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EXHIBIT 10.05.22
TOWER LEASE AGREEMENT - SPLENDORA, TEXAS
This agreement is entered into on this 1st day of June, 0000, xxxxxxx XXXXX
XXXXX BROADCASTING, INC. (KKHT-FM) ("LESSEE"), and Sonsinger Broadcasting
Company of Houston, LP. ( "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 February following the
first anniversary of the Commencement Date and each subsequent first day of
February this Agreement remains in effect.
1.2 AGREEMENT means this Tower 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 device identified as "Antenna" on Schedule 5.1
consisting of a Commercial FM Broadcast Main and Auxiliary Antenna, also a STL
antenna as identified in Schedule 5.1 The Antennas must be designed so as to
reduce, to the fullest extent possible, any wind loading on the Tower, as
hereinafter defined.
1.4 ANTENNA LOCATION means the location or locations for the placement
of the Antenna as set forth in Section 5.1 hereof.
1.5 ARTICLE or ARTICLES means one or more of the articles of this
Agreement.
1.6 CABLE ROUTE means the locations designed from time to time by
Lessor for placement of Lessee's cabling on Lessor's Property, as hereinafter
defined.
1.7 CABLING means the coaxial, waveguide, wire or other cabling or
transmission lines of Lessee not to exceed one such line for each antenna on the
Tower.
1.8 COMMENCEMENT DATE means 12:01 AM on the date specified in this
Agreement as the Commencement Date of the Initial Term, as hereinafter defined.
1.9 EQUIPMENT means any device, equipment, structure, buildings,
material and apparatus used or useful in the operation of a Commercial FM
Broadcast Radio Transmitting Station and associated equipment approved by Lessor
for use on Lessor's Property. Notwithstanding anything in this Agreement to the
contrary, the Equipment shall be paid for, furnished and installed by Lessee.
1.10 EQUIPMENT SPACE means the area provided for the Transmitters and
associated broadcast transmission equipment as designated in Schedule 5.2 by
Lessor 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 at the
Equipment Space pursuant to this Agreement shall be paid for, constructed and
maintained by Lessee.
1.11 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.
1.12 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.
1.13 INITIAL TERM means the period from the Commencement Date to the
date set forth in Section 3.3.
1.14 LEASED SPACE refers collectively or individually to any or every
Equipment Space, Cable Route, and/or Antenna Location, as the context may
indicate.
1.15 LESSEE'S EMPLOYEES means any employee, officer, or partner of
Lessee; any agent, contractor, or subcontractor of Lessee, and any employee,
officer, or partner of such agent, contractor, or subcontractor; and any person
placed on the Authorized Entry List, as set forth in Section 8.2, at the request
of Lessee.
1.16 LESSOR'S PROPERTY means the land, buildings, towers, fixtures, and
other improvements comprising the Lessor's premises in which the Leased Space is
located.
1.17 MONTHLY RENT shall have the meaning as defined in Section 4.2(c)
hereof.
1.18 RENT means the consideration paid by Lessor to Lessee pursuant to
this Agreement.
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1.19 SCHEDULE or SCHEDULES means one or more schedules attached to this
Agreement.
1.20 INTENTIONALLY REMOVED
1.21 SECTION or SECTIONS means one or more of the sections of this
Agreement.
1.22 TOWER means the antenna tower located upon Lessor's Property in
Splendora, Texas.
ARTICLE II
SCOPE OF THE AGREEMENT
2.1 LEASE. This Agreement sets forth the terms and conditions under
which Lessor agrees to lease space to Lessee. Lessee agrees to use the Leased
Space 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 Space solely for operating
the Antenna and Equipment for it's Commercial Broadcast Tramsmitter site, only
for the purpose and benefit of South Texas Broadcasting Inc. Lessee will not
make any other use of the Leased Space and related rights provided under this
Agreement. Lessee shall not use Lessor's Property or any portion thereof,
including the Equipment Space, for purpose of maintaining the studios , offices
, off premises storage of Lessee.
2.3 NO OTHER RIGHTS. Only the Leased Space 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 COMMENCEMENT CERTIFICATION. When the Commencement Date has been
determined, such date shall be evidenced by a Certificate, in form and substance
similar to Exhibit A, executed and acknowledged by Lessor and Lessee and
delivered by each to the other.
