other rental shall be
due pursuant to the terms of this Lease for such time as Lessee is unable to
conduct its broadcasting activities on the 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 Towers
and/or Transmitter Building or (b) replace the Tower and/or Transmitter Building
within one (1) year if Lessor has provided the notice described in clause (a)
above, of the date of destruction, or repair the same within such shorter time
period after the casualty as may be reasonable, then Lessee, upon thirty (30)
days' written notice to Lessor, may terminate this Lease, provided if Lessor has
provided the notice described in clause (a) above, Lessee must make such
election within one hundred twenty (120) days prior to the expiration of said
repair or replacement period. Lessee agrees that it shall maintain adequate
business interruption insurance at all times during the term of this Lease to
adequately protect it from any interruption of signal activities due to damage
to the Tower (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.
34. EMINENT DOMAIN.
35. SUCCESSORS AND ASSIGNMENT.
35.01 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.
35.02 Assignment. Lessee shall not assign, sublet, or transfer this Lease or any interest therein, or permit or allow through any act or default of itself, or of any other person, any transfer thereof by operations of law or otherwise without the prior written consent of Lessor except:
36. RIGHT TO REMOVE LESSEE'S PROPERTY IN EVENT OF TERMINATION. In the event either party elects to terminate this Lease in accordance with the provisions herein or at the expiration of the term hereof, Lessee or its mortgagee shall have the right to remove Lessee's Property, except any fixtures (it being specifically understood and agreed that Lessee's antenna, transmitters, transmission line, and similar broadcasting equipment shall not be deemed fixtures) on the Leased Premises within thirty (30) days of such termination. Such removal shall be conducted in accordance with Paragraph 8.01 hereof Lessee shall promptly repair any and all damage caused by such removal. Any of Lessee's Property remaining on the Leased Premises after the expiration of the thirty (30) day period shall be deemed to be the property of Lessor, which Lessor may have removed at Lessee's expense.
37. LESSOR'S PROTECTION.
37.01 Default by Lessee.
38. INDEMNIFICATION.
39. ESTOPPEL CERTIFICATE AND ATTORNMENT.
39.01 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.
39.02 Attornment. Lessee shall, in the event of a sale or assignment of Lessor's interest in any of the Leased Premises, or, if any of the Leased Premises or any building thereon comes into the hands of any Trustee under a Deed of Trust or a mortgagee or any other person, whether because of a foreclosure, exercise of a power of sale under a mortgage or Deed of Trust, or otherwise, attorn to the purchaser or such mortgagee, Trustee, or other person, and recognize the same as Landlord hereunder. Lessee shall execute at Lessor's request any attornment agreement reasonably required by any mortgagee, Trustee, or other such person to be executed containing such provisions as such mortgagee, Trustee, or other person reasonably requires, provided, however, that such attornment shall not modify the terms of this Lease.
39.03 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.
40. MISCELLANEOUS.
40.01 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.
40.02 Governing Law. This Lease shall be governed and construed and enforced in accordance with the laws of the State of Georgia.
40.03 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.
40.04 Amendments. This Lease only may be amended or modified as may be agreed upon by written instrument executed by the parties hereto.
40.05 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.
40.06 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.
40.07 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: Beasley Family Towers, Inc.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Ms. B. Caroline Beasley
Secretary
Phone: (941) 263-5000
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Fax: (941) 434-8950
With a copy (which shall not constitute notice) to:
Joseph D. Sullivan, Esq.
Latham & Watkins
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505
Phone: (202) 637-2200
Fax: (202) 637-2201
If to the Lessee: Beasley FM Acquisition Corp.
3033 Riviera Drive, Suite 200
Naples, FL 34103
Attn: Mr. George G. Beasley
Chief Executive Officer
Phone: (941) 263-5000
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Fax: (941) 434-8950
40.08 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.
40.09 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.
40.10 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, Transmitter Building, or Tower Site, or for any loss or damage to Lessee's Property caused by fire, water, bursting pipes, leaking gas, sewage, steam pipes, drains, ice, or materials falling from the Tower, or the malfunction of any utility, facility, or installation, or by reason of any other existing condition or defect in the Leased Premises; nor shall Lessor be liable or responsible to the Lessee for any injury or damage suffered by the Lessee and allegedly caused by technical interference with the Lessee's operations, by the activities of any other tenants or users of the Tower, Transmitter Building, and Tower Site, or any other broadcasters. Except for Lessor's own negligent acts, willful misconduct or for breaches of its obligations under this Agreement, Lessor shall not be liable to Lessee, or to any other person for property damage or personal injury, including death. Lessor shall not be liable under any circumstances for loss of use, loss of sponsorship or advertising revenue, or any other consequential damages sustained by Lessee.
40.11 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.
40.12 Documentary Stamps. Lessee shall bear the cost of any documentary stamps occasioned by this Lease should it wish to record this Lease.
