EXHIBIT 10.05.20
LEASE AGREEMENT
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This Agreement ("Agreement") is made as of the fourth day of March,
1995, by and between XXXXXX X. XXXXXXXX III and XXXX X. XXXXXXXX, not
individually but solely as Trustees of the ATSINGER FAMILY TRUST, and XXXXXX X.
XXXXXXXX, not individually but solely as Trustee of the XXXXXX X. XXXXXXXX
REVOCABLE LIVING TRUST, collectively referred to herein as "Lessor", and SOUTH
TEXAS BROADCASTING, INC. ("Lessee"), a Texas corporation.
WHEREAS, Lessor owns certain land (the "Land") and Lessee owns
certain improvements thereon (the "Improvements"), which Land and Improvements
together comprise certain real property located in the County of Xxxxxx, State
of Texas, more particularly described as set forth in Exhibit "A", which is
attached hereto and made a part hereof (the "Real Property"); and,
WHEREAS, Lessee uses said Real Property in operating its radio
station KENR-AM, Houston, Texas; and,
WHEREAS, the parties are desirous of making a mutually suitable and
satisfactory agreement whereby Lessor will lease to Lessee the Real Property
(constituting the "Leased Premises") on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the following covenants,
agreements, conditions and representations, the parties hereto agree as follows:
SECTION 1
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USE OF THE LEASED PREMISES
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(a) Lessor, in consideration of the rents to be paid and covenants
herein contained, hereby leases to Lessee the Leased Premises.
(b) Lessee may use the Leased Premises for the operation of its radio
station, and, in connection therewith, for the installation, repair,
maintenance, operation, housing and removal of its Improvements and other
related broadcasting equipment (together comprising the "Installations"). Lessee
is fully familiar with the physical condition of the Land and has received the
same in good order and condition, and agrees that the Land complies in all
respects with all requirements of this Agreement. Lessee shall use the Land
exclusively for purposes associated with the operation of a radio station.
(c) Lessee shall have the right from time to time to substitute
Installations of similar kind and character for those hereinabove specified,
provided such changes shall be approved in advance by Lessor, and Lessor shall
not unreasonably delay or withhold its approval. In the event Lessee submits any
such changes for Lessor's approval and Lessor does not respond within thirty
(30) days after Lessor's receipt thereof, then such changes shall be deemed
approved by Lessor, so long as such changes otherwise comply with this
Agreement, five (5) days after Lessor's receipt of notice that it has not
responded.
(d) Lessee shall have access to the Leased Premises twenty-four (24)
hours per day, seven (7) days per week, for the purpose of installing,
maintaining and repairing its Installations, provided that the contractors
performing such work are reasonably acceptable to Lessor.
(e) Lessor shall not be responsible for repairs or maintenance to the
Installations, except for repairs occasioned by the negligence of Lessor, its
agents, employees or contractors.
(f) During the Term (as hereinafter defined), Lessor and Lessee shall
each provide the other with a telephone number which, if called will ring at a
location that is staffed by their respective agents twenty-four (24) hours each
and every day, seven (7) days each and every week; and Lessor and Lessee shall
notify each other promptly in the event of any change in such telephone number.
(g) Lessee shall not use or permit the Leased Premises to be used by
any dangerous, toxic, noxious or offensive trade or business, or for any
unlawful purpose.
(h) Lessee shall not directly or indirectly create or permit to be
created or to remain, and will discharge any mortgage, lien, security interest,
encumbrance or charge on, pledge of or conditional sale or other title retention
agreement with respect to the Real Property or any part thereof or Lessee's
interest therein other than (i) this Agreement, (ii) any lien, including a
mortgage on the leasehold interest of Lessee, which may be approved by the
Lessor in writing, which approval shall not be unreasonably withheld, (iii)
liens for impositions not yet payable, or payable without the addition of any
fine, penalty, interest or cost for non-payment, or being contested as permitted
by Paragraph 3(d), below, and (iv) liens of mechanics, materialmen, suppliers or
vendors, or rights thereto, incurred in the ordinary course of business for sums
which under the terms of the related contracts are not at the time due, provided
that adequate provision for the payment thereof shall have been made.
SECTION 2
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TERM AND RENT
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(a) The term of this Lease (the "Term") shall commence on March 4,
1995 (the "Commencement Date"), and shall expire on March 3, 2005 (the
"Expiration Date"). If the Term has been extended as provided in subparagraph
(b), below, the Expiration Date shall be the last day of the Term as so
extended.
(b) Lessee shall have the option, if Lessee is not at the time in
default under this Agreement, to extend the Term of this Agreement for up to two
(2) successive periods of five (5) years each (the "Extended Terms"), and,
except as set forth in subparagraph (c), below, on the same terms, covenants and
conditions herein contained. The word "Term" as used in this Agreement shall be
deemed to include the Extended Terms when and if the Agreement is extended. Each
option to extend the Term shall be exercised only by Lessee's delivery to Lessor
by United States mail on or before ninety (90) days prior to the commencement of
the renewal term of written notice of Lessee's election to extend as provided
herein.
(c) Lessee agrees to pay rent to Lessor from the Commencement Date
through the Expiration Date, or such earlier date as this Agreement is
terminated as provided herein, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX
00000, Attn: Accounting, or to such other person or place as Lessor may
designate from time to time by notice to Lessee, in the following amounts and in
the following manner:
(i) During the first year beginning with the Commencement
Date Lessee shall pay a base rent of THIRTY THOUSAND DOLLARS ($30,000) per
annum, in equal monthly installments of TWO THOUSAND FIVE HUNDRED DOLLARS
($2,500) (the "Base Rent") in advance on the first day of each month; and
thereafter on each and every Adjustment Date (hereinafter defined) the monthly
rent shall be computed according to subparagraph (ii) below.
