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EXHIBIT 10.9
TOWER LEASE AGREEMENT
This Lease Agreement is made and entered into as of the 30th day of
December, 1998 by and between XXXXXXX BROADCASTING COMPANY OF NEW MEXICO,
L.L.C., a Missouri limited liability company ("Landlord"), and ACME TELEVISION
OF NEW MEXICO, L.L.C., a Delaware limited liability company ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the lessee of certain real property (the
"Premises") located on the Zia Indian Reservation in Xxxxxxxx County, New
Mexico, more particularly described on Exhibit A attached hereto, pursuant to a
lease (the "Ground Lease") with the Pueblo of Zia (the "Tribe"); and
WHEREAS, Landlord, at its sole cost and expense (except for payments
provided for in this Lease), is constructing on the Premises a communications
transmission tower (the "Tower") substantially as described in Exhibit 1 hereto
and a transmitter building (the building with any and all future additions
thereto, hereinafter the "Transmitter Building"); and
WHEREAS, the Tribe is the owner of the Premises and has leased the
Premises to Landlord; and
WHEREAS, Tenant is the Federal Communications Commission (the "FCC")
permittee of Television Station KWBQ-TV, Channel 19, Santa Fe, New Mexico (the
"Station") and desires to place and operate an analog antenna for the Station at
a location on the Tower (the "Antenna Space"), to install and to maintain at
Tenant's expense certain transmission lines from the Station's transmitter
equipment across or under portions of the Premises and through or upon the Tower
to the Antenna Space, and to occupy the Transmitter Building (the "Tenant's
Space") in which to locate the Station transmitter and related equipment; and
WHEREAS, Tenant requires other space on the Premises for the
installation of Tenant's generator and related fuel storage tank, an ancillary
broadcast microwave antenna, a two-way radio facility, power supply and
ancillary equipment and a down link earth station, with the further right to
interconnect such equipment with equipment in the Tenant's Space in the manner
provided herein; and
WHEREAS, Tenant has received a construction permit issued by the FCC
(the "Construction Permit") to locate its antenna on the Tower and to install
its transmitter in the Transmitter Building;
NOW, THEREFORE, in consideration of Tenant's obligation to pay rent and
in consideration of the mutual rights, obligations, terms, covenants, and
provisions hereof, the parties mutually agree as follows:
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ARTICLE I
LEASED PREMISES
(a) Lease Rights. Landlord, for and in consideration of the
covenants and conditions herein mentioned, reserved and contained, to be kept
and performed by Tenant, and the rents to be paid by Tenant hereunder, does
hereby grant to Tenant, for the rental periods described herein, and Tenant does
hereby take from Landlord for said periods, upon and subject to the covenants
and conditions herein contained, the following:
(1) Antenna Space. The Antenna Space for the installation
and operation of Tenant's Station KWBQ-TV television Channel 19 antenna
will be at the 980 foot level in the northwest position on the Tower as
described in Exhibit A hereto;
(2) Tenant's Space. The Tenant's Space within the
Transmitter Building for installation and operation of Tenant's
transmitter and related equipment shall be as depicted on Exhibit B
hereto and shall be for Tenant's exclusive use; and
(3) Additional Areas. Occupancy of additional areas of space
outside the Transmitter Building at locations mutually acceptable to
Landlord and Tenant for: (i) placement and use of Tenant's generator and
generator fuel tank (which shall comply with all applicable laws, rules
and ordinances); (ii) the installation and use of two auxiliary
broadcast microwave antennas up to eight feet in diameter at the 350
foot and 650 foot levels, respectively, on the Tower or as otherwise
agreed by the parties; (iii) the installation and use of a down link
earth station; (iv) the installation and use of a two-way radio or
telemetry facility; (v) the installation and use of a single mobile
telephone and/or telemetry antenna and line for the exclusive use by
Tenant on a non-commercial basis; and (vi) transmitter power supplies
and ancillary equipment, with the further right to install, maintain,
repair, replace and remove wires, transmission line or conduit for all
of the foregoing over courses mutually acceptable to Landlord and
Tenant; and
(4) Access. The right, in common with others, to use the
roadways constructed by Landlord to and on the Premises for ingress and
egress to and from the Transmitter Building and Tower as reasonably
necessary for purposes of Tenant's installation, removal, servicing,
maintenance and repair of Tenant's equipment therein; and
(5) Transmission Lines. The limited and non-exclusive right
to install and to maintain a waveguide transmission line having a
diameter of no more than 6 1/8 inches from the Tenant's Space to the
Antenna Space, generally on the Tower, all for the sole purpose of
enabling Tenant to conduct its broadcasting activities and related
studio-transmitter or down-link communications; and
(6) Utility Lines. The right, in common with others, at
Tenant's expenses, to connect to power, telephone and utility lines in
the Transmitter Building provided at the sole cost and expense of
Landlord, including any tariffs or easement charges of adjacent
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landowners; provided, however, Tenant shall also bear the actual costs
of any increase in the capacity of the power, telephone and utility
lines necessary to accommodate Tenant's use thereof but only if such
capacity significantly exceeds the specifications set forth on Exhibit C
hereto.
(7) Sanitation Facilities. Tenant shall have the right to
have and maintain at a location of Landlord's selection a combustible
toilet and such other sanitation facilities as may be desired by Tenant
or required by government authority. It is understood by Tenant that
Landlord does not provide, and has no obligation to provide, potable or
other water at the Leased Premises.
(8) DTV Antenna. During the term of this Lease, Tenant upon
30 days' notice to Landlord may install a digital television antenna
immediately below Tenant's analog antenna. Tenant's notice of intent to
install a digital antenna shall be accompanied by an engineering
analysis from a qualified, independent engineer showing the effect on
the Tower of Tenant's proposed digital antenna installation. Landlord
acknowledges that the Tower has been designed in contemplation of
Tenant's installation of a digital television antenna as described
herein and use of a 6 1/8 inch transmission line from ground level to
such antenna and Tenant shall be responsible for any additional
modification to the Tower not contemplated by the initial design and
caused by Tenant's installation of the digital television antenna and
transmission line. Rent for the digital antenna space shall be
determined as provided in Article III. The digital antenna shall be
subject to the same provisions of this Lease applicable to the analog
antenna originally installed on the Tower, including, without limit,
those provisions relating to construction, installation and maintenance;
(b) Use of Premises. Except as otherwise specifically stated herein,
all of the space, premises and rights granted under this Article I are demised
and leased on a limited and non-exclusive basis and are hereinafter sometimes
referred to as the "Leased Premises". Tenant's use of the Leased Premises shall
be limited to broadcasting activities and studio-transmitter and down-link
activities associated with the broadcast operations of the Station; and
(c) Representation by Landlord. Landlord covenants, represents and
warrants to Tenant as follows: (i) Landlord has a valid leasehold estate with
respect to the Premises pursuant to the Ground Lease for the entire term of this
Lease and any renewal term; (ii) Landlord has full power and authority to enter
into and carry out the terms of this Lease without any consents from third
parties; (iii) at such time as the Tower is made available to Tenant, the Tower
will be registered and in compliance with all applicable regulations of the
Federal Communications Commission and the Federal Aviation Administration; (iv)
subject to the provisions of Article XXI below, Landlord will complete
construction of the Tower as contemplated herein and make it ready for
installation of Tenant's antenna by February 1, 1999; and (v) the uses of the
Premises as provided herein are permitted by the Ground Lease. Following
execution of this Lease, Landlord shall promptly give notice to the Tribe in
accordance with the Ground Lease and provide Tenant with evidence of such
notice, which notice Landlord represents is the only notice required under the
Ground Lease for Tenant's non-disturbance protection.
