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EXHIBIT 10.05.16
LAND LEASE AGREEMENT
This agreement is entered into on this 1st day of January, 2000 between, SALEM
MEDIA OF COLORADO, INC. (KRKS) ("Lessee"), and ATSINGER FAMILY TRUST/XXXXXXXX
FAMILY LIMITED PARTNERSHIP ("Lessor").
ARTICLE I
DEFINITIONS
The terms listed below when spelled with initial capital letters have the
following meanings in this agreement:
1.1 ADJUSTMENT DATE shall mean the first day of January following the
first anniversary of the Commencement Date and each subsequent first day of
January this Agreement remains in effect.
1.2 AGREEMENT means this Land Lease Agreement, including the schedules
and any other executed attachments and/or addenda all of which are made part of
this Agreement.
1.3 ANTENNA means the structure, supporting structures including
foundations and guy wires, cabling, ground systems and all other equipment
related to the tower system as set forth in Section 5.1 hereof.
1.4 ARTICLE or ARTICLES means one or more of the articles of this
Agreement.
1.5 COMMENCEMENT DATE means 12:01 AM on the date specified in this
Agreement as the Commencement Date of the Initial Term, as hereinafter defined.
1.6 EQUIPMENT BUILDING means the structure or area provided for the
Transmitters and associated broadcast transmission equipment as designated in
Schedule 5.2 for the limited purpose of constructing, installation, maintenance,
operation, repair or removal of the equipment. Notwithstanding anything in this
Agreement to the contrary, any item to be constructed or installed in the
Equipment Building pursuant to this Agreement shall be paid for, constructed and
maintained by Lessee.
1.7 EXPIRATION DATE means 11:59 PM on the date specified in this
Agreement as the date on which the Initial Term or any extended term of this
Agreement expires.
1.8 FACILITIES and FACILITY refer collectively or individually to any
and all Equipment, Cabling, Antenna and/or buildings or other structures
required to be constructed pursuant to Section 5.2 hereof, as the context may
indicate.
1.9 INITIAL TERM means the period from the Commencement Date to the
date set forth in Section 3.2.
1.10 LEASED LAND/LESSOR'S PROPERTY means one quarter of section 00,
Xxxxxxxx 0 Xxxxx, Xxxxx 68 West of the 6th PM City of Commerce City, County of
Xxxxx, State of Colorado (see Exhibit 1).
1.11 MONTHLY RENT shall have the meaning as defined in Section 4.2(c)
hereof.
1.12 RENT means the consideration paid by Lessor to Lessee pursuant to
this Agreement.
1.13 SCHEDULE or SCHEDULES means one or more schedules attached to this
Agreement.
1.14 SECTION or SECTIONS means one or more of the sections of this
Agreement.
1.15 TOWER means within this document the same as Antenna.
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ARTICLE II
SCOPE OF THE AGREEMENT
2.1 LEASE. This Agreement sets forth the terms and conditions under
which Lessor agrees to lease land to the Lessee. Lessee agrees to use the Leased
Land and related rights only in accordance with the terms and conditions of this
Agreement; to comply with all applicable governmental regulations and
requirements of law pertaining to Lessee's activities in or around Lessor's
Property; to pay all fees, charges, costs and expenses in accordance with this
Agreement promptly when due; to keep the Facilities properly maintained; and to
comply in all respects with each of the obligations, duties, rules, conditions,
and requirements applicable to Lessee under this Agreement.
2.2 NO OTHER USE. Lessee will use the Leased Land solely for operating
the Antenna for its Commercial Broadcast Transmitter site, only for the purpose
and benefit of Salem Media of Colorado, Inc. and lessee will not make any other
use of the Leased Land related rights provided under this Agreement. Lessee
shall not use Lessor's Property or any portion thereof, including the Equipment
Building, for purpose of maintaining the studios, offices or storage of Lessee.
2.3 NO OTHER RIGHTS. Only the Leased Land and related rights described
in this Agreement are provided under this Agreement. Lessor does not provide any
service or product under this Agreement.
ARTICLE III
TERM OF THE AGREEMENT; TERMINATION; RENEWALS
3.1 COMMENCEMENT DATE. The Commencement Date shall be the date when
Lessee begins construction or when Lessee commences with any part of the
installation on Lessor's property.
3.2 EXPIRATION DATE. The Expiration Date of this Agreement shall be the
day preceding the Tenth (10th) year anniversary of the Commencement Date, except
that if such date is not the last day of a calendar month, the Expiration Date
of this Agreement shall be the last day of the month in which the Tenth (10th)
anniversary of the Commencement Date falls. If the term has been extended, the
Expiration Date shall be the last day of the term as so extended.
3.3 TERMINATION BY LAW. Lessor shall have the right to terminate this
Agreement, upon notice to Lessee, and shut down and/or remove Lessee's Antenna,
if:
(a) This Agreement is required to be terminated by ruling or regulation
of the Federal Communications Commission ("FCC") or the Federal
Aviation Administration ("FAA") or by any violation of the
Communications Act of 1934, as amended, arising out of Lessee's use of
Leased Land; or
(b) A final determination, not subject to appeal, of any local, state
or federal governmental body that Lessee's Facilities or the placement
and/or operation of Lessee's Facilities is in violation of any laws,
rules or regulations of any local state or federal agencies including,
without limitation, any land use provisions and/or any zoning and/or
planning code; or
(c) A final determination, not subject to appeal, that Lessee's
Facilities fail to meet in any material respect the requirements
imposed by law or the rules and regulations of local, state and federal
agencies and Lessee shall have failed to cure said matters within ten
(10) days of such final determination and written notice thereof.