(ii) The term "Adjustment Date" shall mean the first (1st)
through the ninth (9th) anniversaries of the Commencement Date. During the one
(1) year period beginning with each Adjustment Date, the monthly rent payable by
Lessee shall reflect an adjustment, as herein provided, for an increase, if any,
in the Consumer Price Index for All Urban Consumers, All Items, U.S. Cities
Average [Base Year 1982/84=100] ("CPI") published by the United States
Department of Labor, Bureau of Labor Statistics, as measured in February of each
year; 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 in which the 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 monthly amount
payable by Lessee hereunder shall not in any event be less than the monthly
rental paid during the immediately preceding one (1) year period. In the event
that the Bureau of Labor Statistics shall change the base period for the CPI,
the new index number shall be substituted for the old index numbers in making
the above computation. In the event the Bureau of Labor Statistics ceases
publishing the CPI, or materially changes the method of its computation, Lessor
and Lessee shall accept comparable statistics on the purchasing power of the
consumer dollar as published at the time of said discontinuation or change by a
responsible financial periodical of recognized authority to be then chosen by
Lessor subject to reasonable consent of Lessee.
(d) Rent and all other sums payable to Lessor hereunder shall be paid
without notice, demand, counterclaim, set-off, deduction or defense and without
abatement, suspension, deferment, diminution or reduction. Except as expressly
provided herein, Lessee waives all rights now or hereafter conferred by statute
or otherwise to quit, terminate or surrender this Agreement or the Real Property
or any part thereof, or to any abatement, suspension, deferment,
diminution or reduction of rent or any other sum payable by Lessee hereunder.
SECTION 3
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CHARGES AND UTILITIES
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(a) Lessee, at its sole expense, shall keep the Real Property and the
adjoining streets and ways in good and clean order and condition and will
promptly make all necessary or appropriate repairs, replacements and renewals
thereof, whether interior or exterior, structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen. All repairs, replacements and renewals
shall be equal in quality and class to the original work. Lessee waives any
right created by any law now or hereafter in force to make repairs to the Real
Property at Lessor's expense. Lessee, at its sole expense, shall do or cause
others to do every act necessary or appropriate for the preservation and safety
of the Real Property whether or not the Lessor shall be required by any legal
requirement to take such action or be liable for failure to do so.
(b) If not at the time in default under this Agreement, Lessee, at
its sole expense, may make reasonable alterations of and additions to the
Improvements or any part thereof, provided that any alteration or addition (i)
shall not change the general character of the Improvements, or reduce the fair
market value thereof below their value immediately before such alteration or
addition, or impair their usefulness, (ii) is effected with due diligence, in a
good and workmanlike manner and in compliance with all legal requirements and
insurance requirements, (iii) is promptly and fully paid for by Lessee, (iv) is
made, in case the estimated cost of such alteration or addition exceeds Ten
Thousand Dollars ($10,000), under the supervision of an architect or engineer
satisfactory to Lessor and in accordance with plans, specifications and cost
estimates approved by Lessor, and (v) does not interfere with Lessor's rights of
use under this Agreement.
(c) Subject to subparagraph (d), below, relating to contests, Lessee
shall pay all taxes, assessments (including without limitation, all assessments
for public improvements or benefits, whether or not commenced or completed prior
to the date hereof and whether or not to be completed within the Term hereof),
ground rents, water, sewer or similar rents, rates and charges, excises, levies,
license fees, permit fees, inspection fees and other authorization fees and
other charges in each case, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including all
interest and penalties thereof), which at any time during or in respect of the
Term hereof may be assessed, levied, confirmed or imposed on or in respect of or
be a lien upon the Real Property or any part thereof or any rent therefrom or
any estate, right or interest therein, or any occupancy, use or possession of or
activity conducted on the Real Property or any part thereof, other than any
income or excess profits tax imposed upon the Lessor's general income or
revenues, but excluding any income or excess profits or franchise taxes of
Lessor determined on the basis of general income or revenue or any interest or
penalties in respect thereof. Lessee shall furnish to Lessor for inspection
within thirty (30) days after written request, official receipts of the
appropriate taxing authority or other proof satisfactory to Lessor evidencing
such payment. If by law any such amount may be paid in installments, Lessee
shall be obligated to pay only those installments as they become due from time
to time before any interest, penalty, fine or cost may be added thereto; and any
such amount relating to the
fiscal period of the taxing authority, part of which is included within the Term
and a part of which extends beyond the Term shall, if Lessee shall not be in
default under this Agreement, be apportioned between Lessee and Lessor as of the
expiration of the Term of this Agreement.
(d) Lessee, at its sole expense, may contest, after prior written
notice to Lessor, by appropriate legal proceedings conducted in good faith and
with due diligence, the amount or validity or application, in whole or in part,
of any tax, lien or other imposition on the Real Property, provided that (i)
Lessee shall first make all contested payments, under protest if it desires,
(ii) neither the Real Property nor any part thereof or interest therein nor any
such rents or other sums would be in any danger of being sold, forfeited, lost
or interfered with, and (iii) Lessee shall have furnished such security, if any,
as may be required in the proceedings or reasonably requested by Lessor.
