Exhibit 10.6
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is dated
as of April 29, 1997 among Lockheed Xxxxxx Tactical Systems, Inc., a New York
corporation (the "Assignor"), L-3 COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Assignee"), and KSL, Division of Bonneville International, a
Utah corporation (the "Landlord"), with reference to the
following:
RECITALS
A. The Landlord, as landlord, and the Assignor, as tenant, executed a
Lease Agreement dated November 1, 1995, (which, together with all
modifications, amendments and supplements thereof, is hereinafter referred to
collectively as the "Lease"), a copy of which is attached hereto and
incorporated by reference as Exhibit A, pursuant to which Landlord leased to
the Assignor and the Assignor leased from Landlord property and improvements
described therein located in Oquirrh Mountains Range, Utah (the "Premises").
B. The Assignee is acquiring certain assets and assuming certain
liabilities from the Assignor including the Assignor's rights, leasehold
interest and obligations under the Lease.
C. In connection with such acquisition, the Assignor desires to
assign the Lease to the Assignee, and the Assignee desires to accept the
assignment of the Lease from the Assignor.
D. The Landlord has agreed to enter into this Assignment to, among
other things, evidence its consent to such assignment of the Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Assignor, the Assignee and the
Landlord hereby covenant and agree as follows:
1. Assignment. The Assignor grants, assigns and transfers to the
Assignee, its successors and assigns, all of the Assignor's right, title and
interest in, to and under the Lease (including, without limitation, any options
under the Lease and any rights to extend or renew the Lease) and the Assignee
accepts from the Assignor all of the Assignor's right, title and interest in,
to and under the Lease.
2. Assumption of Lease Obligation. The Assignee assumes and
agrees to perform and fulfill all terms, covenants, conditions and
obligations required to be performed and fulfilled by the Assignor under the
Lease, including, without limitation, the obligation to make all payments due
or payable on behalf of the Assignor under the Lease as they become due and
payable.
3. Representations of Assignor and Landlord. The Assignor and the
Landlord represent to the Assignee as follows:
(a) The Lease attached hereto as Exhibit A is a true, correct and
complete copy of the Lease (including all modifications, amendments and
supplements thereof) and the same are the only agreements between Landlord
and the Assignor with respect to the subject matter thereof.
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(b) The Lease is in full force and effect and, except for the
modifications, amendments and supplements included in Exhibit A, the Lease
has not been modified, amended or supplemented.
(c) Except as net forth on Exhibit B, no default by the Assignor or
the Landlord has occurred and is continuing under the Lease, and no event
has occurred and is continuing which with the giving of notice or the
lapse of time or both would constitute a default thereunder.
(d) No minimum or base rent or other rental has been paid in advance
(except for the current month).
(e) The monthly amount of base rent due under the Lease as of May 1,
1997, is $1,050, and the minimum or base rent and all other rentals and
other payments due, owing and accruing under the Lease have been paid
through April 30, 1997.
(f) The term of the Lease commenced on November 1, 1995, and the
current term of the Lease expires on October 31, 1998.
4. Landlord's Consent.
The Landlord hereby consents to the Assignor's assignment of the
Lease to the Assignee and the Assignee's assumption of the Lease. On and from
the date of this Assignment forward, the Landlord hereby releases and relieves
the Assignor from any and all liability and obligation under the Lease, and
agrees to look solely to the Assignee for performance of the terms, covenants
and conditions of tenant under the Lease.
5. Successors and Assigns. This Assignment shall be binding on and
inure to the benefit of the parties hereto, and their respective heirs,
personal representatives, successors and assigns, provided that this Section 5
shall not be construed to permit any future assignments of the Lease or
subletting of the Premises except as permitted by the Lease.
6. Counterparts. This Assignment may be signed in counterpart
and, as so executed, shall constitute a binding agreement.
7. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
as of the date first above written.
WITNESS/ATTEST: ASSIGNOR:
LOCKHEED XXXXXX TACTICAL SYSTEMS,
INC.
___________________________ By:________________________(SEAL)
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Assistant
Secretary
ASSIGNEE:
L-3 COMMUNICATIONS CORPORATION
___________________________ By:________________________(SEAL)
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President, Finance and
Controller
WITNESS/ATTEST: LANDLORD:
KSL, a division of BONNEVILLE
INTERNATIONAL CORPORATION
___________________________ By:________________________(SEAL)
Name: Xxxxx Xxxxxxxx
Title: Chief Engineer
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XXXXX XX XXX XXXX, XXXXXX XX XXX XXXX, TO WIT:
On this 30th day of April, 1997, before me a notary public of said
State, Xxxxxxx X. Xxxxx, the undersigned officer, personally appeared Xxxxxxx
X. Xxxxx, who acknowledged himself to be a Vice President and Assistant
Secretary of Lockheed Xxxxxx Tactical Systems, a New York corporation, and that
he, as such Vice President and Assistant Secretary, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by
signing the name of the Corporation by himself as a Vice President and
Assistant Secretary.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------
Notary Public
My Commission Expires:
STATE OF NEW YORK, COUNTY OF NEW YORK, TO WIT:
On this 30th day of April, 1997, before me a notary public of said
State, Xxxxxxx X. Xxxxxxxxx, the undersigned officer, personally appeared
Xxxxxxx X. Xxxxxxxxx, who acknowledged himself to be a Vice President of L-3
Communications Corporation, a Delaware corporation, and that he, as such Vice
President, being authorized so to do, executed the foregoing instrument for the
purposes therein contained, by signing the name of the corporation by himself
as a Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------
Notary Public
My Commission Expires:
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STATE OF UTAH, COUNTY OF SALT LAKE, TO WIT:
On this 28th day of April, 1997, before me a notary public of said
State, Xxxxx Xxxxxxxx, the undersigned officer, personally appeared Xxxxx
Xxxxxxxx, who acknowledged himself to be a Chief Engineer of KSL-TV, a Utah
corporation, and that he, as such Chief Engineer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by himself as a Chief Engineer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------
Notary Public
My Commission Expires:
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EXHIBIT A
THE LEASE
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TO: Xxxxx Xxxxxxx
FROM: Xxxxx X. Xxxxxx
DATE: January 10, 1996
SUBJECT: LCS Facilities Lease Request
Xxxxx, attached is the Lease request documentation for the Far Field Test
Antenna Range we have been discussing. I understand you will attached the
general liability, automobile coverage and workers compensation insurance
certification requested in paragraph 11 on page 6 of the lease. LCS will make
the helicopter insurance requirement noted in the same paragraph a requirement
of the purchase order(s) issued for that service.
If you have any questions you can call me at 000-000-0000.
Thank you for your assistance in this matter.
cc: X.X. Xxxxxx
D.C. Freeze
T.O. Miiller
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LEASE AGREEMENT
This Lease Agreement (the "Agreement") is entered into this 1st day
of November, 1995 between KSL, a division of Bonneville International
Corporation, a Utah corporation, with its principal place of business at
Xxxxxxxxx Xxxxx, 00 Xxxxx 000 Xxxx, X. O. Xxx 0000, Xxxx Xxxx Xxxx, Xxxx
00000-0000 ("Lessor") and Loral Communication Systems, a New York corporation,
with its principal place of business at 000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx,
Xxxx 00000 ("Lessee"), in light of the following circumstances:
Recitals
Whereas, Lessor is the owner of certain television and radio
transmission facilities located in the Oquirrh mountain range in Salt Lake and
Tooele counties, Utah at a location commonly known as Xxxxxxxxxx Peak (the
"Site"); and
Whereas, Lessee is engaged in the business of satellite
communications and data link services; and
Whereas, Lessee desires to lease from Lessor certain space and
equipment at the Site;
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Lessor and Lessee agree as follows:
Terms and Conditions
1. Leased Premises. Lessor hereby leases to Lessee, and Lessee hereby
accepts from Lessor, that certain space and equipment at the Site identified on
Schedule A to this Agreement (the "Premises") for the location and operation of
a test antenna of approximately six feet in length. A complete list of Lessee's
equipment to be located at the Premises (the "Equipment") is attached to this
Agreement as Schedule B.