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ARTICLE IV
FEES AND CHARGES; BILLING
4.1 PAYMENT OF RENT. Lessee agrees to pay rent to Lessor, without
notice or demand, from the Commencement Date through the Expiration Date
provided herein, at:
Atsinger Family Trust/Xxxxxxxx Family Limited Partnership
c/o Salem Communications Corporation
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Accounting (805-987-0400)
or to such other person or place as Lessor may designate from time to time by
notice to Lessee.
4.2 RENT.
(a) Beginning with the Commencement Date, and continuing to the first
Adjustment Date, the base rent shall be the sum of $60,000.00 per
annum, payable in equal monthly installments of $5000.00 in advance of
the first day of each month (and thereafter on each and every
Adjustment Date the monthly rent shall be computed according to Section
4.2(b); provided, however, that the installment of the base rent
payable for the first full month of the term shall be due and payable
on the full execution and delivery of this Agreement. If the
Commencement Date and/or Expiration Date occur on a day other than the
first day of a calendar month, rent shall be prorated for the month in
which the Commencement Date and/or Expiration Date occurs.
(b) During the one (1) year period beginning with each Adjustment Date,
the monthly rent payable by Lessee shall reflect an adjustment, as
herein provided, for the change, if any, from the year in which the
Commencement Date falls, in the Consumer Price Index for All Urban
Consumers [Base Year 1982-84=100] ("CPI") as measured in February and
published by the United States Department of Labor, Bureau of Labor
Statistics; i.e., during the one (1) year period beginning with the
Adjustment Date, the monthly rent shall be the product obtained by
multiplying the Base Rent times a fraction, the numerator of which
shall be the CPI for February of the year such Adjustment Date falls
and the denominator of which shall be the CPI for February of the year
in which the Commencement Date falls. Notwithstanding the results of
the foregoing calculation, the annual base rent payable by Lessee
hereunder shall not in any event be less than 105% of the annual base
rent payable during the immediately preceding one (1) year period. In
the event that the Bureau of Labor Statistics shall change the base
period for the CPI, the new index number shall be substituted for the
old index number in making the above computation. In the event the
Bureau of Labor Statistics ceases publishing the CPI, or materially
changes the method of its computation, Lessor and Lessee shall accept
comparable statistics on the purchasing power of the consumer dollar as
published at the time of said discontinuation or change by a
responsible financial periodical of recognized authority to be chosen
by Lessor subject to reasonable consent of Lessee.
(c) As used herein, "Monthly Rent" shall refer to the rent paid by
Lessee pursuant to this Section 4.2.
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4.3 ADDITIONAL RENT. Lessee shall pay or reimburse Lessor within ten
(10) days after receipt of a statement from Lessor for all taxes, including
without limitation, real estate taxes, personal property taxes, ad valorem taxes
and special assessments, levied against Lessor which are attributable to Lessee,
or its assigns, as a result of the Facilities, buildings or structures placed or
operated on Lessor's Property by Lessee or services offered by Lessee on
Lessor's Property (but excluding any taxes attributable to Lessor's Property),
which statement shall include, at the request of Lessee, such documentation as
is reasonably necessary to substantiate said amounts. In addition, Lessee shall
pay or reimburse Lessor within ten (10) days after receipt of a statement for
any state or local tax of any kind (except income taxes) arising from or
attributable to this Agreement.
4.4 NO NOTICE. From and after the Commencement Date, Lessee will pay to
Lessor the Monthly Rent. Said installments are due and payable in advance,
without notice or demand. Although Lessor may, for its own convenience, issue
bills to Lessee, any failure of Lessor to issue a timely xxxx will not relieve
Lessee of its obligation to pay Monthly Rent without notice or demand.
4.5 NO SET-OFF. Except as otherwise provided in this Agreement, Lessee
will pay all Rent, fees, costs, and expenses without deduction or set-off of any
kind.
ARTICLE V
GRANT OF LAND LEASE USES
5.1 ANTENNA. Lessor, in consideration of the rents to be paid and the
covenants contained herein, hereby leases to Lessee the right to erect and
maintain a two-tower Antenna Array (hereafter referred to as Antenna) as
generally depicted on Exhibit 1 for the limited purpose of installing,
maintaining, operating, or repairing the Antenna in accordance with this
Agreement, and to pass through portions of the Lessor's Property designated by
Lessor for ingress to and egress from the Antenna Location. All site work for
the use on the Antenna shall be performed by Lessee and at the expense of
Lessee.
5.2 EQUIPMENT BUILDING. Lessor, in further consideration of the rents
to be paid and covenants contained herein, hereby grants to Lessee the rights to
build and/or use an Equipment Building as reasonably determined by Lessor, for
the limited purpose of installing, maintaining, operating, repairing, or
removing all necessary and required Equipment in accordance with this Agreement;
and to pass through portions of the Lessor's Property designated by Lessor for
ingress to and egress from the Equipment Building. All site work for the use of
the Equipment Building shall be performed by Lessee and at the expense of
Lessee. Notwithstanding anything in this Agreement to the contrary, in the event
Lessee is required by Lessor to construct a permanent building or other
permanent structure on Lessor's Property, at the expiration of the term of this
Agreement, the permanent building and other permanent structures shall, at the
sole election of Lessor, become the property of Lessor.