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(d) Additional Microwave Antennas. Provided that Tenant elects to do
so and gives Landlord notice of such election within the first 36 months of the
term of this Lease, Tenant may install and use two additional microwave
antennas, not exceeding eight feet in diameter at the 400 foot and 600 foot
levels, respectively, on the Tower, provided that Tenant pays additional Rent of
$300 per month for each such antenna and pays the expenses for any design and
modifications in connection with the mounting of such antennas.
ARTICLE II
TERM
(a) TO HAVE AND TO HOLD the Leased Premises for a term commencing
February 1, 1999 (the "Commencement Date") and expiring at midnight on January
31, 2014, unless this Lease is sooner terminated as hereinafter provided in
accordance with the terms of this Lease. Tenant may extend this Lease for an
additional 15 year term by giving Landlord notice to such effect at least six
months prior to expiration of the initial term. Such renewal term shall be on
the same terms as the initial term except for a rent increase as provided in
Article III.
(b) Holding Over. If Tenant or anyone claiming under Tenant shall
remain in possession of the Leased Premises or any part thereof after the
expiration of the term of this Lease or any renewal thereof without any
agreement in writing between the Landlord and Tenant with respect thereto, prior
to acceptance of rent by Landlord, the person remaining in possession shall be
deemed a tenant at sufferance, and, after acceptance of rent by Landlord, the
party remaining in possession shall be deemed a tenant from month to month,
subject to the provisions of this Lease insofar as the same may be made
applicable to a tenancy from month to month. The rental during any such period
shall equal one hundred fifty percent (150%) of the rental in effect immediately
preceding such expiration.
ARTICLE III
RENT
(a) Rent. Commencing February 1, 1999 or upon commencement of
broadcasting, whichever first occurs, Tenant shall begin to pay Landlord for the
Leased Premises monthly rent in the amount hereinafter provided (the "Rent") on
or before the first day of each month, commencing with a prorated payment for
any portion of the month in which the Rent payments commence. The Rent shall be
$8,600 per month. Any other payments which are payable when invoiced hereunder
shall be due within twenty (20) days after Tenant's receipt of such invoice.
Effective February 1, 2004, the Rent shall be increased (but in no event
decreased) by a percentage equal to the percentage increase in the Consumer
Price Index, All Urban Consumers, Albuquerque Metropolitan Statistical Area (or
any successor or substitute index) (the "CPI"), from the Commencement Date,
provided that in no event shall such percentage increase exceed 25%. Effective
February 1, 2005 and each February 1 thereafter, the then effective Rent shall
be increased (but in no event decreased) by a percentage equal to the percentage
increase in the CPI over the immediately preceding calendar year, provided that
in no event shall such percentage increase exceed 5% in any year.
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(b) Additional Rent. Tenant shall pay Landlord during the term of
this Lease, as additional rent, all utility, diesel fuel, tax, and maintenance
expenses, including maintenance of the access road, associated with the
Premises, Tower and Transmitter Building and reasonably attributable, either
directly or as a Proportional Share, to Tenant (the "Additional Rent"). As used
in this Lease, "Proportional Share" means that share of the total common
expenses incurred by all users of the Leased Premises calculated by dividing the
space within the Transmitter Building occupied by each tenant by the total space
occupied by all tenants. Tenant's interest in the Transmitter Building at any
given time shall be that fraction determined by dividing the total number of
square feet in Tenant's Space by the total number of square feet in the
Transmitter Building. Landlord shall have the right to grant additional tenants
use of the Transmitter Building (other than in Tenant's exclusive space),
provided that such use shall not, in Landlord's sole reasonable discretion,
result in a material disturbance to Tenant's occupancy of Tenant's Space.
(c) Landlord shall maintain the Transmitter Building (but not the
interior portions of the Tenant's Space or any personal property of Tenant
including, but not limited to, Tenant's air conditioning and ventilation system
and auxiliary power generator) so as to comply with existing rules and
regulations imposed by any governmental authority having jurisdiction over the
ownership or operations of the same.
(d) Landlord shall be solely responsible for compliance with FCC
rules relating to marking, painting and lighting the Tower and all FAA
requirements.
(e) Tenant may install and maintain, at its own cost, an air
conditioning and ventilation system adequate for Tenant's intended use and
serving only Tenant's Space and an auxiliary power generator.
(f) Tenant may install in Tenant's Space in the Transmitter Building
and maintain, at its own cost, a monitored fire alarm system and security
system. The selection of the fire alarm system and security system shall be
subject to the prior approval of Landlord, which approval shall not unreasonably
be withheld or delayed.
(g) Digital Antenna Fee. If Tenant elects to install a digital
antenna on the Tower, the Rent shall increase to an amount equal to 200% of the
applicable Rent immediately prior to such installation. In the event the FCC
revokes Tenant's analog broadcast license and Tenant removes its analog antenna,
Rent for the digital antenna alone shall thereafter be adjusted to 60% of the
Rent for both digital and analog antenna upon removal of the analog antenna.
(h) Security Deposit. Within seven days after execution of this
Lease, Tenant shall pay Lessor the sum of $8,600 as a security deposit for
rental payments and any other amounts due Landlord. At such time as Tenant
installs a digital television antenna on the Tower, the security deposit shall
be increased by the initial monthly rent for such additional antenna. The
security deposit will be returned to Tenant upon any termination of this Lease
less any amounts due Landlord which are then unpaid.
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(i) Late Charge. Any Rent, Additional Rent or other payments due
under this Lease shall be subject to a late payment charge of 4% if not paid
within 10 days after the due date and shall accrue additional interest charges
at the from time to time prime rate of NationsBank, or any successor bank, if
not paid within 30 days after the due date, which interest shall begin to accrue
30 days after the due date.
ARTICLE IV
CONSTRUCTION, INSTALLATION AND USE OF LEASED PREMISES
(a) Tenant's Construction Permit. Tenant represents that it has
obtained its Construction Permit.
(b) Landlord's Regulatory Applications. Landlord represents that it
has received such approvals from the FCC, the Federal Aviation Administration
("FAA") and from all other appropriate governmental authorities for permits
necessary for the construction of the Tower and the Transmitter Building, both
of which shall be the sole and exclusive property of Landlord.
(c) Installation of Tenant's Equipment. Tenant, at Tenant's expense,
shall install Tenant's equipment in the Antenna Space, including the necessary
antennas and transmission lines from the Tenant's Space to the Antenna Space.
Tenant, at Tenant's expense may also install its generator, broadcast microwave
antennas, two-way radio facility, power supply and ancillary equipment and earth
station. In addition to the requirements of Article IV, all work on the Tower by
or on behalf of Tenant shall be performed in accordance with plans and
specifications and by contractors and riggers all approved by Landlord, which
approval shall not be unreasonably withheld or delayed, and shall be subject to
Landlord's reasonable requirements as to the circumstances, timing and sequence
of such work. Without limitation of the foregoing, all equipment installed by
Tenant on the Tower, including the mounting hardware used to attach such
equipment to the Tower, shall be designed to withstand a steady state wind load
of 50 PSF (equivalent to the force produced by a steady state wind speed of 112
MPH on flat surfaces) with such loading calculated under the assumptions of wind
direction leading to the greatest imposed wind loading and, further, of
equipment and its associated hardware being coated with ice having a radial
thickness of two inches. Prior to the commencement of any such work, Tenant
shall cause its contractor to obtain insurance otherwise meeting the
requirements of this Article but affording minimum protection of not less than
$2,500,000 in respect to personal injury or death to any one person, of not less
than $10,000,000 in respect to personal injury or death to any two or more
persons, and of not less than $5,000,000 for property damage. Certificates of
such insurance shall be provided to Landlord prior to the commencement of any
such work. The installation of Tenant's equipment shall be the responsibility of
and at the expense of Tenant under the supervision and direction of Landlord,
provided that, without limitation, and consistent with the Construction Permit,
Landlord may reasonably require changes in the installation method and process
to (1) ensure the structural integrity of the Tower, and (2) avoid interruption,
to the extent possible, of the broadcast activities of other users of the Tower.