2. During Furnished Items. During the term of this Agreement,
Lessor shall furnish Lessee with the following:
A. Access to the Site over the access road available to Lessor for
that purpose. Lessee understands that it will be subject to the same
restrictions on the use of such road as may be imposed on Lessor from time
to time by the entities controlling the property upon which the road is
located, including the Kennecott Copper Corporation, Alpha
Communications and Hercules Corporation;
B. Heat, light and toilet facilities at the Site;
C. The right to connect to the power load center at the Site for the
operation of the Equipment. Lessee's use of electricity will be separately
metered by Lessor. Lessor shall invoice Lessee monthly for such electrical
usage at the established commercial rates of the Utah Power and Light
Company, plus the lesser of ten percent of Lessee's monthly statement or
$30.00 for administration and general expenses.
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Invoices shall be payable within twenty days of the date of billing. In
the event an invoice is more than ten days delinquent, Lessor, upon five
days written notice, shall be entitled to cease supplying Lessee with
electricity;
D. Upon Lessee's request, emergency service, if available, for the
Equipment. Rates for emergency service are set forth in Schedule O to
this Agreement and may be adjusted from time to time as determined by
Lessor;
E. The right to make reasonable alterations, attach fixtures and
erect additions to the Premises as required to operate the Equipment, but
only so long as plans for such alterations, attachments or additions are
submitted, along with a list of added and/or replaced materials, to Lessor
for approval, which approval shall not be unreasonably withheld. In no
event shall any of Lessee's alterations, attachments or additions
interfere with the operation or work of Lessor or of other tenants at the
Site;
F. Other services, such as the use of tools and parts owned by
Lessor, at the rates listed on Schedule O, as such may be adjusted from
time to time as determined by Lessor; and
G. Maintenance of the Site in good operating order.
3. Monthly Payments by Lessee. In exchange for the right to occupy
the Premises and operate the Equipment, Lessee shall pay to Lessor the monthly
rental payment and other fees set forth in Schedule C to this Agreement. The
monthly rental payment shall be payable in advance on or before the first day
of each calendar month at Lessor's principal place of business or at such other
place or in such other manner as Lessor may from time to time direct; provided,
however, that in the event the term of this Agreement shall commence on other
than the first day of a calendar month or terminate on other than the last day
of a calendar month, the monthly rental payment shall be prorated on a daily
basis for such partial calendar month. Unless otherwise specifically set forth
elsewhere in this Agreement, all other payments required to be made by Lessee
to Lessor shall be paid by within twenty days of the date of invoice.
4. Other Costs. Lessee recognizes that additional expenses may be
incurred by Lessor from time to time for the benefit of Lessee and other
tenants at the Site, such as the cost of transporting various government
inspectors, tax assessors, state and/or county officers/officials and the like
to and from the Site. Lessee agrees to pay its share of such costs on a pro
rata basis as calculated by Lessor. Lessor shall provide Lessee with proof of
such costs, along with calculations for determining the amount charged to
Lessee.
5. Compliance. Lessee's operations at the Site shall be in full
compliance with all applicable laws, statutes, ordinances, rules and
regulations of any governmental authority having jurisdiction over Lessor,
Lessee or the Site, including, but not limited to, the Federal Communications
Commission (the "FCC"). Lessee shall bear the cost and responsibility for all
matters pertaining to its operations at the Site, including, but not limited
to, applications, renewals, regular or special reports, discrepancy citations,
inspections or any changes in equipment which may be required from time to time
by the FCC or standards of good engineering practice.
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Lessee shall protect all persons at the Site at all times from
exposure to excessive non-ionizing radiation (as determined by the FCC, the
Occupational Safety and Health Agency, the Environmental Protection Agency or
any other governmental authority) which may be generated as a result of
Lessee's operations. In the event Lessee's operations appear to be causing
excessive non-ionizing radiation, Lessor shall have the right, but not the
obligation, to take whatever action Lessor deems appropriate to reduce the
amount of such radiation, including, but not limited to, the interruption of
Lessee's operations or the reduction of Lessee's transmission power. Lessor
shall invoice Lessee for the costs of any such action and Lessee shall promptly
pay such amount within twenty days of the date of invoice.
6. Interference. Lessee acknowledges that Lessor reserves the right
to grant space, premises, facilities and/or rights to third parties at the Site
that are the same as or similar to those granted herein to Lessee. Lessee shall
endeavor in good faith to conduct its activities in accordance with sound
electronic and engineering practices and applicable FCC standards and will
cooperate with Lessor and other tenants at the Site so as to anticipate and
prevent Interference, as that term is defined below. A list of Tenants at the
Site as of the commencement of this Agreement is attached hereto as Schedule S.
If Lessee's operations cause Interference, Lessee shall, at its sole
cost and expense and without recourse to Lessor, cause any such Interference to
be corrected within ten days following written notice thereof to Lessee.
Pending correction, Lessee shall immediately cease the activity or remove the
equipment causing the Interference. If Lessee fails to act within the given
time frame, Lessor may cause the required corrections to be made. Lessor shall
invoice Lessee for the costs of any such action and Lessee shall promptly pay
such amount within twenty days of the date of invoice.
"Interference" shall be deemed to exist if (i) a final determination
to that effect is made by an authorized representative of the FCC pursuant to
its rules and regulations; (ii) a condition exists which constitutes
interference within the meaning of the provisions of the rules and regulations
of the FCC in effect at the time; or (iii) Lessor makes a good faith
determination that its technical operations or the technical operations of any
other tenants at the Site are being adversely affected by Lessee's activities.
7. Lessor Improvements. Lessor reserves the right to replace or
install additional equipment at the Site necessary or desirable for its own
operations. Lessor shall not be liable for any disruption of or interference to
Lessee's operations by reason of such replacement or installation, but Lessor
agrees to cooperate with Lessee and to use reasonable efforts to resolve in
advance any problems that might arise in connection with these activities.
8. Assignment or Sublease. Lessee may not assign or transfer this
Agreement or any interest therein, sublease any interest covered by this
Agreement or encumber, hypothecate or otherwise give as security this Agreement
or any interest therein without the prior written consent of Lessor, which
consent shall not be unreasonably withheld. No assignment, transfer or sublease
shall be effective as against Lessor for any purpose, unless Lessor shall have
consented thereto in writing prior to such assignment, transfer or sublease and
unless all sums due from Lessee,
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together with any costs to Lessor to cover reasonable legal and other expenses
of Lessor in connection with such assignment, transfer or sublease, shall have
been paid to Lessor.
Each and every attempt to assign, sell, transfer or encumber this
Agreement or any interest therein and each and every attempt to sublease any
interest covered hereby in a manner contrary to that set forth in this
paragraph may be deemed a default by Lessee hereunder.
Lessor's consent to one assignment, transfer or sublease by Lessee or
acceptance of performance from an assignee, transferee or sublessee shall not
be deemed a waiver by Lessor of the restrictions of this paragraph as to
subsequent attempts to assign, transfer or sublet by Lessee or by Lessee's
heirs, successors, assigns, transferees or sublessees. As used herein, the
terms Lessor and Lessee shall be deemed to include their respective heirs,
successors, assigns, transferees or sublessees.
The terms, conditions and covenants contained in this Agreement shall
apply to, inure to the benefit of and be binding upon the parties hereto and
their respective legal representatives, successors, assigns, transferees and
sublessees.
Lessor shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Site and in such
event Lessor shall be released from any further obligations hereunder and the
successor-in-interest of Lessor shall have all the rights and obligations
hereunder and in the Site with respect to Lessee.
9. Term. The initial term of this Agreement shall begin on November
1, 1995 and shall end on October 31, 1996. This Agreement shall thereafter be
renewed for up to three additional two year periods (from November 1, 1996
through October 31, 1998; from November 1, 1998 through October 31, 2000; and
from November 1, 2000 through October 31, 2002, respectively) upon the same
terms and conditions set forth herein unless Lessee provides Lessor with
written notice at least ninety days prior to the expiration of the then current
term.
10. Default by Lessee. The following events shall be deemed to be
events of default by Lessee under this Agreement (each such event of default
is hereinafter referred to as an "Event of Default"):
A. Lessee shall fail to timely pay any monthly rental payment as
referenced in paragraph 3 above or any other sum of money due hereunder
and such failure shall continue for a period of ten days;
B. Lessee shall fail to comply with any provision of this Agreement
not requiring the payment of money, all of which provisions shall be
deemed material, and such failure shall continue for a period of twenty
days after written notice of such default is delivered to Lessee;
C. Lessee shall become insolvent or fail to pay its debts as they
become due or Lessee notifies Lessor that it anticipates either
condition;
D. Lessee takes any action to file a petition under any section or
chapter of the United States Bankruptcy Code or under any similar law or
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statute of the United States or any state thereof or a petition shall be
filed against Lessee under any such statute or Lessee or any creditor of
Lessee notifies Lessor that it knows such a petition will be filed or
Lessee notifies Lessor that it expects such a petition to be filed; or
E. A receiver or trustee shall be appointed for Lessee's leasehold
interest in the Premises or for all or a substantial part of Lessee's
assets.