ARTICLE VI
INSTALLATIONS OF FACILITIES
6.1 SPECIFICATIONS. Lessee shall prepare specifications for Lessee's
Facilities to be constructed and maintained on Lessor's property. All such
specifications shall be based upon information contained in the Schedules hereto
and engineering data furnished by Lessee and may include the requirement of
Lessee to provide, at Lessee's expense, the purchase and installation of such
equipment for protecting Lessor's property.
6.2 PRIOR APPROVAL. Prior to the initiation by Lessee of the delivery,
installation, replacement, modification or removal of Facilities, Lessee must
obtain the prior written approval of Lessor to Lessee's proposed scheduling of
work and Lessee's choice of vendors and contractors. Lessor, at its sole
discretion and election, may condition said approval on obtaining additional
information and/or requiring schedule changes and substitution of vendors and
contractors. Lessor's approval of any act or action of Lessee or Lessee's
Authorized Personnel pursuant to this Agreement shall not be considered an
endorsement, representation, or warranty regarding the viability of said
scheduling, and/or the ability of said vendor or contractor to perform the work
intended by Lessee. Lessee shall deliver, construct and install the Facilities
in strict conformity with the specifications, schedules, and choice of vendors
and contractors approved by Lessor.
6.3 DELIVERY & INSTALLATION OF FACILITIES. Lessee shall furnish,
construct and install all Facilities. Physical delivery of the Facilities to
Lessor's property and all installation work performed by Lessee shall be
performed in accordance with the specifications and approvals furnished pursuant
to this Article.
6.4 LESSEE'S RESPONSIBILITIES. Notwithstanding anything in this
Agreement to the contrary, Lessee has the sole responsibility for any product
liability claims, product warranty claims, delays and service outages of Lessee
that may result from defective Facilities, improper scheduling, improper
installation, or any other matter, irrespective of the cause.
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ARTICLE VII
USE OF LEASED SPACE
7.1 FACILITIES. Lessee may bring the Facilities onto the Leased Land at
Lessee's own risk and expense. Equipment shall be confined to the Equipment
Building and the Antenna shall be confined to the Antenna Location as defined in
Section 5.1.
7.2 OTHER MATERIALS. In addition to the Facilities, Lessee may bring
onto the Leased Land, at Lessee's own risk and expense (a) any materials and
apparatus specially identified in written engineering specifications approved in
writing by Lessor, and (b) small tools and portable test equipment as needed to
perform Lessee's obligations under this Agreement. Lessee's rights under this
Section 7.2 are subject to the conditions that all such materials, apparatus,
tools, and test equipment will remain at all times in the care, custody, and
control of Lessee's Employees.
7.3 NEGATIVE COVENANTS. Lessee may not bring onto the Leased Land any
material, apparatus, facilities, tools, or equipment other than those identified
in this Agreement unless Lessee first obtains written permission from Lessor.
Without limiting the foregoing, Lessee is specifically informed that the
following are not permitted within the Leased Land: wet cell batteries,
explosives, flammable liquids or gases, alcohol, controlled substances, weapons,
toxic materials, hazardous waste, pollutants, contaminants, asbestos and
asbestos related products, polychlorinated biphenyl's (PCB's), petroleum, crude
oil or any fraction or distillate thereof, and any similar equipment and/or
materials. Lessee shall not use or permit Lessor's Property to be used by any
dangerous, toxic, noxious, offensive, or unlawful purposes.
ARTICLE VIII
RIGHT OF ENTRY
8.1 ACCESS. Lessee shall have reasonable access to the Leased Land;
provided access to the Leased Land shall be regulated pursuant to the rules and
regulations described in Section 23.5 and access to Antenna and Equipment
Building may be limited based upon the reasonable discretion of Lessor.
8.2 AUTHORIZED PERSONNEL. All persons, contractors and/or engineers
installing, maintaining, repairing, removing or otherwise working on the
Facilities shall be approved in advance by Lessor, which approval shall not be
unreasonably withheld. A list ("Authorized Entry List") of those persons,
contractors and/or engineers approved by Lessor shall be maintained by Lessor.
Prior to the Commencement Date, Lessee will submit to Lessor a proposed
"Authorized Entry List". Lessor may request additional information from Lessee
before granting its approval, which approval may not be unreasonably withheld.
Lessee will promptly give notice to Lessor, both orally and in writing, of the
name of any person who ceases to be one of Lessee's employees or agents or whom
Lessee wishes to remove from the "Authorized Entry List".
8.3 QUALIFIED PERSONNEL. Lessee represents and warrants that on the
date hereof and each and every date prior to the last act to be performed by
Lessee pursuant to this Agreement, including Section 9.2 hereof, Lessee's
Employees and any other person(s) installing, maintaining, repairing, removing
or otherwise working on the Facilities or otherwise on Lessor's Property at the
request or direction of Lessee shall be a technician qualified to perform said
duties and have been trained in compliance with then current OSHA, FCC and ANSI
standards, including such standards relating to radio frequency radiation.
