EXHIBIT 10.05.03
LEASE AGREEMENT
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This Agreement ("Agreement") is made as of the 19th day of February, 1997,
by and between XXXXXX X. XXXXXXXX III and XXXXXX X. XXXXXXXX (collectively
referred to herein as "Lessor") and XXXXX BROADCASTING, INC. ("Lessee").
WHEREAS, Lessor owns certain land (the "Land") and Lessee owns certain
improvements thereon (the "Improvements"), which Land and Improvements together
comprise certain real property, more particularly described as set forth in
Exhibit "A", which is attached hereto and made a part hereof (the "Real
Property"); and,
WHEREAS, Lessee desires to use said Real Property in operating its radio
station WTOF(FM), CANTON, OHIO; and,
WHEREAS, the parties are desirous of making a mutually suitable and
satisfactory agreement whereby Lessor will lease to Lessee the Real Property
(constituting the "Leased Premises") on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the following covenants, agreements,
conditions and representations, the parties hereto agree as follows:
SECTION 1
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USE OF THE LEASED PREMISES
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(a) Lessor, in consideration of the rents to be paid and covenants herein
contained, hereby leases to Lessee the Leased Premises.
(b) Lessee may use the Leased Premises for the operation of its radio
station, and, in connection therewith, for the installation, repair,
maintenance, operation, housing and removal of its Improvements and other
related broadcasting equipment (together comprising the "Installations").
Lessee is fully familiar with the physical condition of the Land and has
received the same in good order and condition, and agrees that the Land complies
in all respects with all requirements of this Agreement. Lessee shall use the
Land exclusively for purposes associated with the operation of a radio station.
(c) Lessee shall have the right from time to time to substitute Installations
of similar kind and character for those hereinabove specified, provided such
changes shall be approved in
advance by Lessor, and Lessor shall not unreasonably delay or withhold its
approval. In the event Lessee submits any such changes for Lessor's approval
and Lessor does not respond within thirty (30) days after Lessor's receipt
thereof, then such changes shall be deemed approved by Lessor, so long as such
changes otherwise comply with this Agreement, five (5) days after Lessor's
receipt of notice that it has not responded.
(d) Lessee shall have access to the Leased Premises twenty-four (24) hours
per day, seven (7) days per week, for the purpose of installing, maintaining and
repairing its Installations, provided that the contractors performing such work
are reasonably acceptable to Lessor.
(e) Lessor shall not be responsible for repairs or maintenance to the
Installations, except for repairs occasioned by the negligence of Lessor, its
agents, employees or contractors.
(f) During the Term (as hereinafter defined), Lessor and Lessee shall each
provide the other with a telephone number which, if called will ring at a
location that is staffed by their respective agents twenty-four (24) hours each
and every day, seven (7) days each and every week; and Lessor and Lessee shall
notify each other promptly in the event of any change in such telephone number.
(g) Lessee shall not use or permit the Leased Premises to be used by any
dangerous, toxic, noxious or offensive trade or business, or for any unlawful
purpose.
(h) Lessee shall not directly or indirectly create or permit to be created or
to remain, and will discharge any mortgage, lien, security interest, encumbrance
or charge on, pledge of or conditional sale or other title retention agreement
with respect to the Real Property or any part thereof or Lessee's interest
therein other than (i) this Agreement, (ii) any lien, including a mortgage on
the leasehold interest of Lessee, which may be approved by the Lessor in
writing, which approval shall not be unreasonably withheld, (iii) liens for
impositions not yet payable, or payable without the addition of any fine,
penalty, interest or cost for non-payment, or being contested as permitted by
Paragraph 3(d), below, and (iv) liens of mechanics, materialmen, suppliers or
vendors, or rights thereto, incurred in the ordinary course of business for sums
which under the terms of the related contracts are not at the time due, provided
that adequate provision for the payment thereof shall have been made.
SECTION 2
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TERM AND RENT
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(a) The term of this Lease (the "Term") shall commence on February 19, 1997
(the "Commencement Date"), and shall expire on June 30, 2007 (the "Expiration
Date"). If the Term has been extended as provided in subparagraph (b), below,
the Expiration Date shall be the last day of the Term as so extended.