Upon the occurrence of any Event of Default, Lessor may at its option
and without further notice to all other remedies given hereunder or by law or
in equity, do any one or more of the following: (i) terminate this Agreement,
in which event Lessee shall immediately surrender possession of the Premises to
Lessor; (ii) enter upon the Premises and expel or remove Lessee's Equipment
therefrom, with or without having terminated this Agreement; and (iii) change
or re-key all locks to entrances to the Site and Lessor shall have no
obligation to give Lessee notice thereof or to provide Lessee with a new key to
the Site.
The exercise by Lessor of any one or more remedies hereunder shall
not constitute an acceptance of the surrender of the Premises by Lessee. Lessee
acknowledges that a surrender of the Premises can be effected only by a written
agreement between Lessor and Lessee.
If Lessor terminates this Agreement by reason of an Event of Default,
Lessee shall pay to Lessor the sum of (i) the cost of recovering the Premises;
(ii) the unpaid monthly payments and all other indebtedness accrued hereunder
to the date of such termination; (iii) to the extent the same were not paid,
the cost of repairing, altering or otherwise putting the Premises into a
condition acceptable to a new tenant or tenants (if Lessor elects to so relet)
(collectively, the "Reletting Expenses"); (iv) all expenses incurred by Lessor
in enforcing Lessor's remedies, including attorneys' fees and court costs; (v)
the total monthly payments and other benefits which Lessor would have received
under this Agreement for the remainder of the term, minus any net sums
thereafter received by Lessor through reletting the Premises during such
period; and (vi) any other damages or relief which Lessor may be entitled to at
law or in equity. Lessee shall not be entitled to any excess rent obtained by
reletting the Premises.
If Lessor repossesses the Premises without terminating this Agreement
by reason of an Event of Default, then Lessee shall pay to Lessor the sum of
(i) the cost of recovering the Premises; (ii) the unpaid monthly payments and
all other indebtedness accrued hereunder to the date of such repossession;
(iii) the Reletting Expenses; (iv) all expenses incurred by Lessor in enforcing
Lessor's remedies, including attorneys' fees and court costs; (v) the total
monthly payments and other benefits which Lessor would have received under this
Agreement for the remainder of the term, minus any net sums thereafter received
by Lessor through reletting the Premises during such period; and (vi) any other
damages or relief which Lessor may be entitled to at law or in equity. Re-entry
by Lessor will not affect the obligations of Lessee for the unexpired term of
this Agreement. Lessee shall not be entitled to any excess rent obtained by
reletting the Premises. Actions to collect amounts due by Lessee may be brought
on one or more occasions without the necessity of Lessor's waiting until the
expiration of the term of this Agreement.
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Upon termination of this Agreement or repossession of the Premises
due to an Event of Default, Lessor shall not be obligated to relet or attempt
to relet the Premises or any portion thereof or to collect rent after
reletting, but Lessor shall have the option to relet the whole or any portion
of the Premises for any period to any tenant and for any use and purpose.
11. Insurance. Lessee shall at its own cost and expense procure and
maintain general liability insurance coverage and automobile coverage in the
face amount of at least $1,000,000.00 per occurrence and workers compensation
insurance as prescribed by Utah state law. A certificate of insurance naming
Lessor as an additional insured shall be attached to this Agreement as Schedule
I. In addition, Lessee shall use only certified and insured helicopter carriers
for trips and from the Site. Such carriers shall carry liability insurance in
the face amount of at least $5,000,000.00 per occurrence. All such insurance
shall cover Lessee's employees, agents and invitees while in, or about the Site
and while traveling to and from the Site, including losses attributable to the
presence of the Equipment, Lessee's employees, agents or invitees while in, on
or about the Site. Lessee shall be solely responsible for procuring and
maintaining property insurance on the Equipment.
12. Indemnification. Lessee shall indemnify, defend and hold harmless
Lessor and any officer, director, employee, contractor, agent or affiliate of
Lessor (collectively, a "Lessor Related Party") from and against any and all
liabilities, obligations, damages, claims, suits, losses, causes of action,
liens, judgments and expenses (including court costs, attorneys' fees and costs
of investigation) or any kind, nature or description resulting from any
injuries to or death of any person or any damage to the Site which either (i)
arises from or is claimed to arise from any act, omission or negligence of
Lessee or any employee, officer, contractor, agent, subtenant, guest, licensee
or invitee of Lessee; (ii) arises from a breach, violation or nonperformance of
any term, provision, covenant or agreement of Lessee hereunder or a breach or
violation by Lessee of any court order or any law, regulation or ordinance of
any federal, state or local authority; or (iii) arises from the activities of
Lessee in and around the Site or the operations or conduct of Lessee's business
upon the Site (collectively, the "Claims"), except to the extent such Claims
are directly caused by the gross negligence or willful misconduct of Lessor. If
any such Claim is made against Lessor, Lessee shall at its sole cost and
expense defend such Claim by or through attorneys satisfactory to Lessor. In
resolving or settling any Claim, Lessee shall obtain a release of such Claim
made against Lessor or any Lessor Related Party. The indemnity obligations of
Lessee are in addition to Lessee's obligations to obtain and maintain insurance
as otherwise provided herein.
Lessee specifically agrees to look solely to Lessor's interest in the
Site for the recovery of any judgment against Lessor.
13. Limits on Liability. Lessor shall have no liability to Lessee
or any other party for any loss allegedly occasioned by the nontransmission
or partial transmission of Lessee's data or damage to the Equipment by reason
of the physical collapse of a tower or antennas, breakdown of a transmitter
or its components, failure or inability of Utah Power and Light Company to
supply electrical power, failure of Lessor's emergency generator, acts of
God, sabotage, earthquake, fire, theft, burglary, windstorm or any other
hazard (natural or man-made), strikes or walkouts,cancellation of Lessee's
licenses or any other cause beyond Lessor's control. Lessor shall have no
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liability to Lessee or any other party and Lessee shall indemnify Lessor from
and against all claims, costs and expenses for non-ionizing radiation claimed
to originate as a result of Lessee's operations at the Site.
14. Lessor's Facilities. Lessor shall have first call on personnel
and all Lessor's equipment at the Site, which personnel and/or equipment may be
temporarily limited by reason of personnel or power shortage and/or demand for
reconstruction following a general breakdown caused by acts within or beyond
Lessor's control. Lessor's emergency power supply equipment at the Site will
not be available to Lessee in the event of a Utah Power and Light Company
failure, except as otherwise provided in Schedule O.
15. Property Tax. Lessee shall be responsible for any property
taxes which arise from the operation of the Equipment at the Site. Lessee
acknowledges that the Equipment may be located in Salt Lake and/or Tooele
counties.
16. Late Charges. Any amount owing to Lessor from Lessee under this
Agreement that is thirty days past due shall be assessed a late charge of
$50.00 per invoice per month for each invoice totaling less than $500.00 and a
late charge of $200.00 per invoice per month for each invoice that is equal to
or greater than $500.00.
17. Road Maintenance Charge. Lessee acknowledges and agrees that an
annual charge shall be assessed by Lessor to Lessee to cover access roadway
maintenance and repairs. This cost shall be prorated among the various users of
the Xxxxxxxxxx Peak/Little Xxxxxxxxxx Peak areas and is due and payable from
Lessee on or before July 1st annually.
18. Notices. All notices to be given under this Agreement shall be in
writing and shall be deemed to have been given if delivered personally, mailed
by certified mail, return receipt requested, or delivered by recognized
commercial courier to the other party at its last known business address.
19. Governing Law. This Agreement shall be interpreted under and
governed by the laws of the State of Utah.