ARTICLE IX
PROTECTION OF SERVICE AND PROPERTY
9.1 CONTINUITY OF USE. The continuity of the use of the land by Lessor
is of paramount importance. Lessee and Lessee's Employees will at all times
exercise the highest degree of care to prevent damages to the Lessor's Property
and to all other real and personal property of Lessor, its customers and other
tenants of Lessor's Property. Lessee and Lessee's Employees will perform any
work and use the Facilities in a manner that will protect all other persons,
structures, equipment, utilities, and/or work areas of any kind against injury,
damage or interruption of service. Lessee and Lessee's Employees will not use
any Facilities, equipment, tools or methods which, in the sole judgment of
Lessor, might endanger or interfere with the services of Lessor.
9.2 QUIET ENJOYMENT. Except as otherwise set forth in this Agreement,
Lessor shall not alter, make adjustments to, relocate or otherwise modify or
tamper with Lessee's Facilities.
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ARTICLE X
INSPECTION
10.1 WORK IN PROGRESS. Lessor, its employees and agents may inspect and
observe any work while in progress or after completion to ascertain whether the
work is in accordance with the specifications and requirements of this
Agreement. Lessor may require Lessee to correct any faulty work. However,
inspection or observation by Lessor or by its agents of work performed by Lessee
or Lessee's Employees will not relieve Lessee of full responsibility for the
proper performance of the work.
10.2 TIME. Lessor, its agent and its designees (including without
limitation building inspectors, fire marshals, and other officials) may inspect
the Leased Land and the Facilities at any time. At Lessee's request, Lessee's
Employees on the Authorized Entry List may accompany Lessor during such
inspections except when, in the sole judgment of Lessor, safety or service
considerations require otherwise.
ARTICLE XI
UTILITIES
11.1 LESSEE RESPONSIBILITY. Lessee shall be responsible, at Lessee's
sole cost, for obtaining, using and paying for all utility services to the
Leased Land for Lessee's use including, without limitation, electricity,
electricity for proper antenna operations including required FAA obstruction
lighting, elevator, platform tenants, electricity for the building common areas
both inside and outside, including general lighting and receptacles air
conditioning, heat, water, sewer, telephone, waste disposal and gas
(collectively referred to herein as "Utilities").
11.2 INTERRUPTION. Under no circumstances shall Lessor be liable for
any interruption or failure in the supply of any Utilities to the Leased Land,
nor shall Lessee have any right to an abatement in rent or offset to rent in the
event of any interruption or failure in the supply of any Utilities to the
Leased Land.
ARTICLE XII
OWNERSHIP OF FACILITIES
12.1 RISK OF LOSS. Except as otherwise provided in this Agreement, all
Facilities shall be owned by Lessee, and Lessee shall bear all risk of loss
and/or damage to the Facilities.
12.2 OWNERSHIP. Any and all Facilities on Lessor's Land, except utility
service and any building or structure installed by Lessee (which, at the
expiration of the term of this Agreement, shall, at the sole election and
discretion of Lessor, be the property of Lessor), shall remain the personal
property of Lessee notwithstanding the fact that it may be affixed or attached
to the realty or Lessor's Property, and shall, subject to all terms and
conditions of this Agreement, during the Agreement, any extension thereof or
upon the termination thereof belong to and be removable by Lessee. All other
machinery, equipment, buildings, structures and trade fixtures attached to
Lessor's Property, shall, upon termination of this agreement, be deemed fixtures
and, at the sole election of Lessor, become the property of Lessor.
ARTICLE XIII
MAINTENANCE AND REPAIR
13.1 FACILITIES. Lessee will, at its own risk and expense, maintain and
repair, including replacement if necessary (collectively referred to as
"Maintenance"), the Antenna, buildings, structures and any other items or things
placed on Lessor's Property by Lessee pursuant to this Agreement. All
Maintenance shall be performed in a manner suitable to Lessor so as not to
conflict with the use of Lessor's Property by Lessor, or any other tenant of
Lessor. All Maintenance shall be provided by qualified technicians, authorized
to enter Lessor's Property pursuant to Section 8.2.
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ARTICLE XIV
NO ALTERATIONS
14.1 Except as specifically set forth in this Agreement, Lessee may not
make any alterations, additions and/or improvements to any part of the Lessor's
Property, the Leased Land, the Antenna and Equipment without the prior written
consent of the Lessor, which consent shall be given in Lessor's sole discretion.
ARTICLE XV
REPRESENTATIONS, WARRANTIES AND OTHER OBLIGATIONS
15.1 LESSOR'S REPRESENTATIONS AND WARRANTIES. Lessor represents and
warrants that:
(a) 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
and shall not constitute a breach or violation under any agreement to
which Lessor is a party.
(b) 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 Land, 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
Land.
(c) There is no action, suit or proceeding pending or, to Lessor's
knowledge, threatened against or affecting the Leased Land or any
portion thereof and Lessor has not received notice, written or
otherwise, of any litigation affecting or concerning the Leased Land
relating to or arising out of its ownership, management, use or
operation.