40.13 Rules and Regulations. Lessor may from time to time issue such rules and regulations in writing which it may consider necessary and desirable. Lessee agrees to abide by such rules and regulations so long as they do not unreasonably interfere with Lessee's use and occupancy of the Leased Premises or conflict with this Lease.
40.14 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.
40.15 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.
40.16 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.
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and seals, as of the day and year first above written.
ATTEST: LESSOR:
BEASLEY FAMILY TOWERS, INC.
_________________________ By: _________________________(SEAL)
Witness Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY FM ACQUISITION CORP.
_________________________ By: _________________________(SEAL)
Witness Name: George G. Beasley
Title: Chief Executive Officer
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DESCRIPTION OF TOWER
WAEC-AM
One (1) two hundred seventy five (275) foot Utility G45 uniform cross-section, series-excited, guyed triangular communication tower with ground system used in the operation of WAEC-AM situated on that certain tract of land more particularly described on Exhibit B herein.
DESCRIPTION OF TOWER SITE
WAEC-AM
That certain tract of land more particularly described as follows:
[INSERT LEGAL DESCRIPTION]
DESCRIPTION OF TRANSMITTER BUILDING
WAEC-AM
One (1) ten (10) foot high concrete block transmitter building with a shingle roof and approximately eight hundred seventy five (875) square feet of interior
space shared by WAEC-AM and WWWE-AM.
This Amendment (this "Amendment"), to that certain Agreement of Sale, by and between the parties hereto, dated as of December __, 2000 (the "Agreement"), is made as of this ___ day of December 2000, by and between Beasley FM Acquisition Corp., a Delaware corporation (the "Seller"), and Beasley Family Towers, Inc., a Delaware corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into the Agreement whereby Buyer purchased from Seller two (2) communications tower facilities used in the operation of radio broadcast stations WAEC-AM and WWWE-AM (each a "Tower" and collectively the "Towers"), and certain personal property belonging to Seller and associated with the Towers;
WHEREAS, Seller and Buyer desire to amend the Agreement in certain respects to clarify the nature of the assets sold pursuant to the Agreement;
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, Buyer and Seller, intending to be legally bound hereby, agree as follows:
1. Section 1(b) of the Agreement is hereby deleted.
2. Exhibit A of the Lease is hereby amended and restated as follows:
All that tract or parcel of land lying and being in land lots 147 and 148 of the 15/th/ District of Dekalb County, Georgia and being more particularly described as follows:
BEGINNING at the intersection of the northwesterly right-of-way of Fayetteville Road (35 feet from center line at the point) with the northeasterly right-of-way of Graham Circle (60' right-of-way); thence north 53 degrees 05. minutes 15 seconds west. 525.92 feet along the northeasterly right-of-way of Graham Circle to a 1/2" rebar found; thence south 34 degrees 26 minutes 07 seconds west. 50.17 feet along the northwesterly right-of-way of Graham Circle to a 1/2" rebar found on the north line of the Atlanta City limits; thence north 53 degrees 05 minutes 15 seconds west. 73.01 feet along the Atlanta City limits to a point on the easterly right-of-way of Interstate Highway 20 (right-of-way varies); thence northeasterly along the easterly right-of-way of Interstate Highway 20 the following courses and distances; north 03 degrees 15 minutes 48 seconds west. 158.30 feet to a concrete monument found; thence north 09 degrees 02 minutes 17 seconds east. 298.92 feet to a point located north 02 degrees 17 minutes 03 seconds east. 4.03 feet from a concrete monument found; thence south 77 degrees 23 minutes 44 seconds east. 17.00 feet to a concrete monument found; thence north 12 degrees 15 minutes 56 seconds east. 102.04 feet to a point located north 46 degrees 50 minutes 30 seconds west. 3.47 feet from a concrete monument found; thence north 33 degrees 43 minutes 41 seconds east. 109.15 feet to a concrete monument found; thence north 10 degrees 15 minutes 15 seconds west. 104.28 feet to a point located south 18 degrees 11 minutes 25 seconds west. 1.06 feet from a concrete monument