3.3 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 as
provided in Section 3.4, the Expiration Date shall be the last day of the term
as so extended.
3.4 LEASE OPTION. 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
one (1) period of five (5) years each (the "Extension Term"), on the same terms,
covenants and conditions herein contained. The word "Term" as used in this
Agreement shall be deemed to include the Extension Term when and if the
Agreement is extended. The option to extend the Term shall automatically be
deemed to have been exercised unless Lessee shall deliver to Lessor written
notice of Lessee's election not to extend as provided herein on or before one
hundred eighty (180) days prior to the Expiration Date.
3.5 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,
Cabling and Equipment 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 reason of any violation of the
Communications Act of 1934, as amended, arising out of Lessee's use of the
Leased Premises; 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, or
such earlier date as this Agreement is terminated as provided herein, at:
Sonsinger Broadcasting of Houston LP
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 $ 150,000.00 per
annum, payable in equal monthly installments of $12,500.00 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 to
be paid by Lessee pursuant to this Section 4.2.
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.
4.6 INTENTIONALLY REMOVED
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ARTICLE V
GRANT OF LEASED SPACE AND EQUIPMENT SPACE
5.1 ANTENNA LOCATION. Lessor, in consideration of the rents to be paid
and the covenants contained herein, hereby leases to Lessee the Antenna Location
as generally depicted on Schedule 5.1 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 of the Antenna Location shall be performed by Lessee and at the expense
of Lessee.
5.2 EQUIPMENT SPACE. Lessor, in further consideration of the rents to
be paid and covenants contained herein, hereby grants to Lessee the Equipment
Space as reasonably determined by Lessor, for the limited purpose of installing,
maintaining, operating, repairing, or removing the 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 Space. All site work for
the use of the Equipment Space shall be performed by Lessee and at the expense
of Lessee. In the event Lessor determines, in its sole and absolute discretion
and which determination shall be specified in advance of the Commencement Date,
that Lessee's Equipment shall not reside in the buildings and other structures
on Lessor's property currently designed to house such equipment, Lessee, at
Lessee's sole cost and expense, shall be required to construct such buildings or
structures on that portion of Lessor's property designated by Lessor, at its
sole and absolute discretion and as generally depicted on Schedule 5.2, and
Lessee shall house its Equipment in such buildings or structures.
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.
5.3 CABLE ROUTE. Lessor, in further consideration of the rents to be
paid and the covenants herein contained, hereby leases to Lessee the Cable Route
as reasonably determined by Lessor, for the limited purpose of installing,
maintaining or repairing the Cabling 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 Cable Route. All site work for the use of the Cable Route
shall be performed by Lessee and at the expense of Lessee.
ARTICLE VI
INSTALLATIONS OF FACILITIES
6.1 SPECIFICATIONS. Lessor shall prepare specifications for Lessee's
delivery of the Facilities to Lessor's property and Lessee's installation of the
Facilities in the Leased Space. 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
or its tenants' 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
Employees 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 into the Leased Space
at Lessee's own risk and expense. Equipment shall be confined to the Equipment
Space, Cabling shall be confined to the Cabled Route, and the Antenna shall be
confined to the Antenna Location.
7.2 OTHER MATERIALS. In addition to the Facilities, Lessee may bring
into the Leased Space, 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 into the Leased Space 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 Space or in or upon the Lessor's
Property: 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.
7.4 EMERGENCY NUMBER. During the term of this Agreement and any
extension thereof, Lessor and Lessee shall provide the other with a telephone
number which, if called, will ring at a location that is staffed by their
respective agents 24 hours each and every day, 7 days a week and every week.
Lessee and Lessor shall notify each other promptly in the event of any change in
such telephone number.
7.5 NON-EXCLUSIVE USE.
(a) Lessee understands that Lessee's use of Lessor's Property
is non-exclusive and, subject to Lessee's right to use the Leased Space, Lessor
reserves the right to lease Lessor's Property, and any portion thereof, to any
person or entity, and Lessor shall have the right to retain all amounts received
therefrom. Lessee agrees that it shall cooperate with Lessor and Lessor's other
tenants in the use of Lessor's Property.