(b) Lessee shall have the option, if Lessee is not at the time in default
under this Agreement, to extend the Term of this Agreement for up to two (2)
successive periods of five (5) years each (the "Extended Terms"), and, except as
set forth in subparagraph (c), below, on the same terms, covenants and
conditions herein contained. The word "Term" as used in this Agreement shall be
deemed to include the Extended Terms when and if the Agreement is extended. Each
option to extend the Term shall be exercised only by Lessee's delivery to Lessor
by United States mail on or before ninety (90) days prior to the commencement of
the renewal term of written notice of Lessee's election to extend as provided
herein.
(c) Lessee agrees to pay rent to Lessor from the Commencement Date through
the Expiration Date, or such earlier date as this Agreement is terminated as
provided herein, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attn:
Accounting, or to such other person or place as Lessor may designate from time
to time by notice to Lessee, in the following amounts and in the following
manner:
(i) During the first year beginning with the Commencement Date Lessee
shall pay a base rent of $12,000 per annum, in equal monthly installments of
$1,000 (the "Base Rent") in advance on the first day of each month; and
thereafter on each and every Adjustment Date (hereinafter defined) the monthly
rent shall be computed according to subparagraph (ii) below.
(ii) The term "Adjustment Date" shall mean the first (1st) day of
February following the Commencement Date and each subsequent anniversary of such
date this Agreement remains in effect. During the one (1) year period beginning
with each Adjustment Date, the monthly rent payable by Lessee shall reflect an
adjustment, as herein provided, for the change, if any, from the year in which
the Commencement Date falls, in the Consumer Price Index for Urban Wage Earners
and Clerical Workers, Los Angeles area [Base Year 1982-84=100] ("CPI") as
measured in February and published by the United States Department of Labor,
Bureau of Labor Statistics; i.e., during the one (1) year period beginning with
the Adjustment Date, the monthly rent shall be the product obtained by
multiplying the Base Rent times a fraction, the numerator of which shall be the
CPI for February of the year such Adjustment Date falls and the denominator of
which shall be the CPI for February of the year in which the Commencement Date
falls. Notwithstanding the results of the foregoing calculation, the amount
payable by Lessee hereunder shall not in any event be less than the rental paid
during the immediately preceding one (1) year period. In the event that the
Bureau of Labor Statistics shall change the base period for the CPI, the new
index number shall be substituted for the old index number in making the above
computation. In the event the Bureau of Labor Statistics ceases publishing the
CPI, or materially changes the method of its computation, Lessor and Lessee
shall accept comparable statistics on the purchasing power of the consumer
dollar as published at the time of said discontinuation or change by a
responsible financial periodical of recognized authority to be chosen by Lessor
subject to reasonable consent of Lessee.
(d) Rent and all other sums payable to Lessor hereunder shall be paid without
notice, demand, counterclaim, set-off, deduction or defense and without
abatement, suspension, deferment, diminution or reduction. Except as expressly
provided herein, Lessee waives all rights now or hereafter conferred by statute
or otherwise to quit, terminate or surrender this Agreement
or the Real Property or any part thereof, or to any abatement, suspension,
deferment, diminution or reduction of rent or any other sum payable by Lessee
hereunder.
SECTION 3
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CHARGES AND UTILITIES
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(a) Lessee, at its sole expense, shall keep the Real Property and the
adjoining streets and ways in good and clean order and condition and will
promptly make all necessary or appropriate repairs, replacements and renewals
thereof, whether interior or exterior, structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen. All repairs, replacements and renewals
shall be equal in quality and class to the original work. Lessee waives any
right created by any law now or hereafter in force to make repairs to the Real
Property at Lessor's expense. Lessee, at its sole expense, shall do or cause
others to do every act necessary or appropriate for the preservation and safety
of the Real Property whether or not the Lessor shall be required by any legal
requirement to take such action or be liable for failure to do so.