found; thence north 01 degrees 44 minutes 47 seconds east. 81.42 feet to a point located south 87 degrees 41 minutes 52 seconds west. 1.40 feet from a concrete monument found; thence north 12 degrees 16 minutes 36 seconds east. 250.90 feet to a 1/2" rebar found; thence leaving the easterly right-of-way of interstate Highway 20 north 89 degrees 10 minutes 48 seconds east. 433.39 feet to a point in the center of Sugar Creek; thence southeasterly along the center of Sugar Creek and following the meandering thereof the following courses and distances; south 06 degrees 11 minutes 21 seconds east. 96.48 feet; thence south 10 degrees 40 minutes 57 seconds east. 52.27 feet; thence south 02 degrees 53 minutes 40 seconds east. 81.07 feet; thence south 10 degrees 44 minutes 19 seconds west. 64.81 feet; thence south 00 degrees 19 minutes 47 seconds east. 48.17 feet; thence south 08 degrees 30 minutes 22 seconds east. 55.24 feet; thence south 04 degrees 06 minutes 11 seconds east. 97.13 feet; thence south 02 degrees 20 minutes 39 seconds east. 66.88 feet; thence south 10 degrees 31 minutes 18 seconds east. 41.73 feet; thence south 15 degrees 48 minutes 56 seconds east. 65.49 feet; thence 00 degrees 17 minutes 37 seconds east. 63.36 feet; thence south 36 degrees 21 minutes 03 seconds east. 26.51 feet; thence south 75 degrees 25 minutes 50 seconds east. 70.07 feet; thence south 69 degrees 17 minutes 22 seconds east. 53.45 feet; thence south 41 degrees 24 minutes 20 seconds east. 80.72 feet to a point at the intersection of the center of Sugar Creek with the northwesterly right-of-way of Fayetteville Road (right-of-way varies); thence leaving the center of Sugar Creek and following the northwesterly right-of-way of Fayetteville Road the following courses and distances; south 41 degrees 25 minutes 01 seconds west. 67.45 feet to a concrete monument found; thence south 47 degrees 41 degrees 41 minutes 07 seconds east. 29.77 feet to a concrete monument found; thence southwesterly along the northwesterly right-of-way of Fayetteville Road and following the curvature thereof for on are distance of 221.72 feet (said are being subtended by a chord of south 36 degrees 28 minutes 57 seconds west. 221.29 feet with radius to the northwest of 1028.36 feet) to the northeasterly right-of-way of Graham Circle and the POINT OF BEGINNING. Said tract containing approximately 17.18 acres.
Such real property shall include the transmitter building thereon.
3. Except as expressly provided herein, the Agreement shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Agreement.
4. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
5. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF GEORGIA.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
SELLER:
BEASLEY FM ACQUISITION CORP.
By: _________________________________
Name: George G. Beasley
Title: Chief Executive Officer
BUYER:
BEASLEY FAMILY TOWERS, INC.
By: _________________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of December __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley FM Acquisition Corp., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor a two hundred seventy-five (275) foot communications tower facility (the "Tower"), and space in a transmitter building, each used in the operation of radio broadcast station WWWE-AM, such Tower and transmitter building space used for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Tower and transmitter building space obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
6. The second sentence of Section 13.01 of the Lease is hereby deleted.
7. The last sentence of Section 14.01 of the Lease is hereby deleted.
8. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
9. Exhibit B of the Lease is amended and restated as follows:
All that tract or parcel of land lying and being in land lots 147 and 148 of the 15/th/ District of Dekalb County, Georgia and being more particularly described as follows:
BEGINNING at the intersection of the northwesterly right-of-way of Fayetteville Road (35 feet from center line at the point) with the northeasterly right-of-way of Graham Circle (60' right-of-way); thence north 53 degrees 05. minutes 15 seconds west. 525.92 feet along the northeasterly right-of-way of Graham Circle to a 1/2" rebar found; thence south 34 degrees 26 minutes 07 seconds west. 50.17 feet along the northwesterly right-of-way of Graham Circle to a 1/2" rebar found on the north line of the Atlanta City limits; thence north 53 degrees 05 minutes 15 seconds west. 73.01 feet along the Atlanta City limits to a point on the easterly right-of-way of Interstate Highway 20 (right-of-way varies); thence northeasterly along the easterly right-of-way of Interstate Highway 20 the following courses and distances; north 03 degrees 15 minutes 48 seconds west. 158.30 feet to a concrete monument found; thence north 09 degrees 02 minutes 17 seconds east. 298.92 feet to a point located north 02 degrees 17 minutes 03 seconds east. 4.03 feet from a concrete monument found; thence south 77 degrees 23 minutes 44 seconds east. 17.00 feet to a concrete monument found; thence north 12 degrees 15 minutes 56 seconds east.