(b) In the event Lessor, in its sole and absolute discretion,
determines that Lessor's Property has an immediate shortage of required space
for future tenants, Lessor shall have the exclusive right to cause the
Facilities to be made available to such future tenants ("Multiple Use");
provided that in the event Lessor shall cause the Multiple Use to occur (i)
Lessee shall not be required to incur any cost or expense associated with the
Multiple Use, and (ii) the Multiple Use shall be compatible with and not
unreasonably interfere with Lessee's use of the Tower pursuant to this
Agreement.
7.6 LESSEE'S COOPERATION. In the event it is necessary for Lessee to
reduce, limit or cease its use of its Facilities or the Leased Premises so that
Lessor, or any other tenant of Lessor may install, maintain, repair, remove or
otherwise work upon their facilities in compliance with then current OSHA, FCC
and ANSI standards, including such standards relating to radio frequency
radiation, or such other and further health and safety standards imposed by any
federal, state or local authority, Lessee agrees to cooperate with the party
seeking to conduct said installation, maintenance, repairs, removal or work and
temporarily reduce, limit or cease its use of its Facilities or the Leased
Premises; provided said party takes all reasonable steps to minimize the amount
of time Lessee shall so operate and said party shall take all reasonable steps
to schedule such installation, maintenance, repairs, removal or work at a time
convenient to Lessee. Notwithstanding the foregoing, Lessee shall not be
entitled to any abatement in rent or any other amount, fees or damages for its
compliance with this Section.
ARTICLE VIII
RIGHT OF ENTRY
8.1 ACCESS. Lessee shall have reasonable access to the Leased Space;
provided access to the Leased Space shall be regulated pursuant to the rules and
regulations described in Section 23.5 and access to Tower 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".
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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 and services of the
Tower by Lessor and other tenants of 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, its customers or other tenants of Lessor's Property. Lessor
reserves the right to take any action needed to cease or prevent any harm to the
personnel, property and/or services of Lessor or its customers or any other
tenants of Lessor's Property.
9.2 LESSEE'S OBLIGATION TO RESTORE. Notwithstanding anything in this
Agreement to the contrary, if in the performance of any work, act or operation,
Lessee or Lessee's Employees disturb the property, equipment, broadcast pattern
or services of Lessor, its customers, , or other tenants of Lessor's property,
including, without limitation, such action as would require, pursuant to the
FCC, Lessor, its customers, or other tenants of Lessor's Property to perform a
partial or full proof of performance of their broadcast pattern, Lessee will
restore such property, equipment or broadcast pattern to its former condition
including, without limitation, conducting and performing such partial or full
proof of performance as may be required by the FCC, all at Lessee's expense. If
Lessee does not promptly restore to its former condition any property, equipment
or broadcasting pattern that was disturbed by Lessee or Lessee's Employees,
Lessor may restore such property to its former condition at Lessee's sole
expense; and the amount expended by Lessor pursuant to this Section 9.2 shall be
deemed reasonably incurred and immediately due and shall be repaid by Lessee,
together with interest at the rate of 18 percent per annum, upon demand of
Lessor. Notwithstanding any provision in this Agreement to the contrary, the
provisions of this Section 9.2 shall survive the termination of the Agreement
for 24 months.
9.3 INTERFERENCE WITH A BROADCASTING ACTIVITY.
(a) Lessee shall conduct its broadcasting activities in
accordance with all FCC regulations and sound engineering practices and shall
cooperate to the fullest extent with other tenants and Lessor so as to
anticipate and prevent any interference with any and all tenants installed prior
to the installation of the Facilities of Lessee or any alteration thereto. In
the event the use of Lessee's Facilities results in interference with, or signal
diminution of any equipment of any tenant installed prior to the installation of
the Facilities of Lessee or any alteration thereto and the equipment receiving
such interference is operating in accordance with manufacturer's specifications,
good engineering practice and the rules of the FCC, Lessee shall, upon notice
from Lessor, take all necessary steps to correct and eliminate the interference
and/or signal diminution within a reasonable length of time, but in no event
more than twenty-four (24) hours after having been given such notice by Lessor,
unless otherwise agreed to in writing. If the interference and/or signal
diminution is not eliminated within such twenty-four (24) hour period, Lessee
shall reduce power to a level resulting in the cessation of such interference,
or if that is unavailing, shall cease using the Facility causing the
interference and/or signal diminution, except for tests of short duration under
terms acceptable to Lessor in order to eliminate the problem, and Lessee will
not resume operation using full power of such equipment until the problem is
eliminated. Failure of Lessee to comply with the terms of this Section 9.3(a)
shall constitute a material breach of this Agreement.