(b) If not at the time in default under this Agreement, Lessee, at its sole
expense, may make reasonable alterations of and additions to the Improvements or
any part thereof, provided that any alteration or addition (i) shall not change
the general character of the Improvements, or reduce the fair market value
thereof below their value immediately before such alteration or addition, or
impair their usefulness, (ii) is effected with due diligence, in a good and
workmanlike manner and in compliance with all legal requirements and insurance
requirements, (iii) is promptly and fully paid for by Lessee, (iv) is made, in
case the estimated cost of such alteration or addition exceeds Ten Thousand
Dollars ($10,000), under the supervision of an architect or engineer
satisfactory to Lessor and in accordance with plans, specifications and cost
estimates approved by Lessor, and (v) does not interfere with Lessor's rights of
use under this Agreement.
(c) Subject to subparagraph (d), below, relating to contests, Lessee shall
pay all taxes, assessments (including without limitation, all assessments for
public improvements or benefits, whether or not commenced or completed prior to
the date hereof and whether or not to be completed within the Term hereof),
ground rents, water, sewer or similar rents, rates and charges, excises, levies,
license fees, permit fees, inspection fees and other authorization fees and
other charges in each case, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including all
interest and penalties thereof), which at any time during or in respect of the
Term hereof may be assessed, levied, confirmed or imposed on or in respect of or
be a lien upon the Real Property or any part thereof or any rent therefrom or
any estate, right or interest therein, or any occupancy, use or possession of or
activity conducted on the Real Property or any part thereof, other than any
income or excess profits tax imposed upon the Lessor's general income or
revenues, but excluding any income or excess profits or franchise taxes of
Lessor determined on the basis of general income or revenue or any interest or
penalties in respect thereof. Lessee shall furnish to Lessor for inspection
within thirty (30) days after written request, official receipts of the
appropriate taxing authority or other proof satisfactory to Lessor evidencing
such payment. If by law any such amount may be paid in installments, Lessee
shall be obligated to pay only those installments as they become due from time
to time before any
interest, penalty, fine or cost may be added thereto; and any such amount
relating to the fiscal period of the taxing authority, part of which is included
within the Term and a part of which extends beyond the Term shall, if Lessee
shall not be in default under this Agreement, be apportioned between Lessee and
Lessor as of the expiration of the Term of this Agreement.
(d) Lessee, at its sole expense, may contest, after prior written notice to
Lessor, by appropriate legal proceedings conducted in good faith and with due
diligence, the amount or validity or application, in whole or in part, of any
tax, lien or other imposition on the Real Property, provided that (i) Lessee
shall first make all contested payments, under protest if it desires, (ii)
neither the Real Property nor any part thereof or interest therein nor any such
rents or other sums would be in any danger of being sold, forfeited, lost or
interfered with, and (iii) Lessee shall have furnished such security, if any, as
may be required in the proceedings or reasonably requested by Lessor.
(e) Lessee shall pay or cause to be paid all charges for all public or
private utility services and all sprinkler systems and protective services at
any time rendered to or in connection with the Real Property or any part
thereof, will comply with all contracts relating to any such services, and will
do all other things required for the maintenance and continuance of all such
services.
SECTION 4
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INSURANCE AND INDEMNIFICATION
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(a) Lessee shall, at its sole cost and expense, during the Term hereof,
obtain or provide and keep in full force for the benefit of Lessor, as an
additional named insured (i) general public liability insurance, insuring Lessor
against any and all liability or claims or liability arising out of, occasioned
by or resulting from any accident or other occurrence in or about the Real
Property arising out of any act or omission of Lessee or any officer, employee,
agent or contractor of Lessee, for injuries to any person or persons, with
limits of not less than Three Million Dollars ($3,000,000.00) for injuries to
one person, Five Million Dollars ($5,000,000.00) for injuries to more than one
person, in any one accident or occurrence, and for loss or damage to the
property of any person or persons, for not less than Five Million Dollars
($5,000,000.00); (ii) insurance with respect to the Improvements against loss or
damage by fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles, smoke and other risks from time to
time included under "extended coverage" policies, in an amount equal to at least
One Hundred Percent (100%) of the full replacement value of the Improvements
and, in any event, in an amount sufficient to prevent Lessor or Lessee from
becoming a co-insurer of any partial loss under the applicable policies, which
shall be written on a replacement cost basis; (iii) appropriate workers'
compensation or other insurance against liability arising from claims of workers
in respect of and during the period of any work on or about the Real Property;
and (iv) insurance against such other hazards and in such amounts as is
customarily carried by owners and operators of similar properties, and as Lessor
may reasonably require for its protection. Lessee shall comply with such other
requirements as Lessor, or any mortgagee, may from time to time reasonably
request for the protection by insurance of their respective interests. The
policy or policies of insurance maintained by Lessee pursuant to this Paragraph
shall be of a company or companies
authorized to do business in Ohio and a certificate thereof shall be delivered
to Lessor, together with evidence of the payment of the premiums therefor, not
less than fifteen (15) days prior to the commencement of the Term hereof or of
the date when Lessee shall enter upon the Leased Premises, whichever occurs
sooner. At least fifteen (15) days prior to the expiration or termination date
of any policy, Lessee shall deliver a certificate of a renewal or replacement
policy with proof of the payment of the premium therefor. Any such insurance
required by this Paragraph may, at Lessee's option, be provided through a
blanket policy or policies.