102.04 feet to a point located north 46 degrees 50 minutes 30 seconds west. 3.47 feet from a concrete monument found; thence north 33 degrees 43 minutes 41 seconds east. 109.15 feet to a concrete monument found; thence north 10 degrees 15 minutes 15 seconds west. 104.28 feet to a point located south 18 degrees 11 minutes 25 seconds west. 1.06 feet from a concrete monument found; thence north 01 degrees 44 minutes 47 seconds east. 81.42 feet to a point located south 87 degrees 41 minutes 52 seconds west. 1.40 feet from a concrete monument found; thence north 12 degrees 16 minutes 36 seconds east. 250.90 feet to a 1/2" rebar found; thence leaving the easterly right-of-way of interstate Highway 20 north 89 degrees 10 minutes 48 seconds east. 433.39 feet to a point in the center of Sugar Creek; thence southeasterly along the center of Sugar Creek and following the meandering thereof the following courses and distances; south 06 degrees 11 minutes 21 seconds east. 96.48 feet; thence south 10 degrees 40 minutes 57 seconds east. 52.27 feet; thence south 02 degrees 53 minutes 40 seconds east. 81.07 feet; thence south 10 degrees 44 minutes 19 seconds west. 64.81 feet; thence south 00 degrees 19 minutes 47 seconds east. 48.17 feet; thence south 08 degrees 30 minutes 22 seconds east. 55.24 feet; thence south 04 degrees 06 minutes 11 seconds east. 97.13 feet; thence south 02 degrees 20 minutes 39 seconds east. 66.88 feet; thence south 10 degrees 31 minutes 18 seconds east. 41.73 feet; thence south 15 degrees 48 minutes 56 seconds east. 65.49 feet; thence 00 degrees 17 minutes 37 seconds east. 63.36 feet; thence south 36 degrees 21 minutes 03 seconds east. 26.51 feet; thence south 75 degrees 25 minutes 50 seconds east. 70.07 feet; thence south 69 degrees 17 minutes 22 seconds east. 53.45 feet; thence south 41 degrees 24 minutes 20 seconds east. 80.72 feet to a point at the intersection of the center of Sugar Creek with the northwesterly right-of-way of Fayetteville Road (right-of-way varies); thence leaving the center of Sugar Creek and following the northwesterly right-of-way of Fayetteville Road the following courses and distances; south 41 degrees 25 minutes 01 seconds west. 67.45 feet to a concrete monument found; thence south 47 degrees 41 degrees 41 minutes 07 seconds east. 29.77 feet to a concrete monument found; thence southwesterly along the northwesterly right-of-way of Fayetteville Road and following the curvature thereof for on are distance of 221.72 feet (said are being subtended by a chord of south 36 degrees 28 minutes 57 seconds west. 221.29 feet with radius to the northwest of 1028.36 feet) to the northeasterly right-of-way of Graham Circle and the POINT OF BEGINNING. Said tract containing approximately 17.18 acres.
Such real property shall include the transmitter building thereon.
10. The following sentence is hereby added at the end of the text of Exhibit C of the Lease:
One (1) ten (10) foot high concrete block transmitter building with a shingle roof and approximately eight hundred seventy-five (875) square feet of interior space shared by WWWE-AM and WAEC-AM. The transmitter for WWWE-AM inside the transmitter building is located approximately fifteen (15) feet to the right of the front door of the transmitter building.
11. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
12. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
13. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF GEORGIA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: __________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY FM ACQUISITION CORP.
BY: __________________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of December __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley FM Acquisition Corp., a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor a two hundred seventy-five (275) foot communications tower facility (the "Tower"), and space in a transmitter building, each used in the operation of radio broadcast station WAEC-AM, such Tower and transmitter building space used for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Tower and transmitter building space obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
14. The second sentence of Section 13.01 of the Lease is hereby deleted.
15. The last sentence of Section 14.01 of the Lease is hereby deleted.
16. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
17. Exhibit B of the Lease is amended and restated as follows:
All that tract or parcel of land lying and being in land lots 147 and 148 of the 15/th/ District of Dekalb County, Georgia and being more particularly described as follows:
BEGINNING at the intersection of the northwesterly right-of-way of Fayetteville Road (35 feet from center line at the point) with the northeasterly right-of-way of Graham Circle (60' right-of-way); thence north 53 degrees 05. minutes 15 seconds west. 525.92 feet along the northeasterly right-of-way of Graham Circle to a 1/2" rebar found; thence south 34 degrees 26 minutes 07 seconds west. 50.17 feet along the northwesterly right-of-way of Graham Circle to a 1/2" rebar found on the north line of the Atlanta City limits; thence north 53 degrees 05 minutes 15 seconds west. 73.01 feet along the Atlanta City limits to a point on the easterly right-of-way of Interstate Highway 20 (right- of-way varies); thence northeasterly along the easterly right-of-way of Interstate Highway 20 the following courses and distances; north 03 degrees 15 minutes 48 seconds west. 158.30 feet to a concrete monument found; thence north 09 degrees 02 minutes 17 seconds east. 298.92 feet to a point located north 02 degrees 17 minutes 03 seconds east. 4.03 feet from a concrete monument found; thence south 77 degrees 23 minutes 44 seconds east. 17.00 feet to a concrete monument found; thence north 12 degrees 15 minutes 56 seconds east.