(e) Lessee shall pay or cause to be paid all charges for all public
or private utility services and all sprinkler systems and protective services at
any time rendered to or in connection with the Real Property or any part
thereof, will comply with all contracts relating to any such services, and will
do all other things required for the maintenance and continuance of all such
services.
SECTION 4
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INSURANCE AND INDEMNIFICATION
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(a) Lessee shall, at its sole cost and expense, during the Term
hereof, obtain or provide and keep in full force for the benefit of Lessor, as
an additional named insured (i) general public liability insurance, insuring
Lessor against any and all liability or claims or liability arising out of,
occasioned by or resulting from any accident or other occurrence in or about the
Real Property arising out of any act or omission of Lessee or any officer,
employee, agent or contractor of Lessee, for injuries to any person or persons,
with limits of not less than One Million Dollars ($1,000,000.00) for injuries to
one person, One Million Dollars ($1,000,000.00) for injuries to more than one
person, in any one accident or occurrence, and for loss or damage to the
property of any person or persons, for not less than One Million Dollars
($1,000,000.00); (ii) insurance with respect to the Improvements against loss or
damage by fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles, smoke and other risks from time to
time included under "extended coverage" policies, in an amount equal to at least
One Hundred Percent (100%) of the full replacement value of the Improvements
and, in any event, in an amount sufficient to prevent Lessor or Lessee from
becoming a co-insurer of any partial loss under the applicable policies, which
shall be written on a replacement cost basis; (iii) appropriate workers'
compensation or other insurance against liability arising from claims of workers
in respect of and during the period of any work on or about the Real Property;
and (iv) insurance against such other hazards and in such amounts as is
customarily carried by owners and operators of similar properties, and as Lessor
may reasonably require for its protection. Lessee shall comply with such other
requirements as Lessor, or any mortgagee, may from time to time reasonably
request for the protection by insurance of their respective interests. The
policy or policies of insurance maintained by Lessee pursuant to this Paragraph
shall be of a company or companies authorized to do business in California and a
certificate thereof shall be delivered
to Lessor, together with evidence of the payment of the premiums therefor, not
less than fifteen (15) days prior to the commencement of the Term hereof or of
the date when Lessee shall enter upon the Leased Premises, whichever occurs
sooner. At least fifteen (15) days prior to the expiration or termination date
of any policy, Lessee shall deliver a certificate of a renewal or replacement
policy with proof of the payment of the premium therefor. Any such insurance
required by this Paragraph may, at Lessee's option, be provided through a
blanket policy or policies.
(b) Lessee shall indemnify Lessor and hold Lessor harmless from and
against all claims, actions, losses, damages, liabilities and expenses
(including reasonable attorneys' fees) incurred by or asserted against Lessor,
whether during or after the Term of this Agreement, including by reason of
personal injury, loss of life, or damage to property, caused by or resulting
from in whole or any material part, (i) any breach of this Agreement by Lessee,
(ii) any negligent or intentional act or omission of Lessee, its employees,
agents, invitees or contractors, whether in, on, about or with respect to the
Leased Premises or otherwise, (iii) the use by Lessee of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessee on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessee pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessee's request or this
Agreement; provided, however, that Lessee shall not be required to indemnify
Lessor for any damages, injury, loss or expense arising out of Lessor's or its
agents', employees', invitees' or contractors' negligent acts or omissions.
(c) If Lessor so elects by notice to Lessee, Lessee shall have the
obligation of defending, at its sole cost and expense, by counsel selected by
Lessee and approved by Lessor (such approval not to be unreasonably withheld),
against any claim to which the foregoing indemnity may apply. Lessor may assume,
or require that such defense be assumed, by Lessor and counsel selected by
Lessor, at the cost and expense of Lessee if Lessor is for any reason
dissatisfied with the defense by Lessee, or believes that its interests would be
better served thereby. In any case where Lessee is defending any such claim,
Lessor may participate in the defense thereof by counsel selected by it, but at
Lessor's expense. Lessee shall not enter into any settlement of any claim
without the consent of Lessor, which consent shall not be unreasonably withheld.
(d) Lessor shall indemnify Lessee and hold Lessee harmless from and
against all claims, actions, losses, damages, liabilities and expenses
(including reasonable attorneys' fees) incurred by or asserted against Lessee,
whether during or after the Term of this Agreement, including by reason of
personal injury, loss of life, or damage to property, caused by or resulting
from in whole or any material part, (i) any breach of this Agreement by Lessor,
(ii) any negligent or intentional act or omission of Lessor, its employees,
agents, invitees or contractors, whether in, on, about or with respect to the
Leased Premises or otherwise, (iii) the use by Lessor of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessor on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessor pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessor's request or this
Agreement; provided, however, that Lessor shall not be required to indemnify
Lessee for any damages, injury, loss or expense arising out of Lessee's or its
agents', employees', invitees' or contractors' negligent acts or omissions.
(e) If Lessee so elects by notice to Lessor, Lessor shall have the
obligation of defending, at its sole cost and expense, by counsel selected by
Lessor and approved by Lessee (such approval not to be unreasonably withheld),
against any claim to which the foregoing indemnity may apply. Lessee may assume,
or require that such defense be assumed, by Lessee and counsel selected by
Lessee, at the cost and expense of Lessor if Lessee is for any reason
dissatisfied with the defense by Lessor, or believes that its interests would be
better served thereby. In any case where Lessor is defending any such claim,
Lessee may participate in the defense thereof by counsel selected by it, but at
Lessee's expense. Lessor shall not enter into any settlement of any claim
without the consent of Lessee, which consent shall not be unreasonably withheld.