(b) Lessee shall indemnify Lessor and hold Lessor harmless from and against
all claims, actions, losses, damages, liabilities and expenses (including
reasonable attorneys' fees) incurred by or asserted against Lessor, whether
during or after the Term of this Agreement, including by reason of personal
injury, loss of life, or damage to property, caused by or resulting from in
whole or any material part, (i) any breach of this Agreement by Lessee, (ii) any
negligent or intentional act or omission of Lessee, its employees, agents,
invitees or contractors, whether in, on, about or with respect to the Leased
Premises or otherwise, (iii) the use by Lessee of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessee on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessee pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessee's request or this
Agreement; provided, however, that Lessee shall not be required to indemnify
Lessor for any damages, injury, loss or expense arising out of Lessor's or its
agents', employees', invitees' or contractors' negligent acts or omissions.
(c) If Lessor so elects by notice to Lessee, Lessee shall have the obligation
of defending, at its sole cost and expense, by counsel selected by Lessee and
approved by Lessor (such approval not to be unreasonably withheld), against any
claim to which the foregoing indemnity may apply. Lessor may assume, or require
that such defense be assumed, by Lessor and counsel selected by Lessor, at the
cost and expense of Lessee if Lessor is for any reason dissatisfied with the
defense by Lessee, or believes that its interests would be better served
thereby. In any case where Lessee is defending any such claim, Lessor may
participate in the defense thereof by counsel selected by it, but at Lessor's
expense. Lessee shall not enter into any settlement of any claim without the
consent of Lessor, which consent shall not be unreasonably withheld.
(d) Lessor shall indemnify Lessee and hold Lessee harmless from and against
all claims, actions, losses, damages, liabilities and expenses (including
reasonable attorneys' fees) incurred by or asserted against Lessee, whether
during or after the Term of this Agreement, including by reason of personal
injury, loss of life, or damage to property, caused by or resulting from in
whole or any material part, (i) any breach of this Agreement by Lessor, (ii) any
negligent or intentional act or omission of Lessor, its employees, agents,
invitees or contractors, whether in, on, about or with respect to the Leased
Premises or otherwise, (iii) the use by Lessor of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessor on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessor pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessor's request or this
Agreement; provided, however, that Lessor shall not be required to indemnify
Lessee for any damages, injury, loss or expense arising out of Lessee's or its
agents', employees', invitees' or contractors' negligent acts or omissions.
(e) If Lessee so elects by notice to Lessor, Lessor shall have the obligation
of defending, at its sole cost and expense, by counsel selected by Lessor and
approved by Lessee (such approval not to be unreasonably withheld), against any
claim to which the foregoing indemnity may apply. Lessee may assume, or require
that such defense be assumed, by Lessee and counsel selected by Lessee, at the
cost and expense of Lessor if Lessee is for any reason dissatisfied with the
defense by Lessor, or believes that its interests would be better served
thereby. In any case where Lessor is defending any such claim, Lessee may
participate in the defense thereof by counsel selected by it, but at Lessee's
expense. Lessor shall not enter into any settlement of any claim without the
consent of Lessee, which consent shall not be unreasonably withheld.