102.04 feet to a point located north 46 degrees 50 minutes 30 seconds west. 3.47 feet from a concrete monument found; thence north 33 degrees 43 minutes 41 seconds east. 109.15 feet to a concrete monument found; thence north 10 degrees 15 minutes 15 seconds west. 104.28 feet to a point located south 18 degrees 11 minutes 25 seconds west. 1.06 feet from a concrete monument found; thence north 01 degrees 44 minutes 47 seconds east. 81.42 feet to a point located south 87 degrees 41 minutes 52 seconds west. 1.40 feet from a concrete monument found; thence north 12 degrees 16 minutes 36 seconds east. 250.90 feet to a 1/2" rebar found; thence leaving the easterly right-of-way of interstate Highway 20 north 89 degrees 10 minutes 48 seconds east. 433.39 feet to a point in the center of Sugar Creek; thence southeasterly along the center of Sugar Creek and following the meandering thereof the following courses and distances; south 06 degrees 11 minutes 21 seconds east. 96.48 feet; thence south 10 degrees 40 minutes 57 seconds east. 52.27 feet; thence south 02 degrees 53 minutes 40 seconds east. 81.07 feet; thence south 10 degrees 44 minutes 19 seconds west. 64.81 feet; thence south 00 degrees 19 minutes 47 seconds east. 48.17 feet; thence south 08 degrees 30 minutes 22 seconds east. 55.24 feet; thence south 04 degrees 06 minutes 11 seconds east. 97.13 feet; thence south 02 degrees 20 minutes 39 seconds east. 66.88 feet; thence south 10 degrees 31 minutes 18 seconds east. 41.73 feet; thence south 15 degrees 48 minutes 56 seconds east. 65.49 feet; thence 00 degrees 17 minutes 37 seconds east. 63.36 feet; thence south 36 degrees 21 minutes 03 seconds east. 26.51 feet; thence south 75 degrees 25 minutes 50 seconds east. 70.07 feet; thence south 69 degrees 17 minutes 22 seconds east. 53.45 feet; thence south 41 degrees 24 minutes 20 seconds east. 80.72 feet to a point at the intersection of the center of Sugar Creek with the northwesterly right-of-way of Fayetteville Road (right-of-way varies); thence leaving the center of Sugar Creek and following the northwesterly right-of-way of Fayetteville Road the following courses and distances; south 41 degrees 25 minutes 01 seconds west. 67.45 feet to a concrete monument found; thence south 47 degrees 41 degrees 41 minutes 07 seconds east. 29.77 feet to a concrete monument found; thence southwesterly along the northwesterly right-of-way of Fayetteville Road and following the curvature thereof for on are distance of 221.72 feet (said are being subtended by a chord of south 36 degrees 28 minutes 57 seconds west. 221.29 feet with radius to the northwest of 1028.36 feet) to the northeasterly right-of-way of Graham Circle and the POINT OF BEGINNING. Said tract containing approximately 17.18 acres.
Such real property shall include the transmitter building thereon.
18. The text of Exhibit C of the Lease is amended and restated as follows:
One (1) ten (10) foot high concrete block transmitter building with a shingle roof and approximately eight hundred seventy-five (875) square feet of interior space shared by WAEC-AM and WWWE-AM. WAEC's main transmitter inside the transmitter building is located approximately ten (10) feet to the right of the front door of the transmitter building. WAEC also maintains an auxiliary transmitter inside the transmitter building approximately fifteen (15) feet directly north of the front door.
19. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
20. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
21. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF GEORGIA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: ___________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY FM ACQUISITION CORP.
BY: ___________________________________
Name: George G. Beasley
Title: Chief Executive Officer
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") dated as of January 31, 2001 (the "Effective Date"), is made by and between Beasley Mezzanine Holdings, LLC, a Delaware limited liability company (together with any successor thereto, the "Company") and Allen Shaw (the "Executive").
WHEREAS, the Company desires to assure itself of the services of the Executive, and the Executive desires to commit himself to serve the Company, on the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and agreements set forth below the parties hereto agree as follows:
(a) "Annual Base Salary" shall have the meaning set forth in Section 4.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" for the Company to terminate the Executive's employment hereunder shall exist upon the Executive's:
(i) substantial failure to perform his material duties hereunder, other than any such failure resulting from the Executive's Disability, after written notice from the Company describing in reasonable detail the failure to perform and thirty-days opportunity for cure;
(ii) violation of a federal, state or local law or regulation or the rules of the Federal Communications Commission that materially, negatively affects the interest, property, operations, business or reputation of the Company;
(iii) conviction or no contest plea to a felony or a crime involving moral turpitude, or Executive's guilty plea to a lesser included offense or crime in exchange for withdrawal of a felony indictment or felony charge by information, whether the charge arises under the laws of the United States or any other state within the United States; or
(iv) theft or embezzlement or attempted theft or embezzlement of money or tangible or intangible assets or property of the Company or its employees or business relations or Executive's fraud or personal dishonesty involving Company assets.
(d) "Company" shall have the meaning set forth in the preamble hereto.
(e) "Compensation Committee" means the compensation committee of the Board.