(d) Lessor's Property is and will remain in material compliance at all
times during the Term of this agreement with all federal, state,
county, municipal, local, administrative and other governmental laws,
statutes, ordinances, codes, rules, regulations and orders pertaining
thereto, including, without limitation, to the extent applicable, all
zoning laws and building codes, all environmental laws and all
regulations of the FAA and the FCC.
15.2 LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and
warrants that:
(a) The Facilities 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").
(b) The execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly
and validly authorized by all necessary actions on the part of Lessee
and shall not constitute a breach or violation under any agreement to
which Lessee is a party. This Agreement constitutes a valid and binding
agreement and obligation of Lessee, enforceable in accordance with its
terms.
(c) Lessee will conduct its activities on Lessor's Property in
compliance with all applicable laws, including, without limitation, all
OSHA, FCC, and FAA rules and regulations, environmental laws, and any
rule or law applicable to the construction or operation of Lessee's
Facilities.
(d) The Leased Land is and will remain in material compliance at all
times during the Term and any Extension Term with all federal, state,
county, municipal, local, administrative and other governmental laws,
statutes, ordinances, codes, rules, regulations and orders pertaining
thereto, including, without limitation, to the extent applicable, all
zoning laws and building codes and all regulations of the FAA and the
FCC.
(e) No agent, broker or other person, entity or firm acting on behalf
of or under the authority of Lessee or any affiliate of Lessee is or
will be entitled to any broker's or finder's fee or any other
commission or similar fee, directly or indirectly, in connection with
the transactions contemplated by this Agreement.
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ARTICLE XVI
EVENTS OF DEFAULT
16.1 DEFAULT OF LESSEE. Any of the following events shall constitute an
"event of default" on the part of Lessee:
(a) The failure of Lessee to pay any amount due hereunder, and
continuation of such failure for more than five (5) 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;
(b) The failure of Lessee to comply with the provisions of Article IX
hereof; or
(c) The failure of Lessee to fulfill any other obligation hereunder or
the inaccuracy of any representation or warranty and the continuation
of such failure or inaccuracy for more than ten (10) days after notice
by Lessor, provided, however, that if the nature of Lessee's failure is
such that more than ten (10) days is required for its cure, then Lessee
shall not be deemed to be in default if Lessee has commenced such cure
within the ten (10) day period, demonstrates to Lessor's reasonable
satisfaction that such default is curable and thereafter diligently
prosecutes such cure to completion.
16.2 TERMINATION BY DEFAULT OF LESSEE. 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. 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 Land to Lessor.
If the Agreement is terminated pursuant to this Section, Lessee shall remain
liable to Lessor for the payment of rent for the remainder of the lease term and
without prejudice to any other right or remedy which Lessor may have hereunder
or by law and which shall, at the sole election and discretion of Lessor, become
immediately due and payable. Notwithstanding the foregoing, Lessor shall attempt
to mitigate any damages it may suffer as a result of the default of this
Agreement by Lessee. Notwithstanding any waiver of any prior breach or event of
default hereunder, Lessor may re-enter the Leased Land either by reasonable
force or otherwise, or dispossess Lessee, any legal representative of Lessee or
other occupant of the Leased land by appropriate suit, action or proceeding and
remove its effects and hold the Leased Land as if this Agreement had not been
made. Notwithstanding anything in this Agreement to the contrary, and in
addition to any other remedies Lessor may have, if an event of default shall
occur, Lessor, at its election, may stop providing Utilities to Lessee's
Facilities and/or the Leased Land and Lessee specifically waives any and all
claims for damages against Lessor arising from a loss Utilities to the Leased
Land.
ARTICLE XVII
INSURANCE
17.1 LESSEE'S INSURANCE. Lessee shall, at its sole expense, maintain
commercial public liability insurance against claims for personal injury, bodily
injury, wrongful death and property damage occurring on, in or about Lessor's
Property under policies and with companies reasonably acceptable to Lessor,
affording insurance protection to limits of not less than One Million Dollars
($1,000,000.00) for combined single limit with respect to any one occurrence and
Three Million Dollars ($3,000,000.00) in the aggregate for all occurrences
within each policy year. Lessee shall also maintain "all risk" or special form
policies of property insurance covering the Facilities and any improvements of
Lessee located on the Lessor's Property for the full replacement cost. Lessor,
its managing agent, all mortgagees, and such other parties as Lessor may
reasonably designate shall be named as additional insureds on each such policy
pertaining to Lessor's Property and shall be furnished with a certificate
thereof. Each such policy of insurance shall, to the extent obtainable at no
extra premium, provide: (a) that any claim shall be payable notwithstanding any
act, whether of commission or omission, negligent or otherwise, of Lessor, of
Lessee, of any other tenant or of any agent, employee, representative, visitor
or guest of any of them, which act might otherwise result in the forfeiture of
the insurance afforded by such policy, and (b) that Lessor shall not be liable
to the insurer by reason of any payment by the insurer to Lessor, or any such
other tenant. In addition, each such policy shall provide an agreement by the
insurer that the policy will not be canceled or modified to reduce coverage as
to risk, amount or named insured without at least fifteen (15) days' prior
written notice to Lessee, Lessor, mortgagees, and all other named insureds.