(f) Nothing in this Agreement shall be construed so as to authorize or permit
any insurer of Lessor or Lessee to be subrogated to any right of Lessor or
Lessee against the other. Each of Lessor and Lessee hereby releases the other
to the extent of its insurance coverage for any loss or damage caused by fire or
any of the extended coverage casualties, even if such fire or other casualty
shall be brought about by the fault or negligence of the other party or persons
for whose acts said party is liable.
SECTION 5
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REPRESENTATIONS, WARRANTIES AND OTHER OBLIGATIONS
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(a) Lessor represents and warrants that:
(i) The execution and performance of this Agreement shall not
constitute a breach or violation under any Agreement to which Lessor is a party.
(ii) To the best of Lessor's knowledge, there are no violations of any
federal, state, county or municipal law, ordinance, order, regulations or
requirement with respect to the Leased Premises, and as of the date of this
Agreement, no notice of any kind relating thereto (which would adversely affect
the transactions contemplated by this Agreement) has been issued by public
authorities having jurisdiction over the Leased Premises.
(iii) No person or party other than Lessor has a right to use the Leased
Premises for any purpose which would affect Lessee's right to use the Leased
Premises as contemplated hereunder.
(iv) Lessor has not received written notice of pending or contemplated
condemnation proceedings affecting the Leased Premises or any part thereof.
(v) To the best of Lessor's knowledge, there is no action, suit or
proceeding pending or threatened against or affecting the Leased Premises or any
portion thereof and Lessor has not received notice written or otherwise of any
litigation affecting or concerning the Leased Premises relating to or arising
out of its ownership, management, use or operation. Lessor shall give to Lessee
prompt notice of institution of any such proceeding or litigation.
(vi) To the best of Lessor's knowledge, there are presently no
proceedings for
overdue real estate taxes assessed against the Leased Premises for any fiscal
period.
(vii) Lessor shall promptly advise Lessee in writing of any written
notice received from any governmental authority to comply with the terms,
provisions and requirements of any local, state and federal laws, ordinances,
directives, orders, regulations and requirements which apply to any portion of
the Leased Premises or to any adjacent street or other public area or to the
maintenance, operation or use thereof.
(viii) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, have been duly and validly
authorized by all necessary actions on the part of Lessor (none of which actions
have been modified or rescinded and all of which actions are in full force and
effect). This Agreement constitutes a valid and binding agreement and
obligation of Lessor, enforceable in accordance with its terms.
(ix) Subject to liens and encumbrances of record, Lessor owns good and
marketable title in fee simple to the Real Property on which the Leased Premises
are located, and Lessor acknowledges that Lessee is relying upon the foregoing
representation and warranty in entering into this Agreement and in expending
moneys in connection herewith. Lessor shall not encumber or permit any
encumbrances, liens or restrictions on Lessee's Installations, except with the
prior written approval of Lessee.
(b) Each party shall comply in all material respects with all local, state
and federal laws, statutes, ordinances, rules, regulations, orders and decrees
that it knows to be applicable in connection with its activities and operations
at the Leased Premises, and Lessor shall require the same representation and
warranty from all additional users of the facilities at the Leased Premises.
(c) The parties agree that, during the Term of this Agreement neither party
shall intentionally do anything at the Leased Premises which will interfere with
or adversely affect the operations of the other party.
(d) In the event that during the Term of this Agreement there shall be an
actual condemnation or foreclosure and taking of all of the Leased Premises, or
a portion thereof such that it renders the premises unsuitable for broadcasting,
this Agreement may be terminated by written notice from either party to the
other and thereafter each of the parties shall be relieved of any future
liability to the other under this Agreement, except as to obligations accrued
and not yet discharged at the date of termination. Following any condemnation
or foreclosing order, Lessee may continue to use the property for operations
under the terms of this Agreement until Lessee finds and begins to utilize new
facilities or until prevented by the condemning or foreclosing authority from
utilizing the Leased Premises, whichever occurs first.