(f) Nothing in this Agreement shall be construed so as to authorize
or permit any insurer of Lessor or Lessee to be subrogated to any right of
Lessor or Lessee against the other. Each of Lessor and Lessee hereby releases
the other to the extent of its insurance coverage for any loss or damage caused
by fire or any of the extended coverage casualties, even if such fire or other
casualty shall be brought about by the fault or negligence of the other party or
persons for whose acts said party is liable.
SECTION 5
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REPRESENTATIONS WARRANTIES AND OTHER OBLIGATIONS
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(a) Lessor represents and warrants that:
(i) The execution and performance of this Agreement shall
not constitute a breach or violation under any Agreement to which Lessor is a
party.
(ii) To the best of Lessor's knowledge, there are no
violations of any federal, state, county or municipal law, ordinance, order,
regulations or requirement with respect to the Leased Premises, and as of the
date of this Agreement, no notice of any kind relating thereto (which would
adversely affect the transactions contemplated by this Agreement) has been
issued by public authorities having jurisdiction over the Leased Premises.
(iii) No person or party other than Lessor has a right to
use the Leased Premises for any purpose which would affect Lessee's right to use
the Leased Premises as contemplated hereunder.
(iv) Lessor has not received written notice of pending or
contemplated condemnation proceedings affecting the Leased Premises or any part
thereof.
(v) To the best of Lessor's knowledge, there is no action,
suit or proceeding pending or threatened against or affecting the Leased
Premises or any portion thereof and Lessor has not received notice written or
otherwise of any litigation affecting or concerning the Leased Premises relating
to or arising out of its ownership, management, use or operation. Lessor shall
give to Lessee prompt notice of institution of any such proceeding or
litigation.
(vi) To the best of Lessor's knowledge, there are presently
no proceedings for overdue real estate taxes assessed against the Leased
Premises for any fiscal period.
(vii) Lessor shall promptly advise Lessee in writing of
any written notice received from any governmental authority to comply with the
terms, provisions and requirements of any local, state and federal laws,
ordinances, directives, orders, regulations and requirements which apply to any
portion of the Leased Premises or to any adjacent street or other public area or
to the maintenance, operation or use thereof.
(viii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, have
been duly and validly authorized by all necessary actions on the part of Lessor
(none of which actions have been modified or rescinded and all of which actions
are in full force and effect). This Agreement constitutes a valid and binding
agreement and obligation of Lessor, enforceable in accordance with its terms.
(ix) Subject to liens and encumbrances of record, Lessor
owns good and marketable title in fee simple to the Real Property on which the
Leased Premises are located, and Lessor acknowledges that Lessee is relying upon
the foregoing representation and warranty in entering into this Agreement and in
expending moneys in connection herewith. Lessor shall not encumber or permit any
encumbrances, liens or restrictions on Lessee's Installations, except with the
prior written approval of Lessee.
(b) Each party shall comply in all material respects with all local,
state and federal laws, statutes, ordinances, rules, regulations, orders and
decrees that it knows to be applicable in connection with its activities and
operations at the Leased Premises, and Lessor shall require the same
representation and warranty from all additional users of the facilities at the
Leased Premises.
(c) The parties agree that, during the Term of this Agreement neither
party shall intentionally do anything at the Leased Premises which will
interfere with or adversely affect the operations of the other party.
(d) In the event that during the Term of this Agreement there shall
be an actual condemnation or foreclosure and taking of all of the Leased
Premises, or a portion thereof such that it renders the premises unsuitable for
broadcasting, this Agreement may be terminated by written notice from either
party to the other and thereafter each of the parties shall be relieved of any
future liability to the other under this Agreement, except as to obligations
accrued and not yet discharged at the date of termination. Following any
condemnation or foreclosing order, Lessee may continue to use the property for
operations under the terms of this Agreement until Lessee finds and begins to
utilize new facilities or until prevented by the condemning or foreclosing
authority from utilizing the Leased Premises, whichever occurs first.
(e) Lessee represents and warrants that its Installations to be
located on or about the Leased Premises, together with the existence of the
equipment of Lessor, and the operation thereof do not and will not result in
exposure of workers or the general public to levels of radio frequency radiation
in excess of the "Radio Frequency Protection Guides" recommended in "American
National Standard Safety Levels With Respect to Human Exposure to Radio
Frequency Electromagnetic Fields, 300 KHz to 100 GHz," issued by the American
National Standards Institute ("Acceptable Radio Frequency Radiation Standards").
(f) Lessee covenants that it will not at any time during the Term of
this Agreement, transmit, store, handle or dump toxic or hazardous wastes
anywhere at or around the Leased Premises.
(g) Lessee shall promptly advise Lessor in writing of any written
notice received from any governmental authority to comply with the terms,
provisions and requirements of any local, state and federal laws, ordinances,
directives, orders, regulations, and requirements which apply to any portion of
the Leased Premises or to any adjacent street or other public area or the
maintenance, operation or use thereof.
(h) Lessee represents and warrants that the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
actions on the part of Lessee (none of which actions have been modified or
rescinded and all of which actions are in full force and effect). This Agreement
constitutes a valid and binding agreement and obligation of Lessee, enforceable
in accordance with its terms.