(b) Lessee shall comply with any conditions which the FCC
and/or any other governmental authority may impose with respect to the
installation and/or operation of Lessee's Facilities which Lessee may install
on/or adjacent to the Tower and Equipment Space pursuant to this Agreement, and
shall pay for all legal, engineering and other expenses incident thereto.
(c) Lessor will neither make nor allow changes or
installations to be made on the Tower which will impair or interfere in any way
with Lessee's signals or broadcast operations. In the event such interference to
Lessee's signals or operations does occur, Lessor shall be so notified and shall
take immediate steps to correct such interference; provided nothing herein shall
require Lessor to correct or require to correct any interference caused by the
facilities of the Lessor or , any other tenant on the tower prior to the
installation of Lessee's Facilities or such matter which pre-dated the
installation of Lessee's Facilities, unless such interference is caused by a
defect or malfunction in the facilities or the operation thereof is not in
accordance with FCC authorizations. Failure of Lessor to comply with the term of
this Section 9.3(c) within thirty (30) days of notice, shall constitute a
material breach of this Agreement.
(d) Lessee shall also bear the full cost of purchase and
installation of any necessary filter devices as may be necessary to reduce
intermodulation products caused by the co-location of the Lessee'and other
pre-existing tenant's facilities and which are attributable to Lessee's
Facilities.
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(e) Lessor shall require in all future agreements to lease
space on the Tower, provisions substantially similar to those contained in
Article IX hereof. Notwithstanding the foregoing, any costs, fees or expenses,
including, without limitation, attorneys fees and a reasonable fee for any time
expended by Lessor's engineers, incurred by Lessor in enforcing said provisions
due to (i) interference caused by Lessee's Facilities or their operation or (ii)
at the request or demand of Lessee, shall be paid by Lessee within ten (10) days
after its receipt of written notice of said amounts; provided Lessor shall
assign its rights to collect said amounts from the interfering party if
different from Lessee.
9.4 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.
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 Space 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 Premises for Lessee's use including, without limitation, electricity, air
conditioning, heat, water, sewer, telephone, waste disposal and gas
(collectively referred to herein as "Utilities"). Lessor may, in its sole and
absolute discretion, provide said services to Lessee at Lessor's actual cost in
which event Lessee's use shall be separately metered and paid by Lessee to
Lessor within ten (10) days of Lessee's receipt of an invoice indicating the
amount due .
11.2 INTERRUPTION. Under no circumstances shall Lessor be liable for
any interruption or failure in the supply of any Utilities to the Leased Space,
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 Space.
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 Property, 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.
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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, Equipment, Cabling, 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 7.2.
13.2 ADDITIONAL REMEDY. In the event Lessee shall fail to make the
Maintenance required by Section 13.1 hereof within ten (10) days written notice
by Lessor (or, if required, such longer period of time if Lessee notifies Lessor
that such maintenance has commenced within ten (10) days and Lessee diligently
attempts to complete such Maintenance) or shall fail to perform any of its
duties pursuant to Article IX hereafter within 24 hours after notice from
Lessor, Lessor shall have the right to make such Maintenance or to perform such
duty for the account of Lessee, and any expense, charge or cost incurred by
Lessor shall be paid by Lessee to Lessor within ten (10) business days of its
receipt of invoice from Lessor. This Section 13.2 shall be construed as an
additional remedy granted to Lessor and not in limitation of any other rights
and remedies which Lessor has or may have in such circumstances.
13.3 LESSOR'S PROPERTY. Except as otherwise provided herein and repairs
occasioned by the negligence of the Lessee or Lessee's Employees or
representatives, Lessee shall not be responsible for repairs and or maintenance
of Lessor's Property. Without limiting the foregoing, the parties agree that
Lessor shall be responsible for maintaining the Tower in accordance with the
requirements of the FCC and the Federal Aviation Administration.