20. Environmental Representations and Warranties. Neither Lessee nor
Lessee's agents, contractors, authorized representatives or employees shall
engage in any of the following prohibited activities in, on or about the Site:
A. Cause or permit any releases, discharges or spills of
Hazardous Material on or from the Site;
B. Cause or permit any manufacturing, holding, handling,
retaining, transporting spilling, leaking, treating, disposing or
dumping of Hazardous Material in or on any portion of the Site;
C. Cause or permit to be located on the Site any underground or
above-ground tanks for the storage of fuel oil, gasoline and/or other
petroleum products or by-products;
D. Cause or permit any releases, discharges or spills of fuel
oil, gasoline and/or other petroleum products or by-products; or
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E. Otherwise place, keep, or maintain, or allow to be placed,
kept or maintained, any Hazardous Material on any portion of the Site.
For purposes of this paragraph, "Hazardous Material" means any
radioactive, hazardous or toxic substance, material, waste or similar terms,
including, without limitation, petroleum and petroleum products, the presence
of which at the Site or the discharge or emission of which from the Site or the
collection, storage, treatment or disposal of which is regulated by
governmental requirements or regulations.
21. Waiver. The parties agree that the waiver of any breach of this
Agreement by either party shall in no event constitute a waiver as to any
further breach.
22. Headings. Headings on each paragraph of this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
23. Entire Agreement; Construction: This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements, contracts or other arrangements. No
amendments, modifications or supplements to this Agreement shall be binding
unless executed in writing by the parties hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first listed above.
KSL, a Division of Bonneville
International Corporation
By:__________________________
Its:_________________________
Loral Communication Systems
By:__________________________
Its:_________________________
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Schedule A
The Premises are marked on the attached drawing of the site. The premises
include approximately 210 square feet of space in the attic above the kitchen
in the Transmitter Building shown in the attached drawing for Lessee to install
one six foot antenna with associated equipment of Schedule B.
Attachment: Drawing KSLFPSD002 Site Plot Xxxxxxxxxx Peak
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Schedule B
List of Lessee's Equipment
Item Description Qty.
------- ----------- ----
1 HP-83751B Frequency Generator 1
2 HP-8563E Spectrum Analyzer 1
3 HP-3488A Switch Control Unit 1
4 486 Personal Computer 1
5 Video Monitor 1
6 Parabolic Reflector, 6 ft. diameter 1
7 Antenna Feeds (C, X, and Ku) 3
8 Az/El Antenna Positioner 1
9 Antenna Positioner Control Unit 1
10 3 dB 90 degree Coaxial Hybrid 1
11 Coaxial Line Stretcher 2
12 Wideband Coaxial Low Noise Amplifier 1
13 Power Meter 1
14 Directional Coupler 1
15 24V DC Power Supply 1
16 Misc. Cables and Connectors
18
Schedule C
For the period November 1, 1995 through October 31, 1996, Lessee's
monthly rental payment shall be $1,100.00. If this Agreement is extended as set
forth in paragraph 9, beginning November 1, 1996 and continuing every year
thereafter, the monthly rental payment shall be increased at the rate of five
percent per year.
If Lessee increases and/or modifies the Equipment or otherwise
materially changes the nature of its operations at the Site, Lessor shall be
entitled to increase the monthly rental payment accordingly.
The above-described monthly rental payment shall include the right of
access to one telephone line to be provided by Lessor to Lessee.
19
Schedule I
Certificate of Insurance
20
Schedule O
1. Requested Emergency Engineering/Technical Services. $50.00
per hour. Hours shall be invoiced in tenths, with a minimum charge per
request of two-tenths of an hour.
2. Emergency Power Generator Use. This service is available only to
the capacity of the system. Tenants have priority based on their length of time
at the Site. Cost is $8.00/KVA (peak demand rate) per month. Should operation
time exceed fifty hours per year, an additional charge will be made to cover
the cost of additional fuel.
3. Use of Tools and Workshop. The room known as the PI room is
equipped with a work bench and tools, tool board, ladders, drill press,
grinder, extension power cords, goggles and face shield which may be used by
Lessee. Lessee shall be responsible for any loss, breakage or damage. The
cabinet labeled "Tenant Use" contains a minimal assortment of electronic test
equipment that is also available for use.
4. Specialized Equipment and Supplies. An additional charge will
be made for use of some items. The listing of such items is posted on the
bulletin board at the Site and use of these items is subject to permission of
Lessor's engineer on site.
5. Use of Parts and Supplies. Lessor does not stock, inventory,
sell or supply parts. In an emergency, the following rules apply:
A. The requested item must be available and not in immediate need
by Lessor;
B. Approval to use the item must be obtained from Lessor's
engineer on site; and
C. No exchange of money or parts will be allowed, but replacement
with identical and new parts on the basis of replace two items for any
one used within seven days.
21
Schedule S
Seniority
1. KSL-TV (Operations Began) . . . . . . . . . . . . 1952
2. KSFI (FM) . . . . . . . . . . . . . . . . . . . . Nov. 1, 1957
3. KISN (FM) . . . . . . . . . . . . . . . . . . . . Nov. 11, 1968
4. U.S. Government, Secret Service . . . . . . . . . Jun. 1, 1972
5. KSOP (FM) . . . . . . . . . . . . . . . . . . . . Sep. 15, 1973
6. KRSP (FM) . . . . . . . . . . . . . . . . . . . . Dec. 14, 1973
7. Utah Transit Authority . . . . . . . . . . . . . Nov. 3, 1976
8. Xxxxxxxx Electric . . . . . . . . . . . . . . . . Apr. 4, 1977
9. KBUL (FM) . . . . . . . . . . . . . . . . . . . . Jul. 1, 1977
10. KBER (FM) . . . . . . . . . . . . . . . . . . . . Xxx. 0, 0000
00. Utah Transit Authority . . . . . . . . . . . . . Dec. 1, 1978
12. KBZN (FM) . . . . . . . . . . . . . . . . . . . . Feb. 1, 1979
13. KRCL (FM) . . . . . . . . . . . . . . . . . . . . Aug. 30, 1979
14. Questar . . . . . . . . . . . . . . . . . . . . . Jun. 20, 1981
15. Precision Electronics . . . . . . . . . . . . . . Jun. 26, 1981
16. KKAT (FM) . . . . . . . . . . . . . . . . . . . . Mar. 23, 1983
17. GTE Airfone . . . . . . . . . . . . . . . . . . . Sep. 14, 1990
18. KUMT (FM) . . . . . . . . . . . . . . . . . . . . Aug. 20, 1991
19. Technivision Inc., dba Omnivision . . . . . . . . Mar. 1992
20. Clairtel Communications Group, L.P. . . . . . . . Jun. 15, 1992
21. SMR of Utah, Inc. . . . . . . . . . . . . . . . . Nov. 15, 1992
22. Family Stations, Inc. . . . . . . . . . . . . . . July 6, 1994
23. Loral Communications Systems . . . . . . . . . . Nov. 1, 1995
22
LEASE AGREEMENT
This Lease Agreement (the "Agreement") is entered into this 18th day
of March, 1996 to be effective November 1, 1995, between KSL, a division of
Bonneville International Corporation, a Utah corporation, with its principal
place of business at Xxxxxxxxx Xxxxx, 00 Xxxxx 000 Xxxx, X. O. Xxx 0000, Xxxx
Xxxx Xxxx, Xxxx 00000-0000 ("Lessor") and Loral Corporation, a New York
corporation, with its principal place of business at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Lessee"), in light of the following circumstances:
Recitals
Whereas, Lessor is the owner of certain television and radio
transmission facilities located in the Oquirrh mountain range in Salt Lake and
Tooele counties, Utah at a location commonly known as Xxxxxxxxxx Peak (the
"Site"); and
Whereas, Lessee is engaged in the business of satellite
communications and data link services; and
Whereas, Lessee desires to lease from Lessor certain space and
equipment at the Site;
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Lessor and Lessee agree as follows:
Terms and Conditions
1. Leased Premises. Lessor hereby leases to Lessee, and Lessee hereby
accepts from Lessor, that certain space and equipment at the Site identified on
Schedule A to this Agreement (the "Premises") for the location and operation of
a test antenna of approximately six feet in length. A complete list of Lessee's
equipment to be located at the Premises (the "Equipment") is attached to this
Agreement as Schedule B.