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17.2 WAIVER. Neither Lessor, nor their representatives, agents, or
employees shall be liable to Lessee or to anyone claiming through Lessee or to
any insurance company (by way of subrogation or otherwise) insuring Lessee for
any business interruption or for any loss or damage to any building, structure
or other tangible property, or injury to or death of persons occurring on or
about Lessor's Property, or in any manner growing out of or connected with
Lessee's use or occupation of the Lessor's Property, or the use or occupation of
the Lessor's Property by Lessee's agents, employees, representatives, visitors
or guests even though such business interruption, loss, damage, injury or death
might have been occasioned by the negligence of Lessor or their agents or
employees, to the extent that such business interruption, loss, damage, injury
or death is or could be covered by an "all risk" or special form policy of
property insurance, regardless of whether such insurance policies are actually
carried. Each insurance policy carried by Lessee hereto shall contain a clause
incorporating such waiver of subrogation and a clause to the effect that the
foregoing waiver shall not affect the right of the insured party to recover
under such policy.
17.3 LESSEE'S OBLIGATION TO REIMBURSE. Should Lessee store or maintain
any materials or equipment, or do any acts which result in an increase in the
rate or premium of any insurance coverage required to be provided by Lessor
pursuant to this Agreement, Lessee shall immediately reimburse Lessor for the
full amount of any such increase or shall remove them if Lessor so requires.
ARTICLE XVIII
INDEMNIFICATION
18.1 INDEMNIFICATION BY LESSEE. Lessee shall indemnify Lessor and its
agents, officers and employees and hold Lessor and its agents, officers and
employees harmless from and against all claims, actions, losses, damages,
liabilities and expense (including reasonable attorneys' fees) incurred by or
asserted against Lessor whether during or after the term of this Agreement,
including by reason of personal injury, loss of life, or damage to property,
caused by or resulting from, in whole or any material part: (i) any breach of
this Agreement by Lessee; (ii) Lessee's breach of any warranty contained in this
Agreement; (iii) any negligent or intentional act or omission of Lessee,
Lessee's Employees, agents, invitees or contractors, whether in, on, about or
with respect to the Leased Land or Lessor's Property; (iv) the use by Lessee of
any part of the Leased Land or Lessor's Property; (v) any work undertaken by or
at the request of Lessee on or about the Leased Land; (vi) any inspection,
observation or any action undertaken by Lessor pursuant to Article IX hereof;
(vii) the claim, existence or discovery of any hazardous substance on Lessor's
Property arising from Lessee's activities; (vii) any other activity undertaken
by or at the request of Lessee pursuant to or in connection with this Agreement;
or (ix) the presence of any individuals on the Leased Space or Lessor's Property
as a result of Lessee's request or this Agreement.
18.2 DEFENSE BY LESSEE. If Lessor so elects by notice to Lessee, Lessee
shall have the obligation of defending, at its sole cost and expense, by counsel
selected by Lessee and approved by Lessor (such approval not to be unreasonably
withheld), against any claim to which the foregoing indemnity may apply. Lessor
may assume, or require that such defense be assumed, by Lessor and counsel
selected by Lessor, at the cost and expense of Lessee if Lessor is for any
reason dissatisfied with the defense by Lessee, or believes that its interests
would be better served thereby. In any case where Lessee is defending any such
claim, Lessor may participate in the defense thereof by counsel selected by it,
but at Lessor's expense. Lessee shall not enter into any settlement of any claim
without the consent of Lessor, which consent shall not be unreasonably withheld.
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ARTICLE XIX
RECONSTRUCTION OF DAMAGED PREMISES
19.1 REPAIR. Except as otherwise provided in this Agreement, if
Lessee's Property, or any portion thereof, is partially or totally destroyed by
fire or other casualty so as to become partially or totally unusable, Lessee may
repair or reconstruct the damage on Lessor's Property to the extent and in the
manner required to meet the then current needs of Lessee.
19.2 RENT ABATEMENT. This Agreement will remain in full force and
effect pending repair or replacement of the damaged or destroyed premises, and
the obligation of Lessee to pay the Monthly Rent will not be abated during any
period due to damage to or destruction of the Lessee's Facilities (other than
fault of Lessor).
19.3 ELECTION NOT TO REPAIR. Notwithstanding anything to the contrary
in Sections 19.1 and 19.2 Lessee may, at its sole and absolute discretion, elect
not to repair or rebuild it's Facilities, or any portion thereof. Lessee will
promptly notify Lessor within forty-five (45) days of the event causing the
damage or destruction, if such option is elected.
ARTICLE XX
FORCE MAJEURE
20.1 FORCE MAJEURE. Except for Lessee's obligation to pay Rent, and
except as set forth in Article XIX above, neither party shall be held liable for
any delay or failure in performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence, such as acts of God,
acts of civil or military authority, government regulations, strikes, labor
disputes, embargoes, epidemics, war, terrorist acts, riots, insurrections, fire,
explosions, earthquakes, nuclear accidents, floods, power blackouts or brownouts
or surges, volcanic action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or services of other
persons or transportation facilities, or act or omissions of transportation
common carriers (collectively referred to as "Force Majeure Conditions").