(e) Lessee represents and warrants that its Installations to be located on or
about the Leased Premises, together with the existence of the equipment of
Lessor, and the operation thereof do not and will not result in exposure of
workers or the general public to levels of radio frequency radiation in excess
of the "Radio Frequency Protection Guides" recommended in "American National
Standard Safety Levels With Respect to Human Exposure to Radio
Frequency Electromagnetic Fields, 300 KHz to 100 GHz," issued by the American
National Standards Institute ("Acceptable Radio Frequency Radiation Standards").
(f) Lessee covenants that it will not at any time during the Term of this
Agreement, transmit, store, handle or dump toxic or hazardous wastes anywhere at
or around the Leased Premises.
(g) Lessee shall promptly advise Lessor in writing of any written notice
received from any governmental authority to comply with the terms, provisions
and requirements of any local, state and federal laws, ordinances, directives,
orders, regulations, and requirements which apply to any portion of the Leased
Premises or to any adjacent street or other public area or the maintenance,
operation or use thereof.
(h) Lessee represents and warrants that the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
actions on the part of Lessee (none of which actions have been modified or
rescinded and all of which actions are in full force and effect). This
Agreement constitutes a valid and binding agreement and obligation of Lessee,
enforceable in accordance with its terms.
(i) Lessee warrants unto Lessor that the Improvements (including the radio
tower(s) located on the Real Property) are and will remain in material
compliance at all times during the Term and any Extension Term with all federal,
state, county, municipal, local, administrative and other governmental laws,
statutes, ordinances, codes, rules, regulations and orders pertaining thereto,
including, without limitation, to the extent applicable, all zoning laws and
building codes and all regulations of the Federal Aviation Administration
("FAA") and the Federal Communications Commission ("FCC").
(j) In case of any material damage to or destruction of the Real Property or
any part thereof, Lessee shall promptly give written notice thereof to Lessor
and any mortgagee, generally describing the nature and extent of such damage or
destruction. In case of any damage to or destruction of the Improvements or any
parts thereof, Lessee, whether or not the insurance proceeds, if any, on account
of such damage or destruction shall be sufficient for the purpose, at its sole
expense, shall promptly commence and complete the restoration, replacement or
rebuilding of the Improvements as nearly as possible to their value, condition
and character immediately prior to such damage or destruction.
(k) Lessee will execute, acknowledge and deliver to the Lessor, promptly upon
request, a certificate certifying that (i) this Agreement is unmodified and in
full force and effect (or, if there have been modifications, that the Agreement
is in full force and effect, as modified, and stating the modifications), (ii)
the dates, if any, to which rent and other sums payable hereunder have been
paid, and (iii) no notice has been received by Lessee of any default which has
not been cured, except as to defaults specified in said certificate. Any such
certificate may be relied upon by any prospective purchaser or mortgagee of the
Real Property or any part thereof.
(l) Lessor will execute, acknowledge and deliver to the Lessee or any
mortgagee, promptly upon request, a certificate certifying that (i) this
Agreement is unmodified and in full force and effect (or, if there have been
modifications, that the Agreement is in full force and effect, as modified, and
stating the modifications), (ii) the dates, if any, to which rent and other sums
payable hereunder have been paid, and (iii) whether or not, to the knowledge of
Lessor, there are then existing any defaults under this Agreement (and if so,
specifying the same). Any such certificate may be relied upon by any
prospective purchaser transferee or mortgagee of Lessee's interest under this
Agreement.
SECTION 6
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EVENTS OF DEFAULT
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(a) Any of the following events shall constitute a default on the part of
Lessee:
(i) The failure of Lessee to pay rent or additional rent, and
continuation of such failure for more than ten (10) days after Lessee's receipt
of written notice thereof from Lessor; provided, however, that Lessor shall not
be required to provide such written notice to Lessee more than twice in any
twelve (12) month period prior to declaring such failure to pay an event of
default; or
(ii) The failure of Lessee to cure any other default under the terms
hereof, and continuation of such failure to cure for more than thirty (30) days
after notice by Lessor, provided, however, that if the nature of Lessee's
default is such that more than thirty (30) days is required for its cure, then
Lessee shall not be deemed to be in default if Lessee has commenced such cure
within the thirty (30) day period, demonstrates to Lessor's reasonable
satisfaction that such default is curable and thereafter diligently prosecutes
such cure to completion; or
(iii) Lessee is finally and without further right of appeal or review,
adjudicated a bankrupt or insolvent, or has a receiver appointed for all or
substantially all of its business or assets on the ground of its insolvency, or
has a trustee appointed for it after a petition has been filed for Lessee's
reorganization under the Bankruptcy Act of the United States, or any future law
of the United States having the same general purpose, or if Lessee shall make an
assignment for the benefit of its creditors, or if Lessee's interest hereunder
shall be levied upon or attached, which levy or attachment shall not be removed
within twenty (20) days from the date thereof.