2. Lessor Furnished Items. During the term of this Agreement,
Lessor shall furnish Lessee with the following:
A. Access to the Site over the access road available to Lessor for
that purpose. Lessee understands that it will be subject to the same
restrictions on the use of such road as may be imposed on Lessor from time
to time by the entities controlling the property upon which the road is
located, including the Kennecott Copper Corporation, Alpha
Communications and Hercules Corporation;
B. Heat, light and toilet facilities at the Site;
C. The right to connect to the power load center at the Site for the
operation of the Equipment. Lessee's use of electricity will be separately
metered by Lessor. Lessor shall invoice Lessee monthly for such electrical
usage at the established commercial rates of the Utah Power and Light
Company, plus the lesser of ten percent of Lessee's monthly statement or
$30.00 for administration and general expenses.
23
Invoices shall be payable within twenty days of the date of billing. In
the event an invoice is more than ten days delinquent, Lessor, upon five
days written notice, shall be entitled to cease supplying Lessee with
electricity;
D. Upon Lessee's request, emergency service, if available, for the
Equipment. Rates for emergency service are set forth in Schedule O to
this Agreement and may be adjusted from time to time as determined by
Lessor;
E. The right to make reasonable alterations, attach fixtures and
erect additions to the Premises as required to operate the Equipment, but
only so long as plans for such alterations, attachments or additions are
submitted, along with a list of added and/or replaced materials, to Lessor
for approval, which approval shall not be unreasonably withheld. In no
event shall any of Lessee's alterations, attachments or additions
interfere with the operation or work of Lessor or of other tenants at the
Site;
F. Other services, such as the use of tools and parts owned by
Lessor, at the rates listed on Schedule O, as such may be adjusted from
time to time as determined by Lessor; and
G. Maintenance of the Site in good operation order.
3. Monthly Payments by Lessee. In exchange for the right to occupy
the Premises and operate the Equipment, Lessee shall pay to Lessor the monthly
rental payment and other fees set forth in Schedule C to this Agreement. The
monthly rental payment shall be payable in advance on or before the first day
of each calendar month at Lessor's principal place of business or at such other
place or in such other manner as Lessor may from time to time direct; provided,
however, that in the event the term of this Agreement shall commence on other
than the first day of a calendar month or terminate on other than the last day
of a calendar month, the monthly rental payment shall be prorated on a daily
basis for such partial calendar month. Unless otherwise specifically set forth
elsewhere in this Agreement, all other payments required to be made by Lessee
to Lessor shall be paid by within twenty days of the date of invoice.
4. Other Costs. Lessee recognizes that additional expenses may be
incurred by Lessor from time to time for the benefit of Lessee and other
tenants at the Site, such as the cost of transporting various government
inspectors, tax assessors, state and/or county officers/officials and the like
to and from the Site. Lessee agrees to pay its share of such costs on a pro
rata basis as calculated by Lessor. Lessor shall provide Lessee with proof of
such costs, along with calculations for determining the amount charged to
Lessee.
5. Compliance. Lessee's operations at the Site shall be in full
compliance with all applicable laws, statutes, ordinances, rules and
regulations of any governmental authority having jurisdiction over Lessor,
Lessee or the Site, including, but not limited to, the Federal Communications
Commission (the "FCC"). Lessee shall bear the cost and responsibility for all
matters pertaining to its operations at the Site, including, but not limited
to, applications, renewals, regular or special reports, discrepancy citations,
inspections or any changes in equipment which may be required from time to time
by the FCC or standards of good engineering practice.
24
Lessee shall protect all persons at the Site at all times from
exposure to excessive non-ionizing radiation (as determined by the FCC, the
Occupational Safety and Health Agency, the Environmental Protection Agency or
any other governmental authority) which may be generated as a result of
Lessee's operations. In the event Lessee's operations appear to be causing
excessive non-ionizing radiation, Lessor shall have the right, but not the
obligation, to take whatever action Lessor deems appropriate to reduce the
amount of such radiation, including, but not limited to, the interruption of
Lessee's operations or the reduction of Lessee's transmission power. Lessor
shall invoice Lessee for the costs of any such action and Lessee shall promptly
pay such amount within twenty days of the date of invoice.
6. Interference. Lessee acknowledges that Lessor reserves the right
to grant space, premises, facilities and/or rights to third parties at the Site
that are the same as or similar to those granted herein to Lessee. Lessee shall
endeavor in good faith to conduct its activities in accordance with sound
electronic and engineering practices and applicable FCC standards and will
cooperate with Lessor and other tenants at the Site so as to anticipate and
prevent Interference, as that term is defined below. A list of Tenants at the
Site as of the commencement of this Agreement is attached hereto as Schedule S.
If Lessee's operations cause Interference, Lessee shall, at its sole
cost and expense and without recourse to Lessor, cause any such Interference to
be corrected within ten days following written notice thereof to Lessee.
Pending correction, Lessee shall immediately cease the activity or remove the
equipment causing the Interference. If Lessee fails to act within the given
time frame, Lessor may cause the required corrections to be made. Lessor shall
invoice Lessee for the costs of any such action and Lessee shall promptly pay
such amount within twenty days of the date of invoice.
"Interference" shall be deemed to exist if (i) a final determination
to that effect is made by an authorized representative of the FCC pursuant to
its rules and regulations; (ii) a condition exists which constitutes
interference within the meaning of the provisions of the rules and regulations
of the FCC in effect at the time; or (iii) Lessor makes a good faith
determination that its technical operations or the technical operations of any
other tenants at the Site are being adversely affected by Lessee's activities.
7. Lessor Improvements. Lessor reserves the right to replace or
install additional equipment at the Site necessary or desirable for its own
operations. Lessor shall not be liable for any disruption of or interference to
Lessee's operations by reason of such replacement or installation, but Lessor
agrees to cooperate with Lessee and to use reasonable efforts to resolve in
advance any problems that might arise in connection with these activities.
8. Assignment or Sublease. Lessee may not assign or transfer this
Agreement or any interest therein, sublease any interest covered by this
Agreement or encumber, hypothecate or otherwise give as security this Agreement
or any interest therein without the prior written consent of Lessor, which
consent shall not be unreasonably withheld. No assignment, transfer or sublease
shall be effective as against Lessor for any purpose, unless Lessor shall have
consented thereto in writing prior to such assignment, transfer or sublease and
unless all sums due from Lessee,
25
together with any costs to Lessor to cover reasonable legal and other expenses
of Lessor in connection with such assignment, transfer or sublease, shall have
been paid to Lessor.
Each and every attempt to assign, sell, transfer or encumber this
Agreement or any interest therein and each and every attempt to sublease any
interest covered hereby in a manner contrary to that set forth in this
paragraph may be deemed a default by Lessee hereunder.
Lessor's consent to one assignment, transfer or sublease by Lessee or
acceptance of performance from an assignee, transferee or sublessee shall not
be deemed a waiver by Lessor of the restrictions of this paragraph as to
subsequent attempts to assign, transfer or sublet by Lessee or by Lessee's
heirs, successors, assigns, transferees or sublessees. As used herein, the
terms Lessor and Lessee shall be deemed to include their respective heirs,
successors, assigns, transferees or sublessees.
The terms, conditions and covenants contained in this Agreement shall
apply to, inure to the benefit of and be binding upon the parties hereto and
their respective legal representatives, successors, assigns, transferees and
sublessees.
Lessor shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Site and in such
event Lessor shall be released from any further obligations hereunder and the
successor-in-interest of Lessor shall have all the rights and obligations
hereunder and in the Site with respect to Lessee.
9. Term. The initial term of this Agreement shall begin on November
1, 1995 and shall end on October 31, 1996. This Agreement shall thereafter be
renewed for up to three additional two year periods (from November 1, 1996
through October 31, 1998; from November 1, 1998 through October 31, 2000; and
from November 1, 2000 through October 31, 2002, respectively) upon the same
terms and conditions set forth herein, provided Lessee gives Lessor written
notice at least ninety days prior to the expiration of the then current term.
10. Default by Lessee. The following events shall be deemed to be
events of default by Lessee under this Agreement (each such event of default
is hereinafter referred to as an "Event of Default"):
A. Lessee shall fail to timely pay any monthly rental payment as
referenced in paragraph 3 above or any other sum of money due hereunder
and such failure shall continue for a period of ten days after written
notice of such default is delivered to Lessee;
B. Lessee shall fail to comply with any provision of this Agreement
not requiring the payment of money, all of which provisions shall be
deemed material, and such failure shall continue for a period of twenty
days after written notice of such default is delivered to Lessee;
C. Lessee shall become insolvent or fail to pay its debts as they
become due or Lessee notifies Lessor that it anticipates either
condition;
26
D. Lessee takes any action to file a petition under any section or
chapter of the United States Bankruptcy Code or under any similar law or
site of the United States or any state thereof or a petition shall be
filed against Lessee under any such statute or Lessee or any creditor of
Lessee notifies Lessor that it knows such a petition will be filed or
Lessee notifies Lessor that it expects such a petition to be filed; or
E. A receiver or trustee shall be appointed for Lessee's leasehold
interest in the Premises or for all or a substantial part of Lessee's
assets.