All installation shall be consistent with good engineering practices in
compliance with all federal, state and other governmental requirements, and with
the use of the Leased Premises by Landlord and other existing tenants. Upon
completion of such installations, Tenant shall provide Landlord with a written
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certificate of Tenant's engineer certifying compliance with the foregoing
requirements. All installation costs reasonably incurred by Landlord hereunder
shall be chargeable to Tenant, at reasonably competitive rates in the area,
including any additional costs resulting from interruption of transmissions by
other tenants (but excluding consequential damages).
(d) In the event Landlord notifies Tenant that Tenant's construction
or installation is not in material compliance with any requirement of this
Lease, Tenant shall immediately cease such construction or installation until
such time as the issue is resolved and Landlord agrees that construction or
installation may continue.
(e) EXCEPT FOR SPECIFIC WARRANTIES SET FORTH HEREIN, NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, IS MADE BY LANDLORD WITH RESPECT TO THE
SUITABILITY OF THE TOWER AND RELATED FACILITIES FOR TENANT'S INTENDED USE
THEREOF.
(f) Prior Approval of Landlord. All construction and/or installation
done by or on behalf of Tenant and all maintenance, repair, removal or
relocation (which maintenance repair, removal or relocation shall be in
conformity with the equipment specifications set forth herein) of any of
Tenant's equipment on the Tower shall require the prior written approval of
Landlord, which approval shall not be withheld unreasonably. Request for such
approval shall be in writing and shall be furnished to Landlord at least 10 days
prior to the proposed work, provided that repairs of an emergency nature may be
requested and approved orally. Such requests shall state with reasonable
precision the type of equipment to be worked on, the manner and time of the work
to be performed and the precautions to be taken to avoid interference with
equipment or transmissions of others. Any such work must also be consistent with
the obligations of Tenant hereunder. All work on the Tower shall be performed by
qualified engineers, contractors, or riggers satisfactory to Landlord in its
sole discretion.
(g) All construction and/or installation done by or on behalf of
Tenant and all maintenance, repair, removal or relocation involving an
expenditure of Tenant of more than $2,500 (which maintenance, repair, removal or
relocation shall be in conformity with the equipment specifications set forth
herein) of any of Tenant's equipment on the Leased Premises other than the
Tower, of the type which requires notice to or the approval of the FCC, shall
require the prior written approval of Landlord, which approval shall not be
withheld unreasonably. Request for such approval shall be in writing and shall
be furnished to Landlord at least 10 days prior to the proposed work, provided
that repairs of an emergency nature may be requested and approved orally. Such
requests shall state with reasonable precision the type of equipment to be
worked on, the manner and time of the work to be performed and the precautions
to be taken to avoid interference with equipment or transmissions of others. Any
such work must also be consistent with the obligations of Tenant hereunder. All
work shall be performed by qualified duly licensed engineers or contractors
reasonably satisfactory to Landlord in its sole discretion.
(h) Access. Subject to paragraph (d) above, Tenant shall have a
right of access to the Tower at all reasonable times for inspection, repair,
maintenance and replacement of its equipment; provided, however, that (except as
may be provided elsewhere in this Lease) such access and
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activities shall not interfere with the use of the Tower by Landlord or any
tenant or user, or interrupt or otherwise adversely affect the continued
transmitting operations of Landlord or any other tenant or user. Landlord shall
have a right of access, at all reasonable times, for examination, inspection,
emergency repair or replacement of any of Tenant's equipment located in the
Transmitter Building; provided, however, that (except as may be provided
elsewhere in this Lease) such access and activity by Landlord shall not
interfere with the use of the Tower by Tenant or interrupt or otherwise
adversely affect the continued broadcast operation of Tenant. At the outset of
the term of the Lease, Tenant shall provide to Landlord duplicates of any keys
necessary to permit access to Tenant's equipment at said location; provided that
(i) Landlord will advise Tenant as to who receives any such duplicate keys, and
(ii) Tenant shall not be responsible for, any damages suffered by Landlord, its
employees or agents or other tenants entering Tenant's Space when Tenant is not
present, except Tenant shall be responsible if it fails to respond and appear at
the Leased Premises upon 24 hours advance notice or if it authorizes any such
entry by Landlord, its employees or agents or other tenants, except to the
extent such damages result from the negligence of Landlord, its employees or
agents.
(i) Condition of Tenant's Equipment. The equipment installed by
Tenant hereunder shall be and remain the property of Tenant, subject to the
rights of Landlord described in Articles III, IX, and XIII hereof. Except as
otherwise provided in this Agreement, Tenant shall be fully responsible for the
replacement, maintenance, modification, rearrangement and removal of its
equipment installed in or upon the Leased Premises, and Landlord shall have no
responsibility therefor. Tenant shall keep all of its equipment in safe
condition at all times and in compliance with all applicable statutes, rules,
regulations, orders, directives of any governmental body and other standards
pertaining thereto and pertaining to the Leased Premises. The manner of use and
the equipment and devices to be used for any installation, relocation and
removal of Tenant's equipment must be consistent with good engineering practices
and with the quiet and uninterrupted use and occupancy of the Leased Premises by
Landlord and other tenants. Tenant shall at all times keep Landlord's property
free and clear of any and all mechanic's liens or similar claims that might
arise by virtue of Tenant's maintenance, modification, removal or rearrangement
of its equipment installed on the Leased Premises and Tenant shall defend,
indemnify and save harmless the Landlord of, from and against any such claims,
or any costs or expenses, including reasonable attorneys' fees, Landlord may
incur in the defense or removal of any such claims. Consistent with the
Construction Permit, Landlord reserves the right, consistent with good
engineering practices, to approve or disapprove the manner of use and the
equipment and devices to be used for any installation, replacement, relocation
or removal of any equipment on the Tower and/or on the Premises. Upon completion
of any installation, relocation or removal of equipment by Tenant which is
subject to paragraph (e) above, Tenant shall promptly notify Landlord in
writing. Thereupon, Landlord, at its option, may inspect the installation,
removal or relocation of equipment to assure that it has been performed as
required by this paragraph (f) and if Landlord shall determine that the work has
not been so performed, Tenant shall remove and correct such work to the extent
and in the manner required by Landlord. Upon its failure to do so within five
days of written notification from Landlord, Landlord may remove and correct such
work, and Tenant shall, when invoiced, reimburse Landlord for all reasonable
costs and expenses thereof.
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(j) Replacement Equipment. Tenant, subject to the other provisions
of this Lease, may replace its antenna and/or transmission line within the
Antenna Space as long as the replacement antenna and the replacement
transmission line, cumulatively, do not have a greater wind and weight load than
do the original antenna and transmission line, unless prior approval has been
received from Landlord, which consent shall not be unreasonably withheld.
(k) Permitted Uses; Nuisances. Tenant shall use the Leased Premises
exclusively for its Station KWBQ-TV television Channel 19 broadcast activities
or digital broadcasting as contemplated hereby of a channel allotted to Tenant
by the FCC and shall not engage in the transmission of any other services
therefrom. Tenant shall not maintain, commit or permit any nuisance or unsafe
condition. If Tenant, upon five days' notice from Landlord, shall fail to remedy
any such nuisance or unsafe condition, Landlord may do the same, and Tenant
shall, when invoiced, reimburse Landlord for the costs and expenses thereof.