(i) Lessee warrants unto Lessor that the Improvements (including the
radio tower(s) located on the Real Property) are and will remain in material
compliance at all times during the Term and any Extension Term with all federal,
state, county, municipal, local, administrative and other governmental laws,
statutes, ordinances, codes, rules, regulations and orders pertaining thereto,
including, without limitation, to the extent applicable, all zoning laws and
building codes and all regulations of the Federal Aviation Administration
("FAA") and the Federal Communications Commission ("FCC").
(j) In case of any material damage to or destruction of the Real
Property or any part thereof, Lessee shall promptly give written notice thereof
to Lessor and any mortgagee, generally describing the nature and extent of such
damage or destruction. In case of any damage to or destruction of the
Improvements or any parts thereof, Lessee, whether or not the insurance
proceeds, if any, on account of such damage or destruction shall be sufficient
for the purpose, at its sole expense, shall promptly commence and complete the
restoration, replacement or rebuilding of the Improvements as nearly as possible
to their value, condition and character immediately prior to such damage or
destruction.
(k) Lessee will execute, acknowledge and deliver to the Lessor,
promptly upon request, a certificate certifying that (i) this Agreement is
unmodified and in full force and effect (or, if there have been modifications,
that the Agreement is in full force and effect, as modified, and stating the
modifications), (ii) the dates, if any, to which rent and other sums payable
hereunder have been paid, and (iii) no notice has been received by Lessee of any
default which has not been cured, except as to defaults specified in said
certificate. Any such certificate may be relied upon by any prospective
purchaser or mortgagee of the Real Property or any part thereof.
(l) Lessor will execute, acknowledge and deliver to the Lessee or any
mortgagee, promptly upon request, a certificate certifying that (i) this
Agreement is unmodified and in full force and effect (or, if there have been
modifications, that the Agreement is in full force and effect, as modified, and
stating the modifications), (ii) the dates, if any, to which rent and other
sums payable hereunder have been paid, and (iii) whether or not, to the
knowledge of Lessor, there are then existing any defaults under this Agreement
(and if so, specifying the same). Any such certificate may be relied upon by any
prospective purchaser transferee or mortgagee of Lessee's interest under this
Agreement.
SECTION 6
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EVENTS OF DEFAULT
-----------------
(a) Any of the following events shall constitute a default on the
part of Lessee:
(i) The failure of Lessee to pay rent or additional rent,
and continuation of such failure for more than ten (10) days after Lessee's
receipt of written notice thereof from Lessor; provided, however, that Lessor
shall not be required to provide such written notice to Lessee more than twice
in any twelve (12) month period prior to declaring such failure to pay an event
of default; or
(ii) The failure of Lessee to cure any other default under
the terms hereof, and continuation of such failure to cure for more than thirty
(30) days after notice by Lessor, provided, however, that if the nature of
Lessee's default is such that more than thirty (30) days is required for its
cure, then Lessee shall not be deemed to be in default if Lessee has commenced
such cure within the thirty (30) day period, demonstrates to Lessor's reasonable
satisfaction that such default is curable and thereafter diligently prosecutes
such cure to completion; or
(iii) Lessee is finally and without further right of appeal
or review, adjudicated a bankrupt or insolvent, or has a receiver appointed for
all or substantially all of its business or assets on the ground of its
insolvency, or has a trustee appointed for it after a petition has been filed
for Lessee's reorganization under the Bankruptcy Act of the United States, or
any future law of the United States having the same general purpose, or if
Lessee shall make an assignment for the benefit of its creditors, or if Lessee's
interest hereunder shall be levied upon or attached, which levy or attachment
shall not be removed within twenty (20) days from the date thereof.
(b) If an event of default on the part of Lessee shall occur at any
time, Lessor, at its election, may give Lessee a notice of termination
specifying a day not less than thirty (30) days thereafter on which the Term of
this Agreement shall end, unless such default shall be cured within said period,
or, if the default is such that more than thirty (30) days is required for its
cure, unless Lessee has commenced such cure within said period. If such notice
is given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, but Lessee shall remain liable for the payment of rent during the full
period which would otherwise constitute the balance of the Term of this
Agreement; and without prejudice to any other right or remedy which it may have
hereunder or by law, and notwithstanding any waiver of any prior breach of
condition or event of default hereunder, Lessor may re-enter the Leased Premises
either by reasonable force or otherwise, or dispossess Lessee, any legal
representative of Lessee or other occupant of the Leased Premises by appropriate
suit, action or proceeding and remove its effects and hold the Leased Premises
as if
this Agreement had not been made.
(c) The failure of Lessor to cure any default under the terms hereof,
and continuation of such failure to cure for more than thirty (30) days after
notice by Lessee, shall constitute a default on the part of Lessor; provided,
however, that if the nature of Lessor's default is such that more than thirty
(30) days is required for its cure, then Lessor shall not be deemed to be in
default if Lessor has commenced such cure within the thirty (30) day period,
demonstrates to Lessee's reasonable satisfaction that such default is curable
and thereafter diligently prosecutes such cure to completion.
(d) If an event of default on the part of Lessor shall occur at any
time, Lessee, at its election, may give Lessor a notice of termination
specifying a day not less than thirty (30) days thereafter on which the Term of
this Agreement shall end, unless such default shall be cured within said period,
or, if the default is such that more than thirty (30) days is required for its
cure, unless Lessor has commenced such cure within said period. If such notice
is given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, and Lessee shall not be liable for payment of rent for any period after
such expiration.