(b) If an event of default on the part of Lessee shall occur at any time,
Lessor, at its election, may give Lessee a notice of termination specifying a
day not less than thirty (30) days thereafter on which the Term of this
Agreement shall end, unless such default shall be cured within said period, or,
if the default is such that more than thirty (30) days is required for its cure,
unless Lessee has commenced such cure within said period. If such notice is
given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, but Lessee shall remain liable for the payment of rent during the full
period which would otherwise constitute the balance of the Term of this
Agreement; and without
prejudice to any other right or remedy which it may have hereunder or by law,
and notwithstanding any waiver of any prior breach of condition or event of
default hereunder, Lessor may re-enter the Leased Premises either by reasonable
force or otherwise, or dispossess Lessee, any legal representative of Lessee or
other occupant of the Leased Premises by appropriate suit, action or proceeding
and remove its effects and hold the Leased Premises as if this Agreement had not
been made.
(c) The failure of Lessor to cure any default under the terms hereof, and
continuation of such failure to cure for more than thirty (30) days after notice
by Lessee, shall constitute a default on the part of Lessor; provided, however,
that if the nature of Lessor's default is such that more than thirty (30) days
is required for its cure, then Lessor shall not be deemed to be in default if
Lessor has commenced such cure within the thirty (30) day period, demonstrates
to Lessee's reasonable satisfaction that such default is curable and thereafter
diligently prosecutes such cure to completion.
(d) If an event of default on the part of Lessor shall occur at any time,
Lessee, at its election, may give Lessor a notice of termination specifying a
day not less than thirty (30) days thereafter on which the Term of this
Agreement shall end, unless such default shall be cured within said period, or,
if the default is such that more than thirty (30) days is required for its cure,
unless Lessor has commenced such cure within said period. If such notice is
given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, and Lessee shall not be liable for payment of rent for any period after
such expiration.
SECTION 7
---------
ASSIGNMENT
----------
Lessee shall not assign this Agreement nor sublet any portion of the Leased
Premises without the prior written consent of the Lessor, which consent shall
not be unreasonably withheld. Notwithstanding any assignment or sublease,
Lessee shall remain primarily liable under this Agreement.
SECTION 8
---------
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
--------------------------------------------
This Agreement shall not be a lien against the Leased Premises in respect to
any mortgages and security agreements placed or hereafter to be placed by Lessor
upon the Leased Premises. The recording of such mortgages and security
agreements shall have preference and precedence and be superior and prior in
lien to this Agreement, irrespective of the date of recording, and Lessee agrees
to execute any instruments, without cost, which may be deemed necessary or
desirable to further effect the subordination of this Agreement. Lessor shall
make a reasonable effort to obtain from any mortgagees or lenders holding an
interest in the nature of a mortgage in the Leased Premises an agreement that
the mortgagee or lender shall not disturb
Lessee's quiet possession in the event of foreclosure. If any proceedings are
brought for foreclosure, or in the event of the exercise of the power of sale
under any mortgage or deed of trust made by the Lessor encumbering the Leased
Premises, Lessee shall attorn to the purchaser upon any such foreclosure or sale
and recognize such purchaser as the Lessor under this Lease.