(l) Necessary Permits. Tenant, at its own cost and expense, shall
obtain and maintain in effect any and all permits, licenses and approvals that
may be required with respect to Tenant's equipment or activities by each
governmental authority having jurisdiction.
(m) Purchase Money Equipment Liens. Landlord acknowledges that
Tenant may finance the purchase of Tenant's equipment installed on the Tower and
Landlord agrees to subordinate any liens it may have to Tenant's equipment or
bank lenders with a security interest in the equipment, provided that such
lenders agree to indemnify and hold Landlord harmless from and against any loss,
liability, cost or expense resulting from removal of Tenant's equipment from the
Tower or other exercise of such lenders' rights and further agree that any
removal of Tenant's equipment from the Tower shall be performed by qualified
personnel in accordance with sound engineering practices.
ARTICLE V
TOWER MAINTENANCE AND REPAIR
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During the term of this Lease and in accordance with and subject to the
provisions of Article XIV as applicable, Landlord will (1) maintain the Tower so
as to comply with existing rules and regulations imposed by any governmental
authority having jurisdiction over its operation, and make any repairs and
modifications reasonably necessary to maintain the same in good condition and in
compliance with good broadcast engineering practices, and (2) maintain the
Transmitter Building (but not the interior portions of Tenant's Space) so as to
comply with existing rules and regulations imposed by any governmental authority
having jurisdiction over the ownership or operation of the same and make any
repairs and modifications reasonably necessary to maintain the same in good
condition and in compliance with good broadcast engineering practice. Tenant
shall reimburse Landlord, when invoiced by Landlord, for Tenant's Proportional
Share of maintaining the Premises (including the access road thereto), Tower and
Transmitter Building. Further, Tenant shall reimburse Landlord, when invoiced by
Landlord and presented with reasonable documentation therefor, for the cost of
any repairs or modifications occasioned by (i) the negligence of Tenant, its
agents, servants, employees, contractors or invitees; (ii) a defect or
malfunction in, or problem with, Tenant's system, equipment or any attachments
thereto; (iii) any safety hazard or violation of any applicable statute, rule,
regulation, order, directive or standard relating to, in or caused by Tenant's
system, equipment or any attachment thereto; (iv) changes or improvements to the
Tower or the Leased Premises requested in writing by Tenant, to the extent not
paid directly by Tenant; or (v) any violation or breach of any provision of this
Lease by Tenant or anyone acting under Tenant.
In the performance of its obligation to maintain and repair the Tower,
and to allow other tenants to install, remove, relocate, maintain and repair
their equipment, it may be necessary from time to time for Landlord to request
that Tenant temporarily cease transmission and broadcasting activities, to turn
off electrical power and/or to make other adjustments to its equipment and
operations. Landlord agrees, except in the case of emergencies, to give Tenant
24 hours' notice of such disruptions and to schedule and complete such work so
far as reasonably possible between 1:00 a.m. to 5:00 a.m., and Landlord will not
cause any interruption of Tenant's transmission and broadcasting activities
under this provision unless such interruption to Tenant's operations is required
by and consistent with good engineering practices. Landlord shall promptly and
diligently seek to remedy any condition requiring interruption of Tenant's
broadcasting and transmission activities. Tenant agrees to cooperate with
Landlord and to comply with and honor Landlord's reasonable requests for
temporary cessation of transmission and broadcasting activities, to turn off
electrical power and/or to make other adjustments to its equipment or operation,
as necessary, to allow for orderly performance and carrying out of such work.
Notwithstanding any other provision of this Lease, Landlord shall xxxxx Tenant's
Rent hereunder pro rata for any period of twenty-four hours that Tenant is
unable to broadcast its television signal and Landlord has not provided
"back-up" transmission capability. Tenant may terminate this Lease at any time
that it has been unable to transmit its television signal from the Tower for a
period of thirty (30) consecutive days, unless such inability is caused by
damage to or failure of Tenant's equipment. Tenant acknowledges that it is aware
that the safety of workers is of paramount concern in deciding the time when
Tenant must temporarily cease operations. Tenant agrees to abide by any work
rules or procedures for personnel access to the Tower which may be required by
Landlord for compliance with the policies and rules of the FCC. Landlord agrees
to abide by any work rules or procedures for personnel access to the Tower which
may be required by Tenant for compliance with the policies and rules of the FCC.
In the event Tenant fails to cooperate with Landlord and refuses to temporarily
cease operation,
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Landlord shall have the right to turn off the electric power to Tenant's
equipment as required to perform and carry out such work.
Landlord shall use its best efforts to secure the cooperation of all
tenants on the Tower to comply with and honor Landlord's reasonable requests for
temporary cessation of transmission and broadcasting activities, to turn off
electrical power and/or to make other adjustments to their equipment or
operations, as necessary, to allow for orderly performance and carrying out of
the installation, removal, maintenance and repair of Tenant's equipment and to
abide by any work rules or procedures for personnel access to the Tower which
may be required for compliance with the policies and rules of the FCC.
ARTICLE VI
INDEMNITY AND INSURANCE
(a) Indemnification by Tenant. Tenant hereby assumes all risk of and
responsibility for, and agrees to defend, indemnify and hold harmless Landlord,
its officers, directors, members, servants, employees and agents from and
against any and all claims, demands, suits and proceedings made or commenced by
any party against any of the foregoing, for loss of life, personal injury, loss
or damage to property or any and all other damages or loss caused by (i) the use
of the Tower, the Transmitter Building or the Premises by Tenant, its officers,
directors, members, agents, servants, employees or invitees, or (ii) the
performance by or carrying out by Tenant of any of the terms and conditions
hereof, or (iii) the failure of Tenant to perform any term, covenant or
condition required to be performed by Tenant hereunder, or (iv) any damage or
injury that may occur as a result of any unsafe condition, or of any negligent
installation or maintenance of Tenant's equipment to the extent such condition
or installation or maintenance is the responsibility of Tenant hereunder, or (v)
failure by Tenant to comply with any applicable statute, rule, regulation, order
or other standard pertaining to the use or installation of Tenant's equipment or
(vi) the overlap, if any, of aperture of Tenant's equipment with that of any
other tenant on the tower, and any radiation levels which are violative, or in
the future may be violative, of the applicable rules, regulations or policies of
the FCC or other regulatory agency caused by Tenant's equipment or the location
thereof on the Tower; and in all events from and against any and all judgments,
recoveries, settlements, costs, expenses and losses that may be incurred by any
indemnified party as a result of any such claim, demand, suit or proceeding,
including, but not limited to, reasonable attorneys' fees, court costs and
expenses incurred in responding to defending any such claim, demand, suit or
proceeding. Tenant hereby waives, to the furthest extent provided by law, any
immunity or limited liability to which it may be entitled under applicable
workers' compensation laws with respect to loss or injury to its own employees.
If any suit or proceeding shall be instituted against Landlord for which
indemnification would be required under the provisions of this Article, Landlord
shall, with reasonable promptness, give written notice of same to Tenant.