SECTION 7
---------
ASSIGNMENT
----------
Lessee shall not assign this Agreement nor sublet any portion of the
Leased Premises without the prior written consent of the Lessor, which consent
shall not be unreasonably withheld. Notwithstanding any assignment or sublease,
Lessee shall remain primarily liable under this Agreement.
SECTION 8
---------
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
--------------------------------------------
This Agreement shall not be a lien against the Leased Premises in
respect to any mortgages and security agreements placed or hereafter to be
placed by Lessor upon the Leased Premises. The recording of such mortgages and
security agreements shall have preference and precedence and be superior and
prior in lien to this Agreement, irrespective of the date of recording, and
Lessee agrees to execute any instruments, without cost, which may be deemed
necessary or desirable to further effect the subordination of this Agreement.
Lessor shall make a reasonable effort to obtain from any mortgagees or lenders
holding an interest in the nature of a mortgage in the Leased Premises an
agreement that the mortgagee or lender shall not disturb Lessee's quiet
possession in the event of foreclosure. If any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by the Lessor encumbering the Leased Premises,
Lessee shall attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as the Lessor under this Lease.
SECTION 9
---------
NON-LIABILITY OF LESSOR
-----------------------
Lessor shall not be liable for any damages or injury which may be
sustained by Lessee or any other person by reason of the failure, breakage,
leakage or obstruction of the water, sewer, plumbing, roof, drains, leaders,
electrical, air conditioning or any other equipment; or by reason of the
elements; or resulting from the carelessness, negligence or improper conduct of
Lessee, its agents, employees, contractors, invitees, assignees or successors;
or attributable to any interference with or the interruption of or failure of
any services, beyond the control of Lessor, to be supplied by Lessor.
SECTION 10
----------
QUIET ENJOYMENT
---------------
(a) Lessor agrees that it shall not enforce any unreasonable rules or
regulations which would unduly prejudice the conduct of Lessee's business, or
which would prevent full and free access to the Leased Premises by Lessee, as
herein provided.
(b) Lessor reserves and shall at all times have the right to re-enter
the Real Property to inspect the same, to supply any service to be provided by
Lessor to Lessee hereunder, and to show the Real Property to prospective
purchasers, mortgagees, or lessees, to post notices of non-responsibility,
without abatement of rent, provided entrance to the Real Property shall not be
denied Lessee.
SECTION 11
----------
SALE OF LEASED PREMISES BY LESSOR
---------------------------------
Notwithstanding any of the provisions of this Lease, Lessor (a) may
assign, in whole or in part, Lessor's interest in this Lease and (b) may sell
all or part of the Real Property. In the event of any sale or exchange of the
Leased Premises by Lessor and assignment by Lessor of this Lease, Lessor shall
be and is hereby relieved of all liability under any and all of its covenants
and obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Leased Premises occurring after the
consummation of such sale or exchange and assignment, but only upon the
condition that, as part of such sale or exchange, Lessor will cause the grantee
to agree in writing to assume to carry out any and all of the covenants and
obligations of Lessor under this Lease occurring after the consummation of
Lessor's assignment of its interest in and to this Lease.
SECTION 12
----------
BROKERAGE
---------
The parties acknowledge and agree that this Agreement has not been
brought about as a result of the services of any real estate broker, firm or
corporation, and each indemnifies and saves the other harmless from any and all
claims from any person(s) claiming to have rendered real estate services in
connection with this Agreement.
SECTION 13
----------
SURRENDER OF PREMISES
---------------------
Upon the expiration of the Term hereof, Lessee shall surrender the
Leased Premises, and, at Lessor's option, all interest of the Lessee in and to
the Improvements (including the radio towers located on the Land), to Lessor in
good order and condition, reasonable wear and tear excepted. Any equipment,
fixtures, goods or other property of Lessee not removed within ten (10) days
after any quitting, vacating or abandonment of the Leased Premises, or upon
Lessee's eviction therefrom, shall be considered abandoned, and Lessor shall
have the right, without notice to Lessee, to sell or otherwise dispose of same
without having to account to Lessee for any part of the proceeds of such sale.
SECTION 14
----------
NOTICES
-------
All notices, demands, and requests required or permitted to be given
hereunder shall be in writing and sent certified mail, return receipt requested,
and if to Lessor, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attn:
Xxxxxx X. Xxxxxxxx III, and if Lessee, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, Attn: Accounting. Either party hereto may change the place
for notice to it by sending like written notice to the other party hereto.
SECTION 15
----------
BINDING NATURE
--------------
The provisions of this Agreement shall apply to, bind and inure to
the benefit of Lessor and Lessee, their respective successors, legal
representatives or assigns. The terms of this Agreement and any disputes arising
therefrom, shall be governed by the laws of the State of California.
SECTION 16
----------
ENTIRE AGREEMENT
----------------
This Agreement contains the entire understanding and agreement between the
parties. No representative, agent or employee of Lessor has been authorized to
make any representations or promises with reference to the within agreement or
to vary, alter or modify the terms hereof. No additions, changes or
modifications shall be binding unless reduced to writing and signed by the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
LESSOR: LESSEE
ATSINGER FAMILY TRUST SOUTH TEXAS BROADCASTING, INC.