Upon the occurrence of any Event of Default, Lessor may at its option
and without further notice to Lessee and in addition to all other remedies
given hereunder or by law or in equity, do any one or more of the following:
(i) terminate this Agreement, in which event Lessee shall immediately surrender
possession of the Premises to Lessor; (ii) enter upon the Premises and expel or
remove Lessee's Equipment therefrom, with or without having terminated this
Agreement; and (iii) change or re-key all locks to entrances to the Site and
Lessor shall have no obligation to give Lessee notice thereof or to provide
Lessee with a new key to the Site.
The exercise by Lessor of any one or more remedies hereunder shall
not constitute an acceptance of the surrender of the Premises by Lessee. Lessee
acknowledges that a surrender of the Premises can be effected only by a written
agreement between Lessor and Lessee.
If Lessor terminates this Agreement by reason of an Event of Default,
Lessee shall pay to Lessor the sum of (i) the cost of recovering the Premises;
(ii) the unpaid monthly payments and all other indebtedness accrued hereunder
to the date of such termination; (iii) to the extent the same were not paid,
the cost of repairing, altering or otherwise putting the Premises into a
condition acceptable to a new tenant or tenants (if Lessor elects to so relet)
(collectively, the "Reletting Expenses"); (iv) all expenses incurred by Lessor
in enforcing Lessor's remedies, including attorneys' fees and court costs; (v)
the total monthly payments and other benefits which Lessor would have received
under this Agreement for the remainder of the term, minus any net sums
thereafter received by Lessor through reletting the Premises during such
period; and (vi) any other damages or relief which Lessor may be entitled to at
law or in equity. Lessee shall not be entitled to any excess rent obtained by
reletting the Premises.
If Lessor repossesses the Premises without terminating this Agreement
by reason of an Event of Default, then Lessee shall pay to Lessor the sum of
(i) the cost of recovering the Premises; (ii) the unpaid monthly payments and
all other indebtedness accrued hereunder to the date of such repossession;
(iii) the Reletting Expenses; (iv) all expenses incurred by Lessor in enforcing
Lessor's remedies, including attorneys' fees and court costs; (v) the total
monthly payments and other benefits which Lessor would have received under this
Agreement for the remainder of the term, minus any net sums thereafter received
by Lessor through reletting the Premises during such period; and (vi) any other
damages or relief which Lessor may be entitled to at law or in equity. Re-entry
by Lessor or will not affect the obligations of Lessee for the unexpired term
of this Agreement. Lessee shall not be entitled to any excess rent obtained by
reletting the Premises. Actions to collect amounts due by Lessee may be brought
on one or more occasions without the necessity of Lessor's waiting until the
expiration of the term of this Agreement.
27
Upon termination of this Agreement or repossession of the Premises
due to an Event of Default, Lessor shall not be obligated to relet or attempt
to relet the Premises or any portion thereof or to collect rent after
reletting, but Lessor shall have the option to relet the whole or any portion
of the Premises for any period to any tenant and for any use and purpose.
11. Insurance. Lessee shall at its own cost and expense procure and
maintain general liability insurance coverage and automobile coverage in the
face amount of at least $1,000,000.00 per occurrence and workers compensation
insurance as prescribed by Utah state law. A certificate of insurance naming
Lessor as an additional insured shall be attached to this Agreement as Schedule
I. In addition, Lessee shall use only certified and insured helicopter carriers
for trips and from the Site. Such carriers shall carry liability insurance in
the face amount of at least $5,000,000.00 per occurrence. All such insurance
shall cover Lessee's employees, agents and invitees while in, on or about the
Site and while traveling to and from the Site, including losses attributable to
the presence of the Equipment, Lessee's employees, agents or invitees while in,
on or about the Site. Lessee shall be solely responsible for procuring and
maintaining property insurance on the Equipment.
12. Indemnification. Lessee shall indemnify, defend and hold harmless
Lessor and any officer, director, employee, contractor, agent or affiliate of
Lessor (collectively, a "Lessor Related Party") from and against any and all
liabilities, obligations, damages, claims, suits, losses, causes of action,
liens, judgments and expenses (including court costs, attorneys' fees and costs
of investigation) or any kind, nature or description resulting from any
injuries to or death of any person or any damage to the Site which either (i)
arises from or is claimed to arise from any act, omission or negligence of
Lessee or any employee, officer, contractor, agent, subtenant, guest, licensee
or invitee of Lessee; (ii) arises from a breach, violation or nonperformance of
any term, provision, covenant or agreement of Lessee hereunder or a breach or
violation by Lessee of any court order or any law, regulation or ordinance of
any federal, state or local authority; or (iii) arises from the activities of
Lessee in and around the Site or the operations or conduct of Lessee's business
upon the Site (collectively, the "Claims"), except to the extent such Claims
are directly caused by the gross negligence or willful misconduct of Lessor. If
any such Claim is made against Lessor, Lessee shall at its sole cost and
expense defend such Claim by or through attorneys satisfactory to Lessor. In
resolving or settling any Claim, Lessee shall obtain a release of such Claim
made against Lessor or any Lessor Related Party. The indemnity obligations of
Lessee are in addition to Lessee's obligations to obtain and maintain insurance
as otherwise provided herein.
Lessee specifically agrees to look solely to Lessor's interest in the
Site for the recovery of any judgment against Lessor.
13. Limits on Liability. Lessor shall have no liability to Lessee
or any other party for any loss allegedly occasioned by the nontransmission
or partial transmission of Lessee's data or damage to the Equipment by reason
of the physical collapse of a tower or antennas, breakdown of a transmitter
or its components, failure or inability of Utah Power and Light Company to
supply electrical power, failure of Lessor's emergency generator, acts of
God, sabotage, earthquake, fire, theft, burglary, windstorm or any other
hazard (natural or man-made), strikes or walkouts,cancellation of Lessee's
licenses or any other cause beyond Lessor's control. Lessor shall have no
28
liability to Lessee or any other party and Lessee shall indemnify Lessor from
and against all claims, costs and expenses for non-ionizing radiation claimed
to originate as a result of Lessee's operations at the Site.
14. Lessor's Facilities. Lessor shall have first call on personnel
and all Lessor's equipment at the Site, which personnel and/or equipment may be
temporarily limited by reason of personnel or power shortage and/or demand for
reconstruction following a general breakdown caused by acts within or beyond
Lessor's control. Lessor's emergency power supply equipment at the Site will
not be available to Lessee in the event of a Utah Power and Light Company
failure, except as otherwise provided in Schedule O.
15. Property Tax. Lessee shall be responsible for any property
taxes which arise from the operation of the Equipment at the Site. Lessee
acknowledges that the Equipment may be located in Salt Lake and/or Tooele
counties.
16. Late Charges. Any amount owing to Lessor from Lessee under this
Agreement that is thirty days past due shall be assessed a late charge of
$50.00 per invoice per month for each invoice totaling less than $500.00 and a
late charge of $200.00 per invoice per month for each invoice that is equal to
or greater than $500.00.
17. Road Maintenance Charge. Lessee acknowledges and agrees that an
annual charge shall be assessed by Lessor to Lessee to cover access roadway
maintenance and repairs. This cost shall be prorated among the various users of
the Xxxxxxxxxx Peak/Little Xxxxxxxxxx Peak areas and is due and payable from
Lessee on or before July 1st annually.
18. Notices. All notices to be given under this Agreement shall be in
writing and shall be deemed to have been given if delivered personally, mailed
by certified mail, return receipt requested, or delivered by recognized
commercial courier to the other party at its last known business address.
19. Governing Law. This Agreement shall be interpreted under and
governed by the laws of the State of Utah.