(f) "Date of Termination" shall mean (i) if the Executive's employment is terminated by his death, the date of his death; and (ii) if the Executive's employment is
terminated pursuant to any of Sections 5(a)(ii) through 5(a)(iv), the date specified in the Notice of Termination.
(g) "Disability" shall be defined as Executive's inability, as determined by the Company's Chief Executive Officer in his reasonable discretion with the advice of physicians or other medical professionals as deemed necessary by the Company's Chief Executive Officer, due to illness, accident, injury, physical or mental incapacity or other disability, effectively to carry out Executive's duties and obligations under this Agreement for more than twelve weeks (whether or not consecutive) during any twelve month period.
(h) "Effective Date" shall have the meaning set forth in the preamble hereto.
(i) "Equity Plan" shall have the meaning set forth in Section 4(c).
(j) "Executive" shall have the meaning set forth in the preamble hereto.
(k) "Extension Terms" shall have the meaning set forth in Section 2(b).
(l) "Initial Term" shall have the meaning set forth in Section 2(a).
(m) "Non-Competition Period" shall have the meaning set forth in
Section 7(a).
(n) "Notice of Termination" shall have the meaning set forth in
Section 5(b).
(o) "Restricted Territory" shall have the meaning set forth in Section 7(a).
(p) "Severance Period" shall have the meaning set forth in Section 6(a)(i).
(q) "Term of Employment" shall have the meaning set forth in Section 2(b).
ending January 31, 2002. On February 1, 2002, and on each anniversary thereof during the Term of Employment, Executive shall be entitled to an increase in Annual Base Salary for the twelve (12) months beginning on such date of Five Percent (5%) above the Annual Base Salary in effect on the day prior to such date. In its sole discretion, the Compensation Committee may review the Executive's Annual Base Salary with a view toward consideration of merit increases as the Compensation Committee deems appropriate. The Annual Base Salary shall be paid, less lawful deductions, in arrears in substantially equal installments at monthly or more frequent intervals, in accordance with the normal payroll practices of the Company. By referring to an "Annual Base Salary," Company is not modifying its termination rights under Section 5 of this Agreement.
and necessarily incurred in the performance of his duties to the Company, in accordance with the Company's documentation and other policies with respect thereto.
(i) The Company shall pay to the Executive separation pay at a gross annualized rate equal to his Annual Base Salary then in effect, in regular installments in accordance with the Company's customary payroll practices during the period commencing on the Date of Termination and continuing for twelve (12) months thereafter (the "Severance Period"). However, the amount due Executive from the Company under this Section 6(a)(i) shall be reduced by the gross wages earned by Employee from alternative employment, and/or the net profit earned by Employee from the operation of a business, during the Severance Period.
(ii) The Company shall, at its own expense, continue the Executive's coverage under all Company benefit plans and programs in which the Executive was participating immediately prior to the Date of Termination, to the extent permitted thereunder until the earlier of (A) the expiration of the Severance Period or (B) the date the Executive has commenced new employment and has thereby become eligible for comparable benefits. In the event that the Executive's participation in any such plan or program is not permitted, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under such plans and programs.
(iii) The Company will agree that, notwithstanding the terms or conditions of the Equity Plan or any stock option or other award agreement between the Company and the Executive, all such stock options or other awards shall become fully vested and exercisable as of the Date of Termination and shall remain exercisable until the earlier to occur of (A) the expiration of such stock option or other award pursuant to its terms or (B) the expiration of 90 days following the Date of Termination.
As a condition to the receipt of any of the severance compensation described in this Section, Executive must sign a comprehensive general release of all known and unknown claims against Company, its employees, shareholders, directors, officers, representatives and corporate affiliates arising from this Agreement or Executive's employment by Company.
Executive acknowledges that he is being provided (i) access to core strategic and competitive information at a very senior level, (ii) industry prominence as a senior executive of the Company, and (iii) very substantial post-employment benefits, and that these valuable assets are conferred upon Executive in the expectation that he will refrain from competing with the
Company in accordance with the following specific terms and conditions. Executive acknowledges that these restrictions may materially restrict his ability to obtain comparable employment in numerous radio markets throughout the United States for a period of time after the termination of his employment hereunder. Nonetheless, Executive agrees that these restrictions are fair and reasonable, limited to only those restrictions necessary to protect the Company from unfair competition, separately bargained-for, and essential to the Company's willingness to enter into this Agreement. The parties acknowledge and agree that if Executive's employment terminates by reason of the expiration and non-renewal of this Agreement, whether at the conclusion of the Initial Term or any Extension Term, then the restrictive covenant obligations set forth in Sections 7(a), (b), and (c) shall not apply, unless the Company exercises its option set forth in Section 7(d).