20.2 TERMINATION BY FORCE MAJEURE. If any such Force Majeure Condition
occurs and is the proximate cause of a delay or failure in performance of any
part of a party's obligations under this Agreement for more than ninety (90)
days, the other party may, by written notice given to the party whose
performance was delayed or who failed to perform, terminate this Agreement or
that part of this Agreement that is affected by such delay or failure to perform
ARTICLE XXI
SAFETY
21.1 FACILITIES. Lessee is responsible for the safety of all
Facilities, buildings, structures and other materials brought by Lessee onto
Lessor's Land, and for the safety of all work performed by Lessee's Employees in
the delivery, provision, installation, operation, maintenance, repair and
removal of the Facilities, buildings, structures and any other material brought
by Lessee onto Lessor's Property. In discharging this responsibility, Lessee
shall comply (and shall cause Lessee's Employees to comply) with the
requirements of the Occupational Safety and Health Act of 1970, as amended; and
with any other federal, state, or local act or other requirements of law
affecting safety and health.
21.2 VIOLATIONS. Lessee shall be responsible for any violation by
Lessee or Lessee's Employees of any safety or health standard under this
Agreement. If any material furnished or any work performed by Lessee or Lessee's
Employees gives rise to a safety or health violation, Lessee will immediately
remedy such condition and will indemnify, defend, and hold Lessor it's
employees, agents, officers, representatives, affiliates, parent, subsidiaries
and their affiliated companies, and their employees, agents, officers and
representatives) harmless from any penalty, fine, or liability in connection
with such a violation.
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ARTICLE XXII
PERMITS, LICENSES, APPROVALS
22.1 FCC PERMITS. Lessee will apply for and obtain, at its sole cost
and expense, FCC construction permits applicable to the installation of the
Facilities, and will meet all FCC license and other requirements and
restrictions. The FCC construction permit(s) must be approved before any
construction or installation activity begins. A completed copy of Lessee's FCC
application and License will be supplied to Lessor along with the executed
agreement.
22.2 FAA APPROVAL. Lessee will notify the FAA of any Tower
modifications and Antenna installations, that may be required by Lessee, and
will use reasonable efforts to obtain any FAA-required permits, license, or
approvals associated with Lessee's Facilities. Lessee will pay for all costs and
expenses it incurs in obtaining or attempting to obtain any permits, license, or
approvals.
22.3 OTHER PERMITS OR LICENSE. Lessee shall apply for and obtain, at
its sole cost and expense, any and all License, permits, variances or other
governmental approvals required to install, operate and maintain its Facilities
in the Leased Land; provided that Lessee shall not submit any such applications
without the prior written consent of Lessor, which consent shall not be
unreasonably withheld.
ARTICLE XXIII
MISCELLANEOUS PROVISIONS
23.1 SEVERABILITY. If any one or more of the provisions contained in
this Agreement is, for any reason, held to be unenforceable in any respect under
applicable state law or laws of the United States of America, such
unenforceability will not affect any other provision of this Agreement, but this
Agreement will then be construed in such a way as will achieve the intent of
such unenforceable provision or provisions to the extent permitted by law.
23.2 ASSIGNMENT BY LESSOR. Notwithstanding any of the provisions of
this Agreement, Lessor may assign, in whole or in part, Lessor's interest in
this Agreement. In the event Lessor assigns this Agreement to a successor owner
of the Leased Land, Lessor shall be and is hereby relieved of all liability
arising after the consummation of such assignment under any and all covenants
and obligations contained in or derived from this Agreement or arising out of
any act, occurrence or omission relating to the Leased Land occurring after the
consummation of such assignment, but only upon the condition that, as part of
such Assignment, Lessor will cause the Assignee to agree, in writing, to carry
out any and all of the covenants and obligations of Lessor under this Agreement
occurring after the consummation of Lessor's assignment of its interest in and
to this Agreement. In the event of an assignment of Lessor's interest in this
Agreement to a Lender, as hereinafter defined, or a designee of a Lender, (i)
the assignee shall have no obligation to Lessee hereunder other than, provided
Lessee is not in default hereof, the obligation of quiet enjoyment, (ii) all
amounts required to be paid to Lessor hereunder from Lessee shall be paid to the
assignee, and (iii) Lessee shall not assert against such assignee any claims,
defenses, setoffs or counterclaims that it might have had against Lessor.
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23.3 ASSIGNMENT BY LESSEE. Lessee may not assign this Agreement without
the prior written consent of Lessor which consent shall not unreasonably be
withheld. Lessee may not sublet this Agreement, the Leased Land, or any portion
thereof without the prior written consent of Lessor, which consent shall be
given or withheld in Lessor's sole and absolute discretion. Under no
circumstance shall this Agreement be assigned by Lessee to any party which does
not agree in writing to be bound by all terms and conditions contained herein
and, notwithstanding Lessee's assignment of this Agreement, Lessee shall remain
liable for all obligations of Lessee pursuant to this Agreement until such time
as this Agreement is terminated.
23.4 CONDEMNATION. In the event Lessor's Property or any portion
thereof is taken pursuant to a condemnation proceeding or by eminent domain,
such that Lessor, or Lessee can no longer operate telecommunications equipment
on Lessor's property, this Agreement shall, at Lessor's sole and absolute
discretion, terminate without liability to either party and Lessee shall not be
entitled to any portion of any award arising out of such proceedings.