20. Environmental Representations and Warranties. Neither Lessee
nor Lessee's agents, contractors, authorized representatives or employees shall
engage in any of the following prohibited activities in, on or about the Site:
A. Cause or permit any releases, discharges or spills of
Hazardous Material on or from the Site;
B. Cause or permit any manufacturing, holding, handling,
retaining, transporting spilling, leaking, treating, disposing or
dumping of Hazardous Material in or on any portion of the Site;
C. Cause or permit to be located on the Site any underground or
above-ground tanks for the storage of fuel oil, gasoline and/or other
petroleum products or by-products;
D. Cause or permit any releases, discharges or spills of fuel
oil, gasoline and/or other petroleum products or by-products; or
29
E. Otherwise place, keep, or maintain, or allow to be placed,
kept or maintained, any Hazardous Material on any portion of the Site.
For purposes of this paragraph, "Hazardous Material" means any
radioactive, hazardous or toxic substance, material, waste or similar terms,
including, without limitation, petroleum and petroleum produce, the presence of
which at the Site or the discharge or emission of which from the Site or the
collection, storage, treatment or disposal of which is regulated by
governmental requirements or regulations.
The last paragraph 12 of this Lease shall not be applicable to any
representation, warranty or indemnification given to Lessee by Lessor pursuant
to the terms of this paragraph 20.
21. Waiver. The parties agree that the waiver of any breach of this
Agreement by either party shall in no event constitute a waiver as to any
further breach.
22. Headings. Headings on each paragraph of this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
23. Entire Agreement; Construction: This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements, contracts or other arrangements. No
amendments, modifications or supplements to this Agreement shall be binding
unless executed in writing by the parties hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first listed above.
KSL, a Division of Bonneville
International Corporation
By:__________________________
Its:_________________________
Loral Communication Systems
Corporation
By:__________________________
Xxxxxxx X. Xxxxxxx
Its: Vice President
30
Schedule A
The Premises are marked on the attached drawing of the site. The
Premises include approximately 210 square feet of space in the attic above the
kitchen in the transmitter building shown in the attached drawing for Lessee to
install one six foot antenna with associated equipment of Schedule B.
Attachment: Drawing KSLFPSD002 Site Plot Xxxxxxxxxx Peak
31
Schedule B
List of Lessee's Equipment
Item Description Qty.
---- ----------- ----
1 HP-83751B Frequency Generator 1
2 HP-8563E Spectrum Analyzer 1
3 HP-3488A Switch Control Unit 1
4 486 Personal Computer 1
5 Video Monitor 1
6 Parabolic Reflector, 6 ft. diameter 1
7 Antenna Feeds (C, X, and Ku) 3
8 Az/El Antenna Positioner 1
9 Antenna Positioner Control Unit 1
10 3 dB 90 degree Coaxial Hybrid 1
11 Coaxial Line Stretcher 2
12 Wideband Coaxial Low Noise Amplifier 1
13 Power Meter 1
14 Directional Coupler 1
15 24V DC Power Supply 1
16 Misc. Cables and Connectors
32
Schedule C
For the period November 1, 1995 through October 31, 1996, Lessee's
monthly rental payment shall be $1,000.00. If Lessee exercises its right to
extend this Agreement as set forth in paragraph 9, beginning November 1, 1996
and continuing every year thereafter, the monthly rental payment shall be
increased at the rate of five percent per year.
If Lessee increases and/or modifies the Equipment or otherwise
materially changes the nature of its operations at the Site, Lessor shall be
entitled to increase the monthly rental payment accordingly.
In addition to the above-described monthly rental payment, Lessee
shall pay Lessor the sum of $96.00 per month for access to one telephone line
to be provided by Lessor to Lessee.
33
Schedule I
Certificate of Insurance
CERTIFICATE OF INSURANCE ISSUE DATE
(MM/DD/YY)
02/15/96
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF
INFORMATION ONLY AND CONFERS NO RIGHTS
UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AMEND, EXTEND OR
Alexander & Alexander of ALTER THE COVERAGE AFFORDED BY THE
New York, Inc. POLICIES BELOW.
1185 Avenue of the
Americas COMPANIES AFFORDING COVERAGE
Xxx Xxxx, Xxx Xxxx 00000
TRANSPORTATION INSURANCE CO.
COMPANY
LETTER A
CONTINENTAL CASUALTY COMPANY
COMPANY
LETTER B
INSURED ZURICH INSURANCE COMPANY
COMPANY
LETTER C
COMPANY
LORAL COMMUNICATIONS LETTER D
SYSTEMS
M/S F1-E10 COMPANY
640 N. 0000 XXXX XXXXXX X
XXXX XXXX XXXX, XX 00000
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED
TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED
BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
34
CO LTR TYPE OF INSURANCE POLICY NUMBER
------ ----------------- -------------
B GENERAL LIABILITY GL 402521597
/x/ COMMERCIAL GENERAL LIABILITY
/_/_/ CLAIMS MADE /x/ OCCUR.
/_/ OWNER'S & CONTRACTOR'S PROT.
/x/ B.F. VENDORS
POLICY EFFECTIVE POLICY EXPIRATION LIMITS
DATE (MM/DD/YY) DATE (MM/DD/YY)
---------------- ------------------ ---------------------------------------
04/01/95 04/01/96 GENERAL AGGREGATE $ 2,500,000
PROD. COMP/OP AGG. $ 2,500,000
PERS. & ADV. INJURY $ 2,500,000
EACH OCCURRENCE $ 2,500,000
FIRE DAMAGE $ 50,000
(Any one fire)
MED. EXPENSE $ 5,000
(Any one person)
35
CO LTR TYPE OF INSURANCE POLICY NUMBER
------ ----------------- -------------
AUTOMOBILE LIABILITY BUA 802521600 A/S
A /x/ ANY AUTO BUA 002521599 TX
A /_/ ALL OWNED AUTOS PHYSICAL DAMAGE
/_/ SCHEDULED AUTOS COLL. DED. $500
/x/ HIRED AUTOS COMP. DED. $250
/x/ NON-OWNED AUTOS
/_/ GARAGE LIABILITY
/_/
POLICY EFFECTIVE POLICY EXPIRATION LIMITS
DATE (MM/DD/YY) DATE (MM/DD/YY)
---------------- ----------------- ---------------------------------------
04/01/95 04/01/96 COMBINED SINGLE $ 1,000,000
04/01/95 04/01/96 LIMIT
BODILY INJURY $
(Per person)
BODILY INJURY $
(Per accident)
PROPERTY DAMAGE $
36
CO LTR TYPE OF INSURANCE POLICY NUMBER
------ ----------------- -------------
C EXCESS LIABILITY AUO 684722502
/x/ UMBRELLA FORM
/_/ OTHER THAN UMBRELLA FORM
POLICY EFFECTIVE POLICY EXPIRATION LIMITS
DATE (MM/DD/YY) DATE (MM/DD/YY)
---------------- ----------------- ---------------------------------------
04/01/95 04/01/96 EACH OCCURRENCE $ 2,500,000
AGGREGATE $ 2,500,000
37
CO LTR TYPE OF INSURANCE POLICY NUMBER
------ ----------------- -------------
A WORKER'S COMPENSATION WC 802521594 (RETRO)
9 AND WC 802521595 (DED.)
EMPLOYERS' LIABILITY
POLICY EFFECTIVE POLICY EXPIRATION LIMITS
DATE (MM/DD/YY) DATE (MM/DD/YY)
---------------- ----------------- --------------------------------------
04/01/95 04/01/96 STATUTORY LIMITS
04/01/95 04/01/96
EACH ACCIDENT $ 1,000,000
DISEASE--POLICY
LIMIT $ 1,000,000
DISEASE--EACH EMP. $ 1,000,000
38
CO LTR TYPE OF INSURANCE POLICY NUMBER
------ ----------------- -------------
OTHER
POLICY EFFECTIVE POLICY EXPIRATION LIMITS
DATE (MM/DD/YY) DATE (MM/DD/YY)
---------------- ----------------- --------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS KSL, A DIVISION OF
BONNEVILLE INTERNATIONAL CORPORATION A UTAH CORPORATION ARE INCLUDED AS
ADDITIONAL INSUREDS BUT ONLY WITH RESPECT TO LIABILITIES ARISING OUT OF THE
LEASING OF PREMISES AT FAR FIELD TEST ANTENNA RANGE LOCATED ON THE OQUIRRH
MOUNTAINS RANGE IN SALT LAKE AND TOOELE COUNTIES, UTAH, COMMONLY KNOWN AS
XXXXXXXXXX PEAK BY THE NAME ISSUED.