Subject always to Tenant's demonstration to Landlord's reasonable satisfaction
of Tenant's continuing financial capacity to respond to any resulting indemnity
obligations hereunder, Tenant shall have the right (but not the obligation) to
assume the defense of the case at Tenant's sole and separate expense; provided,
however, that, at Landlord's
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expense, Landlord shall be entitled to designate counsel of its choosing to
associate with Tenant's counsel in the defense of said proceeding. Landlord
shall cooperate fully in all respects with the Tenant in any defense, compromise
or settlement, including, without limitation, providing Tenant with all
pertinent information under the control of Landlord. If after such notice Tenant
does not assume control of such defense, Landlord shall conduct such defense and
Tenant shall be kept informed and be consulted by Landlord with respect to the
litigation but shall be bound by the results obtained by Landlord insofar as the
claim against Landlord is concerned. Landlord shall provide Tenant with timely
notice of Landlord's intention to settle any claim, and Tenant shall have the
right to approve or withhold approval of any such settlement. If Landlord fails
to obtain Tenant's prior written consent to any such settlement, Landlord shall
be deemed to have released Tenant from its obligation to indemnify Landlord with
respect to such claim.
(b) Indemnification by Landlord. Except as provided in Articles VII
and XXII of this Lease, Landlord hereby assumes all risk of and responsibility
for and agrees to indemnify and hold harmless Tenant, its officers, directors,
members, employees and agents from and against any and all losses, and all
claims, demands, suits and proceedings made or commenced by any third party
against any of the foregoing, for loss of life, personal injury, loss or damage
to property or other damage caused by (i) the negligence or intentional act(s)
or omission(s) of Landlord or its agents, servants or employees arising in the
course of the performance by this Lease; (ii) the failure of Landlord to perform
any material term, covenant or condition required to be performed by Landlord
hereunder or (iii) the breach of any warranty by Landlord herein, and in such
events from and against any and all judgments, recoveries, settlements,
reasonable costs and expenses and losses that may be incurred by any indemnified
party as a result of any such claim, demand, suit or proceeding, including but
not limited to reasonable attorneys' fees, court costs and expenses incurred in
responding to or defending any such claim, demand, suit or proceeding.
Notwithstanding the foregoing, Landlord shall not be liable for consequential
damages, including without limit lost revenues from Tenant's inability to
transmit or broadcast.
If any suit or proceeding shall be instituted against Tenant for which
indemnification would be required under the provisions of this Section VI(b),
Tenant shall, with reasonable promptness, give written notice of same to
Landlord. Landlord shall have the right (but not the obligation) to assume the
defense of the case at Landlord's sole and separate expense; provided, however,
that, at Tenant's expense, Tenant shall be entitled to designate counsel of its
choosing to associate with Landlord's counsel in the defense of said proceeding.
Tenant shall cooperate fully in all respects with the Landlord in any defense,
compromise or settlement, including, without limitation, providing Landlord with
all pertinent information under the control of Tenant. If after such notice
Landlord does not assume control of such defense, Tenant shall conduct such
defense and Landlord shall be kept informed and be consulted by Tenant with
respect to the litigation but shall be bound by the results obtained by Tenant
insofar as the claim against Landlord is concerned. Tenant shall provide
Landlord with timely notice of Tenant's intention to settle any claim, and
Landlord shall have the right to approve or withhold approval of any such
proposed settlement. If Tenant fails to obtain Landlord's prior written consent
to any such settlement, Tenant shall be deemed to have released Landlord from
its obligation to indemnify Tenant with respect to such claim.
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(c) Workers' Compensation Insurance. Before commencing any
installation, maintenance work or removal on the Premises, Tenant shall procure
and thereafter maintain at Tenant's expense, worker compensation insurance
coverage with a responsible insurance company, qualified to do business in New
Mexico, reasonably satisfactory to Landlord. Said insurance shall provide for
the payment of compensation in accordance with the laws of the State of New
Mexico for all workers hired or employees employed by Tenant or its contractors
or subcontractors, and shall further insure Landlord against any and all
liability for personal injury or death for such workers and employees. Prior to
the commencement of any such installation, maintenance, work or removal, Tenant
shall provide Landlord with a certificate of insurance, which certificate shall
contain a provision for 30 days prior written notice to Landlord of any
cancellation or change.
(d) Tenant's Liability Insurance. Tenant shall procure and maintain,
at Tenant's expense, throughout the term, a policy or policies of comprehensive
general liability insurance, with contract liability coverage, with respect to
all of Tenant's operations and activities on the Premises, including but not
limited to operations of contractors and the operation of vehicles and equipment
and negligence of Tenant, and naming Landlord and Tenant as co-insured, with
premium thereon being fully paid in advance, issued by and binding upon a
responsible insurance company qualified to do business in the State of New
Mexico and reasonably satisfactory to Landlord. Such insurance shall afford
minimum protection of not less than $2,500,000 with respect to personal injury
or death to any one person, of not less than $10,000,000 for injury or death for
two or more persons, and not less than $5,000,000 for property damage. Each of
the foregoing limitations shall be for each occurrence and shall not be an
aggregate limit under the policy. Tenant shall obtain such additional insurance
and/or increase the foregoing limits as Landlord may, from time to time,
reasonably require by written notice. Tenant shall also cause any contractors or
subcontractors performing any work on the Tenant's equipment and/or making
repairs or changes thereto, or otherwise performing work on behalf of the
Tenant, to procure comprehensive public liability insurance complying with this
paragraph and Article IV(e), if applicable. Prior to any use or occupancy of the
Leased Premises including but not limited to performance of any work on the
Leased Premises and thereafter prior to the expiration of any applicable policy
or the performance of any work, Tenant shall give Landlord a certificate of
insurance for each insurance policy required in this subsection and said
insurance certificate shall contain a provision for 30 days prior written notice
to Landlord of any cancellation or change.
(e) Landlord's Rights to Procure Liability Insurance. If Tenant
shall fail to procure or maintain the insurance policies required in this
Article or shall fail to cause its contractors or subcontractors to procure and
maintain such insurance policies, Landlord may, but it shall not be obligated
to, procure and maintain such insurance policies, and Landlord may, but it shall
not be obligated to, procure and maintain such policies at Tenant's expense. Any
amounts paid by Landlord for such insurance shall be paid by Tenant to Landlord
when invoiced.
(f) Limitation. Nothing in this Article shall be deemed to impair,
decrease, modify or otherwise affect the obligations of any party under any
other provision of this Lease Agreement.
ARTICLE VII
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RISK OF LOSS; LOSS OF USE
Except as otherwise provided in this Agreement, Tenant shall have the
full risk of loss from any and all causes for all of its equipment located or
installed in, on or around the Leased Premises. Except as otherwise provided in
this Agreement or in the case of Landlord's gross negligence or intentional
misconduct, Landlord shall have no responsibility and shall not be liable for
damage or destruction thereto, or for losses resulting from any such damage or
destruction.
Except as otherwise provided in this Agreement or in the case of
Landlord's gross negligence or intentional misconduct, Landlord shall not be
liable to Tenant or anyone claiming under or through Tenant for any loss or
damage caused by the acts or omissions of any other tenants of the Premises or
the malfunctioning or interruption of any service, utility, facility or
installation supplied by Landlord or any other party.
IN NO EVENT SHALL LANDLORD BE LIABLE FOR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST REVENUES RESULTING FROM TENANT'S INABILITY TO
TRANSMIT OR BROADCAST, UNDER ANY CIRCUMSTANCES, AND TENANT FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS HEREBY EXPRESSLY WAIVES ALL SUCH CLAIMS OF CONSEQUENTIAL
DAMAGES WITH RESPECT TO THIS LEASE, THE LEASED PREMISES OR ANY PART THEREOF, OR
TENANTS OPERATIONS HEREUNDER, AND HEREBY EXPRESSLY RELEASES, RELIEVES AND
DISCHARGES LANDLORD OF AND FROM ANY SUCH CLAIMS.