7(a), (b) and (c) for a period of six (6) months (and twelve (12) months as to
Section 7(c)) after the expiration of the Term of Employment, which option shall
be exercisable by written notice to the Executive delivered thirty (30) days
prior to the expiration of the Term of Employment. If the Company elects to
exercise this option, the Company shall pay to the Executive severance pay at a
gross annualized rate equal to his Annual Base Salary then in effect, in regular
installments in accordance with the Company's customary payroll practices during
the period commencing on the expiration of the Term of Employment and continuing
for six (6) months thereafter.
Company and its counsel the documents and other information sought and shall assist such counsel in resisting or otherwise responding to such process.
It is recognized and acknowledged by the Executive that a breach of the covenants contained in Sections 7 and 8 will cause irreparable damage to Company and its goodwill, the exact amount of which will be difficult or impossible to ascertain, and that the remedies at law for any such breach will be inadequate. Accordingly, the Executive agrees that in the event of a breach or threat of breach of any of the covenants contained in Sections 7 and 8, in addition to any other remedy which may be available at law or in equity, the Company will have the absolute right, without the requirement of posting of bond or other security, to injunctive or other equitable relief and the right to suspend any payments due to Executive under this Agreement. Sections 7 and 8 shall remain effective and shall survive any termination or expiration of this Agreement.
This Agreement shall be binding upon and inure to the benefit of the Company, the Executive and their respective successors, assigns, personnel and legal representatives, executors, administrators, heirs, distributees, devisees, and legatees, as applicable.
This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of New York.
The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
Any notice, request, claim, demand, document and other communication hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in writing and delivered personally or sent by telex, telecopy, or certified or registered mail, postage prepaid, as follows:
(a) If to the Company:
Beasley Mezzanine Holdings, LLC
3033 Riviera Drive, Suite 200
Naples, Florida 34103
Attn: B. Caroline Beasley
Fax: (941) 263-8191
With a copy to:
Latham & Watkins 1001 Pennsylvania Avenue, NW, Suite 1300 Washington, DC 20004 Attn: Joseph D. Sullivan Fax: (202) 637-2201
(b) If to the Executive, to him at the address set forth below under his signature; or at any other address as any party shall have specified by notice in writing to the other parties.
This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement.
The terms of this Agreement are intended by the parties to be final expression of their agreement with respect to the employment of the Executive by the Company and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding to vary the terms of this Agreement.
This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by the Executive and the Chief Financial Officer or the Chief Executive Officer of the Company. By an instrument in writing similarly executed, the Executive or the Company may waive compliance by the other party or parties with any provision of this Agreement that such other party was or is obligated to comply with or perform, provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy, or power hereunder preclude any other or further exercise of any other right, remedy, or power provided herein or by law or in equity.
The parties hereto shall not voluntarily undertake or fail to undertake any action or course of action inconsistent with the provisions or essential intent of this Agreement. Furthermore, it is the intent of the parties hereto to act in a fair and reasonable manner with respect to the interpretation and application of the provisions of this Agreement.
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration, conducted before a panel of three arbitrators in Washington, D.C. in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction; provided, however, that the Company shall be entitled to seek a restraining order or injunction in any court of competent jurisdiction to prevent any continuation of any violation of the provisions of Sections 7 or 8 of this Agreement and the Executive hereby consents that such restraining order or injunction may be granted without the necessity of the Company's posting any bond. The fees and expense of the arbitrator shall be borne equally by the Company and the Executive.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this EXECUTIVE EMPLOYMENT AGREEMENT on the date and year first above written.
BEASLEY MEZZANINE HOLDINGS, LLC
By: ______________________________
Name: B. Caroline Beasley
Title: Secretary
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Broadcasting of Eastern Pennsylvania, a Delaware corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor a communications tower facility (the "Tower"), and space in a transmitter building, each used in the operation of radio broadcast station WWDB-AM, such Tower and transmitter building space used for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Tower and transmitter building space obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
1. The second sentence of Section 13.01 of the Lease is hereby deleted.
2. The last sentence of Section 14.01 of the Lease is hereby deleted.
3. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
4. The following is hereby added to Exhibit C of the Lease:
Two transmitters for WWDB-AM occupy two-thirds (.) of such interior space and the remaining space is occupied by a phasing unit for WWDB-AM and associated equipment.
5. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
6. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
7. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED
TO CONFLICTS OF LAW PROVISIONS) OF THE COMMONWEALTH OF PENNSYLVANIA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
BY: ________________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
BEASLEY BROADCASTING OF EASTERN PENNSYLVANIA, INC.
BY: ________________________________
Name: George G. Beasley
Title: Chief Executive Officer
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Broadcasting of Coastal Carolina, Inc., a Delaware corporation (the "Lessee").
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor a communications tower facility used in the operation of radio broadcast station WNCT-AM (the "Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Tower obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
1. The second sentence of Section 13.01 of the Lease is hereby deleted.
2. The last sentence of Section 14.01 of the Lease is hereby deleted.
3. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
4. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
5. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NORTH CAROLINA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
LESSEE:
BEASLEY BROADCASTING OF
COASTAL CAROLINA, INC.