CERTIFICATE HOLDER CANCELLATION
------------------ ------------
KSL SHOULD ANY OF THE ABOVE DESCRIBED
ATTN: XXXX XXXXX POLICIES BE CANCELLED BEFORE THE
BROADCAST HOUSE EXPIRATION DATE THEREOF. THE
55 NORTH 200 WEST ISSUING COMPANY WILL ENDEAVOR TO
X.X. XXX 0000 MAIL 30 DAYS WRITTEN NOTICE TO XXX
XXXX XXXX XXXX, XX 00000-0000 CERTIFICATE HOLDER NAMED TO THE
LEFT, BUT FAILURE TO MAIL SUCH
NOTICE SHALL IMPOSE NO OBLIGATION
OR LIABILITY OF ANY KIND UPON THE
COMPANY, ITS AGENTS OR
REPRESENTATIVES.
authorized representative
39
Schedule O
1. Requested Emergency Engineering/Technical Services. $50.00 per
hour. Hours shall be invoiced in tenths, with a minimum charge per request of
two-tenths of an hour.
2. Emergency Power Generator Use. This service is available only to
the capacity of the system. Tenants have priority based on their length of time
at the Site. Cost is $8.00/KVA (peak demand rate) per month. Should operation
time exceed fifty hours per year, an additional charge will be made to cover
the cost of additional fuel.
3. Use of Tools and Workshop. The room known as the PI room is
equipped with a work bench and tools, tool board, ladders, drill press,
grinder, extension power cords, goggles and face shield which may be used by
Lessee. Lessee shall be responsible for any loss, breakage or damage. The
cabinet labeled "Tenant Use" contains a minimal assortment of electronic test
equipment that is also available for use.
4. Specialized Equipment and Supplies. An additional charge will be
made for use of some items. The listing of such items is posted on the bulletin
board at the Site and use of these items is subject to permission of Lessor's
engineer on site.
5. Use of Parts and Supplies. Lessor does not stock, inventory, sell
or supply parts. In an emergency, the following rules apply:
A. The requested item must be available and not in immediate need
by Lessor;
B. Approval to use the item must be obtained from Lessor's
engineer on site; and
C. No exchange of money or parts will be allowed, but replacement
with identical and new parts on the basis of replace two items for any
one used within seven days.
40
Schedule S
Seniority
1. KSL-TV (Operations Began) . . . . . . . . . . . . 1952
2. KSFI (FM) . . . . . . . . . . . . . . . . . . . . Nov. 1, 1957
3. KISN (FM) . . . . . . . . . . . . . . . . . . . . Nov. 11, 1968
4. U.S. Government, Secret Service . . . . . . . . . Jun. 1, 1972
5. KSOP (FM) . . . . . . . . . . . . . . . . . . . . Sep. 15, 1973
6. KRSP (FM) . . . . . . . . . . . . . . . . . . . . Dec. 14, 1973
7. Utah Transit Authority . . . . . . . . . . . . . Nov. 3, 1976
8. Xxxxxxxx Electric . . . . . . . . . . . . . . . . Apr. 4, 1977
9. KBUL (FM) . . . . . . . . . . . . . . . . . . . . Jul. 1, 1977
10. KBER (FM) . . . . . . . . . . . . . . . . . . . . Xxx. 0, 0000
00. Utah Transit Authority . . . . . . . . . . . . . Dec. 1, 1978
12. KBZN (FM) . . . . . . . . . . . . . . . . . . . . Feb. 1, 1979
13. KRCL (FM) . . . . . . . . . . . . . . . . . . . . Aug. 30, 1979
14. Questar . . . . . . . . . . . . . . . . . . . . . Jun. 20, 1981
15. Precision Electronics . . . . . . . . . . . . . . Jun. 26, 1981
16. KKAT (FM) . . . . . . . . . . . . . . . . . . . . Mar. 23, 1983
17. GTE Airfone . . . . . . . . . . . . . . . . . . . Sep. 14, 1990
18. KUMT (FM) . . . . . . . . . . . . . . . . . . . . Aug. 20, 1991
19. Technivision Inc., dba Omnivision . . . . . . . . Mar. 1992
20. Clairtel Communications Group, L.P. . . . . . . . Jun. 15, 1992
21. SMR of Utah, Inc. . . . . . . . . . . . . . . . . Nov. 15, 1992
22. Family Stations, Inc. . . . . . . . . . . . . . . July 6, 1994
23. Heywood Engineering and Consulting . . . . . . . July 1, 1995
24. Loral Communications Systems . . . . . . . . . . Nov. 1, 1995
41
August 20, 1996
KSL, Division of Bonneville International
Broadcast House
55 North 000 Xxxx
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Subject: Lockheed Xxxxxx Tactical Systems, Inc.
Exercise of Option for the Far Field Test Antenna Range
Located on the Oquirrh Mountains Range in Salt Lake and Tooele
Counties, Utah, Commonly Known as Xxxxxxxxxx Peak
November 1, 1996 - October 31, 1998
Gentlemen:
Lockheed Xxxxxx Tactical Systems, Inc. formerly exercises its first two year
option for the subject Far Field Test Antenna Range for the period November 1,
1996 through October 31, 1998. The rental payment for the period November 1,
1996 through October 31, 1997 shall be $1,050/month plus the sum of $96/month
for access to one telephone line to be provided by Lessor. The rental payment
for the period of November 1, 1997 through October 31, 1998 shall be
$1,102.50/month plus the sum of $96/month for access to one telephone line to
be provided by Lessor.
Please indicate your concurrence with the above by signing below and returning
one of the two originals to us, letterhead address. Thank you.
Landlord Concurrence: Very truly yours,
KSL, a division of Bonneville
International Corporation LOCKHEED XXXXXX TACTICAL
SYSTEMS, INC.
By: LMC Properties, Inc. a Lockheed
Xxxxxx company its duly
authorized representative, per
CPS 420
By: _________________________ Xxxx X. Xxxxxxxx
Date: _______________________ Senior Manager, Real Estate
42
August 29, 1996
SENT BY FACSIMILE MACHINE
Xx. Xxxx Xxxxxxx
Lockheed Xxxxxx Tactical Systems, Inc.
0000 Xxxxxx Xxx, X/X X00
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Dear Xx. Xxxxxxx:
I write in follow-up to a telephone conversation yesterday with Xxxx
Xxxxxx in your Salt City, Utah office. During my conversation, I agreed, on
behalf of my client, KSL, a division of Bonneville International Corporation,
to extend the time in which Lockheed Xxxxxx Tactical Systems, Inc. may exercise
its option to renew that certain Lease Agreement dated March 18, 1996 from
August 31, 1996 to September 30, 1996.
Please contact me if you have any questions or comments concerning the
foregoing. Thank you for your attention to this matter.
Very truly yours,
Xxxx X. Xxxxxxx
BJH/tmp
43
October 9, 1996
KSL, Division of Bonneville International
Broadcast House
Attn: Xxx Xxxx
55 North 000 Xxxx
X.X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Subject: Lockheed Xxxxxx Corporation
Exercise of Option for the Far Field Test Antenna Range
Located on the Oquirrh Mountains Range in Salt Lake and
Tooele Counties, Utah, Commonly Known as Xxxxxxxxxx Peak.
November 1, 1996 - October 31, 1998
Dear Xx. Xxxx:
Lockheed Xxxxxx Corporation formally exercises its first two year option for
the subject Far Field Test Antenna Range for the period November 1, 1996
through October 31, 1998. The rental payment for the period November 1, 1996
through October 31, 1997 shall be $1,050/month plus the sum of $96/month for
access to one telephone line to be provided by Lessor. The rental payment for
the period November 1, 1997 through October 31, 1998 shall be $1,102.50/month
plus the sum of $96/month for access to one telephone line to be provided by
Lessor.
Please indicate your concurrence with the above by signing below and returning
one of the two originals to us at 000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000. Thank you.
Landlord Concurrence: Very truly yours,
KSL, a division of Bonneville
International Corporation LOCKHEED XXXXXX TACTICAL
SYSTEMS, INC.
By: LMC Properties, Inc. a Lockheed
Xxxxxx Company its duly
authorized representative, per
CPS 420
By: _________________________ Xxxx X. (Xxxx) Xxxxxxxx
Senior Manager, Real Estate
Date: _______________________
44
EXHIBIT B
DEFAULTS
45