SECTION 9
---------
NON-LIABILITY OF LESSOR
-----------------------
Lessor shall not be liable for any damages or injury which may be sustained by
Lessee or any other person by reason of the failure, breakage, leakage or
obstruction of the water, sewer, plumbing, roof, drains, leaders, electrical,
air conditioning or any other equipment; or by reason of the elements; or
resulting from the carelessness, negligence or improper conduct of Lessee, its
agents, employees, contractors, invitees, assignees or successors; or
attributable to any interference with or the interruption of or failure of any
services, beyond the control of Lessor, to be supplied by Lessor.
SECTION 10
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QUIET ENJOYMENT
---------------
(a) Lessor agrees that it shall not enforce any unreasonable rules or
regulations which would unduly prejudice the conduct of Lessee's business, or
which would prevent full and free access to the Leased Premises by Lessee, as
herein provided.
(b) Lessor reserves and shall at all times have the right to re-enter the
Real Property to inspect the same, to supply any service to be provided by
Lessor to Lessee hereunder, and to show the Real Property to prospective
purchasers, mortgagees, or lessees, to post notices of non-responsibility,
without abatement of rent, provided entrance to the Real Property shall not be
denied Lessee.
SECTION 11
----------
SALE OF LEASED PREMISES BY LESSOR
---------------------------------
Notwithstanding any of the provisions of this Lease, Lessor (a) may assign, in
whole or in part, Lessor's interest in this Lease and (b) may sell all or part
of the Real Property. In the event of any sale or exchange of the Leased
Premises by Lessor and assignment by Lessor of this Lease, Lessor shall be and
is hereby relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Leased Premises occurring after the
consummation of such sale or exchange and assignment, but only upon the
condition that, as part of such sale or exchange, Lessor will cause the grantee
to agree in writing to assume to carry out any and all of the covenants and
obligations of Lessor under this Lease occurring after the consummation of
Lessor's assignment of its interest in and to this Lease.
SECTION 12
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BROKERAGE
---------
The parties acknowledge and agree that this Agreement has not been brought
about as a result of the services of any real estate broker, firm or
corporation, and each indemnifies and saves the other harmless from any and all
claims from any person(s) claiming to have rendered real estate services in
connection with this Agreement.
SECTION 13
----------
SURRENDER OF PREMISES
---------------------
Upon the expiration of the Term hereof, Lessee shall surrender the Leased
Premises, and, at Lessor's option, all interest of the Lessee in and to the
Improvements (including the radio towers located on the Land), to Lessor in good
order and condition, reasonable wear and tear excepted. Any equipment,
fixtures, goods or other property of Lessee not removed within ten (10) days
after any quitting, vacating or abandonment of the Leased Premises, or upon
Lessee's eviction therefrom, shall be considered abandoned, and Lessor shall
have the right, without notice to Lessee, to sell or otherwise dispose of same
without having to account to Lessee for any part of the proceeds of such sale.
SECTION 14
----------
NOTICES
-------
All notices, demands, and requests required or permitted to be given hereunder
shall be in writing and sent certified mail, return receipt requested, and if to
Lessor, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attn: Xxxxxx
X. Xxxxxxxx III, and if Lessee, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx,
XX 00000, Attn: Accounting. Either party hereto may change the place for
notice to it by sending like written notice to the other party hereto.
SECTION 15
----------
BINDING NATURE
--------------
The provisions of this Agreement shall apply to, bind and inure to the benefit
of Lessor and Lessee, their respective successors, legal representatives or
assigns. The terms of this Agreement and any disputes arising therefrom, shall
be governed by the laws of the State of Texas.
SECTION 16
----------
ENTIRE AGREEMENT
----------------
This Agreement contains the entire understanding and agreement between the
parties. No representative, agent or employee of Lessor has been authorized to
make any representations or promises with reference to the within agreement or
to vary, alter or modify the terms hereof. No additions, changes or
modifications shall be binding unless reduced to writing and signed by the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
LESSOR: LESSEE
XXXXX BROADCASTING, INC.
/s/ XXXXXX X. XXXXXXXX, III /s/ XXXX X. XXXXXXXXX
-------------------------------- --------------------------------
XXXXXX X. XXXXXXXX, III XXXX X. XXXXXXXXX
Vice-President
/s/ XXXXXX X. XXXXXXXX
--------------------------------
XXXXXX X. XXXXXXXX