By: ___________________________
Name: George G. Beasley
Title: President
This Amendment (this "Amendment"), to that certain Lease Agreement, by and among the parties hereto, dated as of February __, 2000 (the "Lease"), is made as of this ___ day of December 2000, by and between Beasley Family Towers, Inc., a Delaware corporation (the "Lessor"), and Beasley Reed Acquisition Partnership, a Delaware general partnership (the "Lessee").
WITNESSETH:
WHEREAS, Lessor and Lessee entered into the Lease whereby Lessee leased from Lessor a communications tower facility used in the operation of radio broadcast station WQAM-AM (the "Tower"), for the purpose of Lessee's radio broadcast transmission activities;
WHEREAS, Lessor and Lessee desire to amend the Lease in certain respects to clarify the nature of the leasehold interest in the Tower obtained by Lessee pursuant to the Lease;
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, Lessor and Lessee, intending to be legally bound hereby, agree as follows:
1. The second sentence of Section 13.01 of the Lease is hereby deleted.
2. The last sentence of Section 14.01 of the Lease is hereby deleted.
3. The penultimate sentence of Section 14.03 of the Lease is hereby deleted.
4. Except as expressly provided herein, the Lease shall continue to be, and shall remain, in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Lease.
5. For the convenience of the parties, this Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes.
6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF FLORIDA.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Amendment to be duly executed on the day and year first written above.
LESSOR:
BEASLEY FAMILY TOWERS, INC.
By: ___________________________
Name: B. Caroline Beasley
Title: Secretary
LESSEE:
By: Beasley FM Acquisition Corp.,
a general partner
By: _________________________
Name: George G. Beasley
Title: Chief Executive
Officer
By: BRAP HOLDINGS, INC.,
a general partner
By: ___________________________
Name: B. Caroline Beasley
Title: Secretary
Beasley Broadcast Group, Inc. Subsidiaries
(state of incorporation)
Beasley Mezzanine Holdings, LLC (DE)
BRAP Holdings,Inc. (DE)
Beasley Reed Acquisition Partnership (DE)
WQAM License Limited Partnership (DE)
Beasley FM Acquisition Corp. (DE)
WXTU License Limited Partnership (DE)
WWNN License Limited Partnership (DE)
WJBX License Limited Partnership (DE)
WKIS License Limited Partnership (DE)
WMGV License Limited Partnership (DE)
WAZZ License Limited Partnership (DE)
WRXK License Limited Partnership (DE)
WFLB License Limited Partnership (DE)
WDAS License Limited Partnership (DE)
WIKS License Limited Partnership (DE)
WXNR License Limited Partnership (DE)
WPOW License Limited Partnership (DE)
WAEC License Limited Partnership (DE)
Beasley Broadcasting of New Jersey, Inc. (DE)
WTMR License Limited Partnership (DE)
Beasley Broadcasting of Coastal Carolina, Inc. (DE)
WNCT License Limited Partnership (DE)
Beasley Broadcasting of Eastern North Carolina, Incorporated (NC)
WKML License Limited Partnership (NC)
Beasley Broadcasting of Eastern Pennsylvania, Inc. (DE)
WWDB License Limited Partnership (DE)
Beasley Broadcasting of Southwest Florida, Inc. (DE)
WXKB License Limited Partnership (DE)
Beasley Radio, Inc. (DE)
WJPT License Limited Partnership (DE)
W & B Media, Inc. (NC)
WSFL License Limited Partnership (DE)
Beasley Communications, Inc. (DE)
WCHZ License, LLC (DE)
C S R A Broadcasters, Inc. (GA)
WGOR License, LLC (DE)
Beasley Broadcasting of Augusta, Inc. (DE)
WGAC License, LLC (DE)
Beasley Broadcasting of Boston, Inc. (DE)
WRCA License, LLC (DE)
Beasley Nevada Holdings, Inc. (NC)
Beasley Broadcasting of Nevada (NC)
KJUL License, LLC (NC)
EXHIBIT 23.1
The Board of Directors
Beasley Broadcast Group, Inc.:
We consent to incorporation by reference in the registration statement (No. 333-40806) on Form S-8 of Beasley Broadcast Group, Inc. of our report dated February 9, 2001, relating to the combined balance sheet of Beasley Broadcast Group, Inc. as of December 31, 1999 and the accompanying consolidated balance sheet of Beasley Broadcast Group, Inc. as of December 31, 2000, and the related combined statements of operations, stockholders' equity and cash flows for each of the years in the two-year period ended December 31, 1999 and the related consolidated statement of operations, stockholders' equity and cash flows for the year ended December 31, 2000, and all related schedules, which report appears in the December 31, 2000 annual report on From 10-K of Beasley Broadcast Group, Inc.
/s/ KPMG LLP Tampa, Florida February 12, 2001 |