/s/ XXXXXX X. XXXXXXXX, III /s/ XXXX X. XXXXXXXXX
----------------------------------- --------------------------------------
XXXXXX X. XXXXXXXX, III XXXX X. XXXXXXXXX
Trustee Vice-President
/s/ XXXX X. XXXXXXXX
___________________________________
XXXX X. XXXXXXXX
Trustee
XXXXXX X. XXXXXXXX
REVOCABLE LIVING TRUST
/s/ XXXXXX X. XXXXXXXX
-----------------------------------
XXXXXX X. XXXXXXXX
Trustee
EXHIBIT A
---------
REAL PROPERTY
-------------
49.09 acres consisting of Tract #1(1.04 acres), Tract #2 (9.41 acres) and Tract
#3 (38.64 acres) out of the X. Xxxxxxx Survey, A-745 and the X. Xxxxxx Survey,
A-1424, Xxxxxx County, Texas.
Tract One
---------
The surface only of 1.04 acres of land, more or less, lying and being
situated partly in the X. Xxxxxx Survey, Abstract 1424 and partly in the X.
Xxxxxxx Survey, Abstract 745, Xxxxxx County, Texas, and being a portion of
that tract designated as private road, in a partition of the Xxx. Xxxx
Xxxxxxxxxx 121.68 acre tract out of the said X. Xxxxxx Survey and the said
X. Xxxxxxx Survey; said 1.04 acres of land, more or less, being more
particularly described by metes and bounds as follows:
BEGINNING at a 1" iron pipe from which a 12" Sweet Gum X bears N
87(degrees) 45' W 35.5 feet and a 5" Pine X bears N 27(degrees) 15' E 30.0
feet and which 1" pipe marks the northwesterly, corner of X. X. XxXxxx
Survey and the northeasterly corner of the said Xxxxxx Survey, as fenced
and generally recognized;
THENCE S 33(degrees) 11' 28" E along a fence and the westerly boundary of
the said XxXxxx Survey and the easterly boundary of the said Xxxxxx Survey
697.69 feet to a 3/4" iron pipe from which a 8" Post Oak X bears N
62(degrees) 40' W 23.3 feet and a 12" Post Oak X bears S 2(degrees) 00' W
58.2 feet;
THENCE S 56(degrees) 55' 32" W 60.00 feet, to a 3/4" iron pipe marking the
southeasterly corner of Share 3 of the aforementioned Xxx. Xxxx Xxxxxxxxxx
partition;
THENCE N 33(degrees) 11' 28" W parallel to and 60.0 feet at right angles
from the easterly line of the said Xxxxxx Survey and the westerly line of
the said XxXxxx Survey, at 697.69 feet cross the northerly boundary of the
said Xxxxxx Survey and the southerly boundary of the said Xxxxxxx Survey,
in all 757.69 feet to a 3/4" iron pipe which marks the northeasterly corner
of the said Share 3 and an angle point in the southerly line of Share 2 of
the said partition;
THENCE N 56(degrees) 55' 32" E parallel to and 60.0 feet at right angles from
the southerly boundary of the said X. Xxxxxxx Survey and the northerly boundary
of the said XxXxxx Survey and the northerly boundary of the XxXxxx Survey 60.00
feet to a point;
THENCE S 33(degrees) 11' 28" E 60.00 feet to the point or place of beginning and
containing as aforesaid 1.04 acres of land, more or less.
Tract Two
---------
The surface only of 9.41 acres of land, more or less, lying and being situated
in the X. Xxxxxxx Survey, Abstract 745, Xxxxxx County, Texas, and being a
portion of that tract of land designated as Share 2 of a partition of the Xxx.
Xxxx Xxxxxxxxxx 121.68 acre tract out of the X. Xxxxxx Survey, Abstract 1424,
and the X. Xxxxxxx Xxxxxx, Xxxxxxxx 000, Xxxxxx Xxxxxx, Xxxxx; said 9.41 acres
of land, more or less, being more particularly described by metes and bounds as
follows:
BEGINNING at a 3/4" iron pipe from which a 4" Pine X bears N 2(degrees) 45' E
38.0 feet and a 14" Post Oak X bears N 74(degrees) 05' W 35.6 feet, said pipe
being located in the westerly line of the said X. Xxxxxxx Survey and the
easterly line of the Xxxx Xxxxxxx Survey as fenced and generally recognized and
being N 33(degrees) 17' 29" w 505.26 feet from the southwesterly corner of the
said Xxxxxxx Survey and marking the northwesterly corner of Share 3 of the
aforementioned partition and the southwesterly corner of Share 2 of the said
partition;
THENCE N 56(degrees) 55' 32" E 1778.59 feet to a 5/8" iron rod for corner from
which a 24" Post Oak X bears N 89(degrees) 00' W 60.2 feet and a 24" Pin Oak X
bears 5 29(degrees) 00' W 50.5 feet;
THENCE S 33(degrees) 11' 28" E 445.26 feet to a point, same being located N
33(degrees) 11' 28" W 60.00 feet from the northwesterly corner of the X. X.
XxXxxx Survey and the northeasterly corner of the X. Xxxxxx Survey as fenced and
generally recognized;
THENCE S 57(degrees) 01' 28" W parallel to and 60.0 feet at right angles from
the southerly line of the said Xxxxxxx Survey and the northerly line of the X.