Landlord shall procure replacement cost fire and extended coverage
insurance with respect to the Transmitter Building. Such policy shall provide
for such deductibles, endorsements or other features as a qualified insurance
advisor (which may be Landlord's regular insurance advisor) selected by Landlord
shall recommend. Landlord shall invoice each tenant, including Tenant hereunder,
its proportionate share of such insurance in accordance with the proportions
established in Article III. Landlord shall be designated as sole loss payee and
insurance trustee in connection with any such insurance policy, and Landlord
shall have the right to expend all or any portion of such proceeds in the
repair, reconstruction or replacement of the Transmitter Building in accordance
with Article VIII(b) hereof.
ARTICLE VIII
DESTRUCTION OR DAMAGE TO LEASED PREMISES
(a) Damage to Premises. If the Tower or the Transmitter Building
shall, with or without fault of the Landlord, by any cause be totally or
partially destroyed or damaged so as to cause total termination of broadcasting,
this Lease shall remain in force and effect, except that Tenant's obligation to
pay rent shall cease at the time of such termination of broadcasting and shall
not resume again until such time as Tenant is notified by Landlord that Tenant
may resume Tenant's broadcasting activities. Landlord shall repair, reconstruct
or replace the destruction or damage to the extent necessary to allow
broadcasting as soon as reasonably possible. Subject to Landlord's
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prior approval, such approval not to be unreasonably withheld or delayed, Tenant
shall have the right to install temporary transmission facilities prior to such
time.
Within 30 days after any damage to or destruction of the Tower and/or
Transmitter Building, Landlord shall notify Tenant whether it intends to
reconstruct, repair or replace the Tower and/or Transmitter Building. If
Landlord elects not to reconstruct, repair or replace the Tower and/or
Transmitter Building, this Lease shall terminate upon the giving of such notice
without further liability to either party. If Landlord elects to reconstruct,
repair or replace the Tower and/or Transmitter Building, Landlord shall
reconstruct, repair or replace the Tower within 90 days after notice to Tenant
of such election putting the Tower and Transmitter Building in such condition as
will comply with all of the terms and conditions of this Lease, provided that in
no event shall Landlord be responsible for any delay which may result from
governmental regulations, inability to obtain labor or materials or any other
cause beyond Landlord's reasonable control.
(b) Insurance Proceeds. The proceeds of any insurance which may be
collected by Landlord on account of any such damage or destruction shall be the
sole property of the Landlord, except for recovery for property of Tenant, in
which case, the proceeds shall be the sole property of Tenant.
ARTICLE IX
DEFAULT
(a) Lien or Encumbrance. It shall be the responsibility and
obligation of Tenant to pay all taxes imposed upon, or assessed with respect to,
Tenant's equipment including its antenna and transmission lines on the Tower and
its interest in the Transmitter Building. Tenant shall not allow any lien or
encumbrance to be placed against Landlord's property or the Transmitter Building
for failure to pay such tax or for failure to pay any other debt finally
resolved in judicial proceedings to be due, whether or not such person be a
taxing authority or other creditor. Tenant, at its expense, promptly shall take
all action necessary to obtain the release of any lien or encumbrance in such
circumstances. Any such claim or taxes may be contested in good faith if and so
long as Tenant shall post a bond against such tax lien or claim in form and from
a surety acceptable to Landlord and enforcement of such claim or taxes or loss
or forfeiture of Tenant to comply with this Article IX(a) may be declared a
default under this Lease by Landlord. Upon the occurrence and continuation of a
violation by Tenant under the provision of this Article IX(a), Landlord, in its
sole and absolute discretion, after giving not less than seven days written
notice to Tenant, shall have the right to pay any such tax, lien or incumbrance
on Landlord's property or upon the Transmitter Building, and any amounts so paid
by Landlord together with any reasonable expenses, including attorneys' fees,
incurred by Landlord in connection therewith shall be reimbursed by Tenant on
demand.
(b) Default Reentry. If Tenants fails to pay any rental or other
payment due hereunder when due within seven days after the date that notice of
such payment default is sent to Tenant, or Tenant fails to perform any of the
other terms, conditions or covenants of this Lease to be observed or performed
by Tenant for more than 30 days after notice of such other default shall be
received or delivery refused by Tenant, provided that if such default cannot
reasonably be cured within 30 days
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and Tenant is pursuing a cure with diligence, such cure period shall be 60 days,
or if Tenant suffers this Lease to be taken under any writ of execution or
otherwise, then Landlord, besides other rights or remedies it may have, shall
have the immediate right (i) to terminate this Lease or reenter and attempt to
relet without terminating this Lease and (ii) in either such event, to remove
all persons and property from the Leased Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of the Tenant,
all without service of notice or resort to legal process and without being
deemed guilty of trespass, or becoming liable for any loss or damage which may
be occasioned thereby.
(c) Application of Rent Deficiency. If Landlord, without terminating
this Lease, either (i) elects to reenter and attempts to relet, or (ii) takes
possession pursuant to legal proceedings, or (iii) takes possession pursuant to
any notice provided by law, then it may, from time to time make such alterations
and repairs as may be necessary in order to relet the Leased Premises or any
part thereof for such term or terms (which may be for a lesser or greater term
than the term of this Lease) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable. Upon
each such reletting, all rentals received by Landlord for such reletting shall
be applied, first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of recovering the Leased Premises and reletting the same, including
brokerage fees and reasonable attorneys' fees; third, to the payment of rent due
and unpaid hereunder, and the residue, if any, shall be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month are
less than that to be paid during that month by Tenant hereunder, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly when invoiced. No such reentry or taking possession of the Leased
Premises by Landlord shall be construed as an election on its part to terminate
this Lease unless a notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such breach, including the cost of recovering the Leased Premises,
reasonable attorneys' fees and the excess, if any, at the time of such
termination of the amount of rent and charges equivalent to rent reserved in
this Lease, discounted to present value, for the remainder of the stated term
over the then reasonable rental value of the Leased Premises for the remainder
of the stated term, all of which amounts shall be immediately due and payable
from Tenant to Landlord.
(d) Expense Reimbursement. In addition to any other remedies
Landlord may have at law or in equity and/or under this Lease, in the event an
action for damages, specific performance or other relief shall be instituted by
either party, in or out of bankruptcy, and Landlord is the prevailing party in
such action, in whole or in part, Landlord shall be entitled to and Tenant shall
pay upon demand all Landlord's reasonable costs, charges and expenses, including
but not limited to fees of counsel, agents and others retained by Landlord,
incurred by Landlord in connection with any such actions.
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In addition to any other remedies Tenant may have at law or in equity
and/or under this Lease, in the event of an action for damages, specific
performance or other relief shall be instituted by either party, in or out of
bankruptcy, and Tenant is the prevailing party in such action, in whole or in
part, Tenant shall be entitled to and Landlord shall pay upon demand all
Tenant's reasonable costs, charges and expenses, including but not limited to
fees of counsel, agents and others retained by Tenant in connection with any
such actions.
(e) Bankruptcy, Insolvency. Subject to the provisions of all
applicable law, if Tenant shall become bankrupt, file any debtor proceedings or
take or have taken against Tenant in any court pursuant to any statute either of
the United States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, which in the case of any involuntary proceeding
against Tenant that is not dismissed within 90 days, or if Tenant makes an
assignment for the benefit of creditors, or petitions for or enters into an
arrangement, then and in that event, this Lease shall at the option of Landlord
be cancelled and terminated and any party claiming on behalf of Tenant shall not
have any rights whatsoever under this Lease. In the event this Lease has been
assigned to a successor Tenant in accordance with Article XV hereof, the term
"Tenant" in this section (e) shall include only the Tenant under the most recent
of such assignments.
