EXHIBIT 10.05.17.01
AGREEMENT
BETWEEN
XXXXXX X. XXXXXXXX III AND XXXX X. XXXXXXXX
AND XXXXXX X. XXXXXXXX AND XXXXX X. XXXXXXXX
AND
SALEM MEDIA OF OREGON, INC.
February 1, 1992
AGREEMENT made as of this first day of February, 1992, by and
between XXXXXX X. XXXXXXXX III AND XXXX X. XXXXXXXX AND XXXXXX X. XXXXXXXX AND
XXXXX X. XXXXXXXX ("Lessor"), and SALEM MEDIA OF OREGON, INC., an Oregon
corporation ("Lessee").
WHEREAS, Lessor owns certain land (the "Land") and a building thereon
(the "Building"), which Land and Building together comprise certain real
property described as Xxx 0 xxx 0, Xxxxxxxx Xxxx Addition, in the City of
Portland, County of Multnomah and State of Oregon (the "Real Property"); 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
---------
USE OF THE LEASED PREMISES
--------------------------
(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 broadcasting equipment (the
"Installations"). Lessee is fully familiar with the physical condition of the
Leased Premises
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and has received the same in good order and condition, and agrees that the
Leased Premises complies in all respects with all requirements of this
Agreement. Lessee shall use the Leased Premises 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
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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.
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SECTION 2
---------
TERM AND RENT
-------------
(a) The term of this Lease (the "Term") shall commence on
February 1, 1992 (the "Commencement Date") and shall expire on January 31, 2002
(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: Xxxxxx X. Xxxxxxxx III, 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:
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(i) During the first year beginning with the Commencement
Date, a base rent of Fifty-Two Thousand Eight Hundred Dollars
($52,800.00) per annum, in equal monthly installments of Four
Thousand Four Hundred Dollars ($4,400.00) (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)
through the nineteenth (19th) anniversaries of the Commencement Date.
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 month in which the
Commencement Date falls, in the Consumer Price Index for All Urban
Consumers, All Items, U.S. Cities Average [Base Year 1982/84=100]
("CPI") 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 the calendar month of the Adjustment Date and
the denominator of which shall be the CPI for the month in which the
Commencement Date falls. Notwithstanding the results of the foregoing
calculation, the monthly amount payable by Lessee hereunder shall not
in
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any event be less than the monthly 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 numbers 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 then 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
Leased Premises 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
---------
CHARGES AND UTILITIES
---------------------
(a) Lessee, at its sole expense, shall keep the Leased Premises and
the adjoining streets and ways in good and clean
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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 Leased Premises 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 Leased Premises 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
Building or any part thereof, provided that any alteration or addition (i) shall
not change the general character of the Building, or reduce the fair market
value thereof below its value immediately before such alteration or addition, or
impair its 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)
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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 Leased Premises 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 Leased Premises 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
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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 Leased Premises, provided that (i)
Lessee shall first make all contested payments, under protest if it desires,
(ii) neither the Leased Premises 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 Leased Premises 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.
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SECTION 4
---------
INSURANCE AND INDEMNIFICATION
-----------------------------
(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 One Million Dollars ($1,000,000.00) for injuries to
one person, One Million Dollars ($1,000,000.00) 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 One Million Dollars
($1,000,000.00); (ii) insurance with respect to the Building 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 Building 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
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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
Oregon 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
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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
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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
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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
---------
REPRESENTATIONS, WARRANTIES AND OTHER OBLIGATIONS
-------------------------------------------------
(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.
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(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.
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(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 monies 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.
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(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.
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(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").
Lessor represents and warrants its equipment and property at the Leased Premises
and the operation thereof do not and will not exceed 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
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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) In case of any material damage to or destruction of the Leased
Premises 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 Building
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 Building as nearly as possible to its value,
condition and character immediately prior to such damage or destruction.
(j) 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
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be relied upon by any prospective purchaser or mortgagee of the Real Property or
any part thereof.
(k) 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
-----------------
(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
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(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,
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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 proceedings 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
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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
-23-
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
-24-
interruption of or failure of any services, beyond the control of Lessor, to be
supplied by Lessor.
SECTION 10
----------
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
Leased Premises to inspect the same, to supply any service to be provided by
Lessor to Lessee hereunder, and to show the Leased Premises to prospective
purchasers, mortgagees, or lessees, to post notices of non-responsibility,
without abatement of rent, provided entrance to the Leased Premises 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
-25-
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 the Lessor's assignment of its
interest in and to this Lease.
SECTION 12
----------
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 that 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 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 the 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.
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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, as 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 Oregon.
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.
-27-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written.
LESSOR: LESSEE:
SALEM MEDIA OF OREGON, INC.
By:
----------------------------- ---------------------------------
XXXXXX X. XXXXXXXX III XXXXXX X. XXXXXXXX III
President
-----------------------------
XXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
XXXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
XXXXX X. XXXXXXXX
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written.
LESSOR: LESSEE:
SALEM MEDIA OF OREGON, INC.
/s/ Xxxxxx X. Xxxxxxxx III By: /s/ Xxxxxx X. Xxxxxxxx III
----------------------------- ---------------------------------
XXXXXX X. XXXXXXXX III XXXXXX X. XXXXXXXX III
President
/s/ Xxxx X. Xxxxxxxx
-----------------------------
XXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------
XXXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
XXXXX X. XXXXXXXX
-28-
CERTIFICATE OF UNANIMOUS CONSENT
OF
SALEM MEDIA OF OREGON, INC.
The undersigned, being all of the members of the Board of Directors of
Salem Media of Oregon, Inc. an Oregon corporation ("Corporation"), do hereby
consent to and adopt the following resolutions:
RESOLVED that the Corporation is hereby authorized and directed to
lease the real estate owned by Xxxxxx X. Xxxxxxxx III and Xxxx X. Xxxxxxxx
and Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx and located in Portland,
Oregon, pursuant to the terms of a lease in the form of and with the terms
and conditions set forth in the Lease Agreement attached hereto and
incorporated herein by reference; and
RESOLVED that the officers of the Corporation are hereby directed to
take any and all actions they deem necessary, advisable, convenient or
proper to carry out the intent of these resolutions.
IN WITNESS WHEREOF the undersigned have executed this certificate of
unanimous consent as of the 1st day of February, 1992.
/s/ Xxxxxx X. Xxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx III
---------------------------
Xxxxxx X. Xxxxxxxx III