Xxxxxx Survey 60.00 feet to a 3/4" iron pipe for corner, same being the
northeasterly corner of the aforementioned Share 3;
THENCE S 71(degrees) 26' 32" W along the dividing line between the said Share 2
and Share 3 a distance of 1776.23 feet to the point of beginning and containing
9.41 acres of land, more or less;
Tract Three
-----------
The surface only of 38.64 acres of land, more or less, lying and being situated
partly in the X. Xxxxxx Survey, Abstract 1424 and partly in the X. Xxxxxxx
Survey, Abstract 745, Xxxxxx County, Texas, and being all of that tract of land
designated as Share 3 of a partition of the Xxx. Xxxx Xxxxxxxxxx 121.68 acre
tract out of the said X. Xxxxxx Survey and the said X. Xxxxxxx Survey; said
38.64 acres of land, more or less, being more particularly described by metes
and bounds as follows:
BEGINNING at a 3/4" iron pipe from which a 10" Pine X bears N 56(degrees) 00' E
41.00 feet and a 16" Post Oak X bears N 18(degrees) 00' E 47.00 feet, said pipe
being in. the westerly boundary of the said X. Xxxxxx Survey and the easterly
boundary of the said Xxxx Xxxxxxx Survey, Abstract 742, and being located N 33
(degrees) 17'. 28" W 736.8 feet from the southeasterly corner of the said
Xxxxxxx Survey which is also a re-entrant corner of the said Xxxxxx Survey as
fenced and generally recognized;
THENCE N 33(degrees) 17' 28" W along a fence marking the westerly line of the
said Xxxxxx Survey and the easterly line of the said Xxxxxxx Survey at 697.69
feet pass the northwesterly corner of the said Xxxxxx Survey and the
southwesterly corner of the said X. Xxxxxxx Survey, and continuing along the
westerly line of the said Xxxxxxx Survey a total distance of 1202.95 feet to a
3/4" iron pipe for corner from which a 4" Pipe X bears N 2(degrees) 45' E 38.0
feet and a 14" Post Oak X bears N 74(degrees) 05' W 35.6 feet, said pipe also
marking the southwesterly corner of Share 2 of the aforementioned partition;
THENCE N 71(degrees) 26' 32" E along the dividing line between Shares 2 and 3 a
distance of 1776.23 feet to a 3/4" iron pipe for corner, said pipe being located
N 33(degrees) 11' 28" W 60.0 feet from a point in the southerly line of the said
Xxxxxxx Survey which is S 57(degrees) 01' 28" W 60.0 feet from the northeasterly
corner of the said Xxxxxx Survey;
THENCE S 33(degrees) 11' 28" E at 60.0 feet cross the southerly line of the said
Xxxxxxx Survey and the northerly line of the said Xxxxxx Survey and continuing
parallel to and 60.0 feet at right angles from the easterly line of the said
Xxxxxx Survey and the westerly line of the X. X. XxXxxx Survey, Abstract 1415, a
distance of 757.69 feet to a 3/4" iron pipe for corner;
THENCE S 56(degrees) 55' 32" w along the southerly line of the said Share 3 a
distance of 1716.50 feet to the point or place of beginning and containing as
aforesaid 38.64 acres of land, more or less.
EASEMENTS AND RESTRICTIONS OF RECORD:
(a) Thirty (30) foot pipe line easement granted to Houston Pipe Line Company
as reflected by instrument recorded in Volume 5249, page 521, Deed Records of
Xxxxxx County, Texas.
(b) Pipe line easement granted to Houston Pipe Line Company as reflected by
instrument recorded in Volume 2408, page 577, Deed Records of Xxxxxx County,
Texas.
(c) Terms, conditions, and stipulations contained in Oil and Gas Lease from
X. X. Xxxxxxxx, et al, to X. X. Xxxxxxx, recorded in Volume 334, page 104,
Contract Records of Xxxxxx County, Texas, as amended by instrument recorded
in Volume 338, page 686, Contract Records of Xxxxxx County, Texas, and as
further supplemented or amended by Pooling Agreement recorded in Volume 399,
page 263, Contract Records of Xxxxxx County, Texas.
(d) All prior reservations of minerals in and under the above described
property.
(e) Lease dated September 15, 1983, as filed for record under Xxxxxx County
Clerk's File No. J-679462, between Lake Huron Broadcasting Corporation, as
Lessor, and the United States of America, as Lessee.
AGREEMENT
---------
EXHIBIT A
---------
EASEMENTS AND RESTRICTIONS OF RECORD:
(a) Thirty (30) foot pipe line easement granted to Houston Pipe Line Company
as reflected by instrument recorded in Volume 5249, page 521, Deed Records of
Xxxxxx County, Texas.
(b) Pipe line easement granted to Houston Pipe Line Company as reflected by
instrument recorded in Volume 2408, page 577, Deed Records of Xxxxxx County,
Texas.
(c) Terms, conditions, and stipulations contained in Oil and Gas Lease from
X. X. Xxxxxxxx, et al, to X. X. Xxxxxxx, recorded in Volume 334, page 104,
Contract Records of Xxxxxx County, Texas, as amended by instrument recorded
in Volume 338, page 686, Contract Records of Xxxxxx County, Texas, and as
further supplemented or amended by Pooling Agreement recorded in Volume 399,
page 263, Contract Records of Xxxxxx County, Texas.
(d) All prior reservations of minerals in and under the above described
property.
(e) Lease dated September 15, 1983, as filed for record under Xxxxxx County
Clerk's File No. J-679462, between Lake Huron Broadcasting Corporation, as
Lessor, and the United States of America, as Lessee.