(f) No Waiver. No waiver of any covenant or condition or the breach
of any covenant or condition of this Lease shall be taken to constitute a waiver
of any subsequent breach of such covenant, nor shall the acceptance of rent by
Landlord at any time when Tenant is in default under any covenant or condition
hereof, be construed as a waiver of such default or of Landlord's right to
terminate this Lease on account of such default.
(g) Cumulative Remedies. The rights and remedies given to Landlord
by this Lease shall be deemed to be cumulative and no one of such rights and
remedies shall be exclusive at law or in equity of the rights and remedies which
Landlord might otherwise have by virtue of a default under this Lease, and the
exercise of one such right or remedy by Landlord shall not impair Landlord's
standing to exercise any other right or remedy.
(h) Landlord's Lien. Tenant hereby grants to Landlord, and Landlord
shall have, a landlord's lien on Tenant's equipment (or in the case of equipment
leased by Tenant, on Tenant's interest in the equipment) to secure payment of
all amounts due hereunder. Unless Landlord waives its lien in writing, Landlord
shall be entitled to possession, foreclosure, sale and all other remedies
provided by law in connection with such lien. However, in furtherance of such
rights or following waiver of those rights, Landlord may require Tenant to
remove its equipment within 30 days after termination of this Lease. Equipment
not so removed shall be deemed abandoned and shall become the property of
Landlord.
(i) Leasehold Mortgage. Landlord shall permit Tenant's lender and
Tenant to enter into and record a leasehold mortgage or similar interest with
the lender as mortgagor, on customary terms and conditions reasonably acceptable
to Landlord.
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ARTICLE X
RIGHT OF QUIET ENJOYMENT
Except as Tenant encounters interference as described at Article XIII
hereof, over which Landlord has no immediate control, Landlord covenants Tenant
shall be placed in possession of the Leased Premises at the commencement of the
term of this Lease, and that during such term, and any renewal thereof, Tenant
paying the herein stipulated rental and performing all of the terms and
provisions of this Lease Agreement shall peaceably hold and enjoy the Premises
without hindrance or interruption by Landlord, except that Landlord shall have
the right to enter upon the Leased Premises at all reasonable times for the
purpose of inspecting same or showing for sale or reletting or effecting new
construction or installations, repairs and replacements.
ARTICLE XI
CONDEMNATION AND DISMANTLING
(a) Condemnation. If the Leased Premises, or any part or portion
thereof, are condemned, or taken, or ordered dismantled, by any governmental
authority, agency or entity having the power of eminent domain or condemnation,
or other power to order dismantling, so as to make unusable the transmission
facilities used by Tenant, and if, in the case of a taking of less than all of
the Landlord's Premises, within 30 days after possession is taken by such
condemning authority, Landlord does not notify Tenant of Landlord's election to
restore the remaining portions of the Leased Premises so as to permit Tenant's
transmission facilities to be returned to usefulness within one year, then this
Lease shall terminate from the time possession is taken by the condemning
authority, or dismantling is begun, as the case may be, and Tenant shall have no
obligation for the payment of rent hereunder for any period after Tenant's
transmission facilities become unusable, except that any rent which has accrued
during any period prior thereto which is not yet fully paid shall become
immediately due and payable in full.
(b) Condemnation Award. With respect to the condemnation of all or
any portion of the Leased Premises, Tenant shall not be entitled, and hereby
waives any right, to share or participate in any condemnation award received by
Landlord or any holder or holders of mortgages, deeds of trust, fee simple
interests or other property interests in the Leased Premises. Unless Landlord
shall elect to restore the Leased Premises as provided in paragraph (a) hereof,
any condemnation award received by Tenant with respect to its interest in the
Transmitter Building shall belong to Tenant. If Landlord shall elect to so
restore, then such award shall be made available to Landlord to pay for the
costs of such restoration. If Landlord concludes, in Landlord's sole judgment
and discretion, that the sum of all condemnation awards turned over to Landlord
as provided above will be insufficient to complete such restoration, Landlord
shall assess each tenant its Proportionate Share (determined in accordance with
Article III) of the shortfall. Tenant shall pay such amounts to Landlord when
and as invoiced. Landlord shall have the right, but not the obligation, to defer
performance of any restoration work pending receipt of payment of such
assessment by tenants.
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(c) Modification of Lease Premises. Should any governmental
authority to order or direct Landlord to make any alteration of the Leased
Premises, any delay, disruption or hindrance caused to Tenant, its broadcasting,
transmission or business, occasioned thereby, shall not affect or impair
Tenant's obligation to pay Rent hereunder. Such required alterations shall be
made by Landlord as promptly as reasonably possible, provided that the costs of
any such alterations to the Transmitter Building shall be reimbursed by Tenant
for its Proportionate Share (determined in accordance with Article III), when
and as invoiced.
ARTICLE XII
REMOVAL OF EQUIPMENT
At any time during the term of this Lease, and upon expiration or
termination without default thereof, Tenant, if not in default hereunder, shall
have and is hereby granted the right to dismantle, disconnect and remove, at
Tenant's sole expense and in accordance with Article IV(e), any and all
equipment owned by Tenant which may be installed in or connected to the Tower,
the Transmitter Building, or the Premises; but such right shall not apply to
Tenant's proportionate interest in the Transmitter Building (the Tenant's Space)
which shall revert to Landlord on the expiration or earlier termination of this
Lease. If Tenant shall not have made written request of Landlord for the removal
of Tenant's equipment within 30 days from and after said expiration or
termination, such equipment and property shall be considered to be abandoned by
Tenant and become the property of Landlord. All expenses incurred by Landlord in
effecting such removal shall be paid by Tenant when invoiced.
ARTICLE XIII
INTERFERENCE
(a) Interference by Tenant. Tenant understands that Landlord intends
to grant to other tenants facilities and/or rights which are the same as, or
similar to, those granted herein to Tenant. Tenant will endeavor in good faith
to conduct its activities in accordance with sound electronic and engineering
practice and will cooperate with other tenants and potential tenants so as to
anticipate and prevent Interference. If any engineering statement is presented
to or by Landlord confirming that Tenant's broadcasting, transmitting or other
activities in or on any portion of the Leased Premises are causing Interference
to another tenant or Landlord, Tenant shall promptly and at its sole expense
correct the condition causing such Interference, provided that it shall
generally be the responsibility of a later tenant on the Tower to resolve
Interference problems with existing tenants, unless such existing tenant is not
operating in compliance with its FCC license or FCC rules and regulations.
(b) Interference to Tenant. Upon determination that any other tenant
is causing Interference with Tenant's broadcasting, transmitting or activities
in or on any portion of the Leased Premises, Landlord will reasonably exercise
all available rights and remedies to cause such other tenant to promptly correct
the condition causing such Interference.
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(c) Interference Defined. Except with regard to "Signal Degradation"
to Interference-Protected Third Parties, as used herein and throughout the
Lease, "Interference" with a transmitting activity shall mean a condition
existing which constitutes material interference within the meaning of the
provisions of the applicable rules and regulations of the FCC as determined
and/or measured by the standards of ANSI/EPA/TEA. Tenant acknowledges that the
determination of what constitutes material Interference and the appropriate
actions to be taken to correct such Interference shall be at the reasonable
discretion of Landlord acting according to customary and sound engineering
practices.
(d) Landlord shall cause all other tenant leases on the Tower to
include Interference provisions substantially similar to this Article XIII.