23.5 RULES AND REGULATIONS. From time to time, Lessor shall be entitled
to create and enforce rules and regulations governing the use of Lessor's
Property. Lessee agrees Lessee and Lessee's employees shall abide by said rules
and regulations. Lessor agrees that it shall not create or enforce any
unreasonable rules or regulations which would unduly prejudice Lessee's use of
the Leased Land, or which would prevent reasonable access to the Leased Land by
Lessee, as herein provided.
23.6 RESTORATION ON TERMINATION. Upon the termination of the Agreement
for any reason, Lessee will restore the Leased Land to its original condition,
normal wear and tear excepted, at Lessee's sole cost and expense. Any fixtures
including, without limitation, all Antenna, Cabling and Equipment, goods or
other property of Lessee not removed within ten (10) days after any quitting,
vacating or abandonment of the Leased Land, or upon Lessee's eviction therefrom,
shall be considered abandoned, and Lessor shall have the right, without notice
to Lessee, to sell or otherwise dispose of same without having to account to
Lessee for any part of the proceeds of sale.
23.7 NOTICES. All notices, demands, and requests required or permitted
to be given hereunder shall be in writing and sent certified mail, return
receipt requested.
To Lessee: Salem Media of Colorado, Inc.
KRKS
3131 Sp/ Xxxxxx Xxx #000
Xxxxxx XX, 00000
To Lessor Atsinger Family Trust/Xxxxxxxx Family Limited Partnership
c/o Salem Communications Corporation
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Either party hereto may change the place for notice to it by sending like
written notice to the other party hereto.
23.8 SUBORDINATION. Unless a Lender, as hereinafter defined, shall
otherwise elect as provided herein, Lessee's rights under this Agreement shall
be subject and subordinate to the operation and effect of any existing or future
Lien, as hereinafter defined, affecting Lessor's Land and to any extensions,
modifications or amendments of any such mortgage. Lessee's acknowledgment and
agreement of subordination provided for in this Section is self-operative and no
further instrument of subordination shall be required. However, within ten (10)
working days after request, Lessee shall execute a subordination,
non-disturbance and attornment agreement in form satisfactory to Lessor. If a
Lender shall so elect by notice to Lessee or by the recording of a unilateral
declaration of subordination, then this Agreement and Lessee's rights hereunder
shall be superior and prior in right to the Lien of which such Lender has the
benefit, with the same force and effect as if this Agreement had been executed,
delivered
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and recorded prior to the execution, delivery and recording of such Lien, as the
case may be, subject, nevertheless, to such conditions as may be set forth in
any such notice of declaration. The term "Lien" means any mortgage, deed of
trust or other security instrument constituting a lien upon all or any portion
of the Lessor's Land. The term "Lender" means a party having the benefit of the
Lien, whether as mortgagee, trustee, note holder or otherwise. Lessor shall make
a reasonable effort to obtain from any Lender an agreement that the Lender shall
not disturb Lessee's quiet possession in the event of foreclosure. If any
proceedings are brought for foreclosure, or in the event the exercise of the
power of sale under any mortgage or deed of trust made by the Lessor encumbering
the Leased Land, Lessee shall attorn to the purchaser upon any such foreclosure
or sale and recognize such purchaser as the Lessor under this Agreement.
23.9 BINDING EFFECT. 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.
23.10 ENTIRE AGREEMENT/MODIFICATIONS. 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.
23.11 RESOLUTION OF CLAIMS AND DISPUTES. Regardless of the place of
execution, this Agreement shall be deemed to be a contract made in Aurora,
Colorado and shall be interpreted as a contract to be performed wholly in the
State of Colorado. The law of the State of Colorado shall be applied without
regard to the principles of conflicts of laws. Lessee expressly waives any
presumption or rule, if any, which requires this Agreement to be construed
against Lessor. Any claims or disputes arising out of this Agreement shall be
resolved only by mediation or, if mediation does not resolve the claim or
dispute within ten (10) days of notice demanding mediation, by arbitration in
accordance with the Rules for Commercial Arbitration of the American Arbitration
Association and any award therefrom shall be rendered by the arbitrators as a
judgment in any trial court having jurisdiction in the City of Aurora, Colorado,
or of any other court having competent jurisdiction.
23.12 WAIVER. Failure of any party to complain of any act or omission
on the part of any other party in breach or default of this Agreement, no matter
how long the same may continue, shall not be deemed to be a waiver by said party
of any of its rights hereunder. No waiver by any party at any time, express or
implied, of any breach of any provision of this Agreement shall be deemed a
waiver of a breach of any other provision of this Agreement or a consent to any
subsequent breach of the same or other provisions.
23.13 ESTOPPEL. Either party shall at any time, upon ten (10) days'
prior written request from the other party, execute, acknowledge and deliver to
the requesting party a statement in writing (a) certifying this Agreement to be
unmodified and in full force and effect (or, if modified, stating the nature of
such modification), and the date to which the rent and other charges have been
paid in advance, if any uncured defaults hereunder on the part of the requesting
party, or specifying such defaults if they are claimed.
23.14 REASONABLENESS. Except as specifically set forth herein to the
contrary, any approval, consent or permission required to be given hereunder by
any party shall not be unreasonably withheld, delayed or conditioned.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
LESSOR: LESSEE:
ATSINGER FAMILY TRUST SALEM MEDIA OF COLORADO, INC. KRKS
By: By:
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XXXXXXXX FAMILY LIMITED PARTNERSHIP
By:
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