ARTICLE XIV
REPAIRS
(a) Action by Landlord. If circumstances occur, or threaten to
occur, from which Landlord may reasonably conclude that imminent damage is
likely to occur to the property of Tenant, of Landlord, of any other tenant or
of any other person, or that substantial threat to life or the safety of
individuals will exist, before agents of Tenant can be advised and respond,
Landlord, without notice to Tenant, may repair, maintain, deenergize, disconnect
or dismantle any or all equipment and/or lines of Tenant and take any other
reasonable action which in Landlord's discretion, may appear necessary, with
respect to the property of Tenant, or of Landlord, without any liability
whatever on the part of Landlord for any damage whatsoever which such action may
cause.
(b) Non-Emergency Repairs. In the event of need for repair or
maintenance of the Tower or Transmitter Building, and if such repairs or
maintenance are not, in the discretion of Landlord of an emergency nature, then
Landlord shall have the right, upon 10 days notification to Tenant, to undertake
such repair or maintenance at its convenience. In such cases, Landlord and
Tenant agree to try to coordinate such activities in such manner as will
minimize any interruption that may be caused to Landlord's and Tenant's
broadcast activities or to the transmission activities of any other tenants.
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ARTICLE XV
ASSIGNMENT
(a) By Landlord. This Lease may be assigned by Landlord.
(b) By Tenant. Without the prior written consent of Landlord, such
consent not to be unreasonably withheld or delayed, Tenant shall not assign or
sublease this Lease or any interest therein, and, except as set forth in Section
9(i) hereof, shall not encumber, hypothecate or otherwise give as security, this
Lease or any interest therein. Notwithstanding the foregoing, Tenant may assign
its rights and obligations under this Lease to any party acquiring the license
for the Station pursuant to prior FCC approval, provided that such acquiring
party agrees in writing to assume, be bound by and comply with all of the terms
and conditions of this Lease. No assignment shall be effective as against
Landlord for any purpose, unless all sums due from Tenant, together with any
costs to Landlord to cover reasonable legal and other expenses of Landlord in
connection with such assignment, shall have been paid to Landlord.
In all such assignments, Tenant shall remain primarily liable to
Landlord for fulfillment of the terms, covenants and conditions hereof, except
that such Tenant shall be released and discharged of all liability accruing
hereunder after the effective date of such release if (i) assignee as Tenant
fully and punctually performs each and all of its obligations hereunder during
the first 12 calendar months next following the effective date of such
assignment; and (ii) the financial ability and credit standing of the assignee
(together with the financial ability and credit standing of any guarantors of
such assignee's obligations hereunder), in the reasonable judgment and
discretion of Landlord, is satisfactory to Landlord.
Landlord's consent to one assignment by Tenant or acceptance of
performance from an assignee shall not be deemed a waiver of Landlord of the
restrictions of this Article XV as to subsequent attempts to assign by Tenant or
by Tenant's heirs, successors, assigns or subtenants. As used herein the terms
Landlord and Tenant shall be deemed to include their respective heirs,
successors and permitted assigns.
ARTICLE XVI
ALTERATIONS
Tenant shall not demolish, remove or modify any installations,
additions, fixtures, structures or other improvements now or hereafter attached
to the Leased Premises or any structure thereon, without the prior written
consent of Landlord, which consent as to non-structural modifications,
installations, additions or fixtures in the Tenant's Space shall not be
unreasonably withheld.
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ARTICLE XVII
UTILITIES
Tenant shall be responsible for furnishing and paying for all water,
fuel, air conditioning, telephone, electricity and all other utility services
directly and only utilized by it. Tenant shall install its own meter for
electrical service at the Premises.
ARTICLE XVIII
SUBORDINATION
This Lease is subject and subordinate at all times to the lien of
existing and future mortgages on the Premises and any improvements thereon.
Although no instrument or act on the part of the Tenant shall be necessary to
effectuate such subordination, the Tenant will, nevertheless, execute and
deliver such instruments subordinating this Lease to the lien of all such
mortgages as may be desired by the mortgagee, provided that in the instrument of
subordination, the mortgagee (or trustee), for itself and its successors and
assigns, agrees that, so long as Tenant shall not be in material default under
this Lease, the mortgagee (or trustee) and its successors and assigns recognize
the right of Tenant to possession under the Lease and will not disturb the
peaceful, quiet enjoyment of the demised premises by Tenant. Tenant hereby
appoints Landlord its attorney-in-fact, irrevocably, to execute and deliver any
such instrument for and in the name of Tenant. If this Lease is so subordinated,
no entry under any such mortgage or sale for the purpose of foreclosing the same
or repossessing or other action pursuant to such mortgage or other security
indenture shall be regarded as an eviction of Tenant, constructive or otherwise,
or give Tenant any rights to terminate this Lease. In any event, Tenant shall
attorn to such mortgagee or mortgagees and any assignee or purchaser therefrom.
ARTICLE XIX
SUCCESSORS
The terms, conditions and covenants contained in the Lease shall apply
to, inure to the benefit of and be binding upon, the parties hereto and their
respective successors and permitted assigns.
ARTICLE XX
NOTICES
Whenever any notice is required or permitted hereunder (other than
telephonic notices permitted hereunder), such notice shall be in writing and
shall be deemed duly given if delivered to the address of the party to be
notified or if deposited in the United States mail, postage prepaid, certified
or registered mail, return receipt requested, addressed to the party to be
notified as follows:
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TENANT: Xxx Xxxxx, Executive Vice President
ACME Television of New Mexico, L.L.C.
0000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LANDLORD: Xxxxxxx Broadcasting Company of New Mexico, L.L.C.
0000 Xxxxx Xxxxxxxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and shall be deemed received on the date of delivery to such address or, if
mailed, on the date delivery was accepted or refused by Tenant as evidence on
the return receipt.
Either party may change its address for delivery of notice by giving
notice of a change of address in compliance with the terms of this Article XX.
ARTICLE XXI
DELAYS
In any case in which either party hereto is required to do any act
(other than make a payment of money), delays caused by or resulting from an act
of God, war, civil commotion, fire or other casualty, labor difficulties,
general shortage of labor, materials or equipment, governmental regulations or
other causes beyond such party's reasonable control, shall not be counted in
determining the time when the performance of such act must be completed, whether
such time be designated by fixed time, a fixed period of time or a "reasonable
time". In any case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made, both to the party required to
perform such work and to the party required to make such payment, for delays and
collection of such proceeds and rewards.
ARTICLE XXII
WAIVER OF SUBROGATION
The parties hereby release each other from any and all liability for any
loss or damage caused by fire or any of the extended coverage casualties, even
if such fire or any other casualty shall be brought about by the fault or
negligence of such other party its agents, servant, employees or invitees. Each
party shall cause its fire and extended coverage policies, if any, to include a
waiver of subrogation rights.
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ARTICLE XXIII
CONSTRUCTION OF AGREEMENT
This Lease and the rights and obligations of the parties hereto shall be
governed by, and construed in accordance with, the laws of the State of New
Mexico applicable to agreements made and to be performed in that state. In the
event any provision of this Lease shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
ARTICLE XXIV
MODIFICATIONS
Any agreement between the parties hereto shall be ineffective in
changing, modifying or discharging this Lease in whole or in part unless such
agreement is in writing and signed by the party against who such change,
modification or discharge is sought to be enforced. This Lease supersedes any
and all prior agreements between the parties, whether written or oral, with
respect to the subject matter hereof.
ARTICLE XXV
PARAGRAPH HEADINGS
Paragraph headings used in this Lease are for convenience of the parties
only and shall in no way be used to interpret or construe the agreement of the
parties.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this agreement
as of the day and year first above written.
LANDLORD:
Xxxxxxx Broadcasting of New Mexico, L.L.C.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title:
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TENANT:
ACME Television of New Mexico, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
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