ARTICLE XIV
NO ALTERATIONS
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 Space, the Antenna, Equipment, and/or Cabling without the
prior written consent of the Lessor, which consent shall be given in Lessor's
sole discretion and election.
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 Space, 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 Space.
(c) There is no action, suit or proceeding pending or, to
Lessor's knowledge, threatened against or affecting the Leased Space or any
portion thereof and Lessor has not received notice, written or otherwise, of any
litigation affecting or concerning the Leased Space 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 Initial 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, 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
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").
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(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 Space 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.
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; or
(b) The failure of Lessee to comply with the provisions of
Article IX hereof.
(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 OF DEFAULT BY 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 Space 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 Space either by reasonable
force or otherwise, or dispossess Lessee, any legal representative of Lessee or
other occupant of the Leased Space by appropriate suit, action or proceeding and
remove its effects and hold the Leased Space 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 Space and Lessee specifically waives any and all
claims for damages against Lessor arising from a loss Utilities to the Leased
Space.
16.3 DEFAULT OF LESSOR. The failure of Lessor to comply with any of its
obligations under the terms of this Agreement, and continuation of such failure
to cure for more than ten (10) 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 ten (10) days is required for its cure, then
Lessor shall not be deemed to be in default if Lessor has commenced such cure
within the ten (10) day period, demonstrates to Lessee's reasonable satisfaction
that such default is curable and thereafter diligently prosecutes such cure to
completion.
16.4 TERMINATION BY DEFAULT OF LESSOR. 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. 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 Space to Lessor
and have no further obligation to Lessor hereunder.
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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 Three Million Dollars
($3,000,000.00) for combined single limit with respect to any one occurrence and
Five Million Dollars ($5,000,000.00) 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.
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 Space or Lessor's Property; (iv) the use by Lessee of
any part of the Leased Space or Lessor's Property; (v) any work undertaken by or
at the request of Lessee on or about the Leased Space; (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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18.3 INDEMNIFICATION BY LESSOR. 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) Lessor's breach of any warranty contained in this
Agreement, and (iii) any willfully negligent act or omission of Lessor, its
employees, agents, invitees or contractors, whether in, on, about or with
respect to the Leased Space or Lessor's Property; 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.
18.4 DEFENSE BY LESSOR. 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.
ARTICLE XIX
RECONSTRUCTION OF DAMAGED PREMISES
19.1 REPAIR. Except as otherwise provided in this Agreement, if
Lessor's Property, or any portion thereof, is partially or totally destroyed by
fire or other casualty so as to become partially or totally unusable, Lessor may
repair or reconstruct the damage to Lessor's Property to the extent and in the
manner required to meet the then current needs of Lessor.
19.2 RENT ABATEMENT. This Agreement will remain in full force and
effect pending repair or replacement of the damaged or destroyed premises, but
the obligation of Lessee to pay the Monthly Rent will be abated during any
period in excess of five (5) business days that due to damage to or destruction
of the Lessor's Property (other than by the fault of Lessee) the Leased Space is
not capable of being used for Lessee's purposes as set forth herein. The monthly
installments will resume when the Leased Space is again capable of being used
for such purpose, irrespective of whether Lessee has resumed its use of the
Leased Space.
19.3 ELECTION NOT TO REPAIR. Notwithstanding anything to the contrary
in Sections 19.1 and 19.2, Lessor may, at its sole and absolute discretion,
elect not to repair or rebuild Lessor's Property, or any portion thereof. Lessor
will promptly notify Lessee within forty-five (45) days of the event causing the
damage or destruction, if such option is elected. If Lessee did not in any way
cause the fire or other casualty and if either (i) Lessor has elected not to
rebuild or repair Lessor's Property or (ii) reconstruction has not commenced
within one hundred eighty (180) days after the fire or other casualty, Lessee
may, by written notice to Lessor, terminate this Agreement provided said notice
is received by Lessor on or before two hundred twenty five (225) days after the
fire or other casualty and before the reconstruction has commenced.
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
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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 Property, 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.
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 Space; provided that Lessee shall not submit any such applications
without the prior written consent of Lessor, which consent shall not be
unreasonably withheld.
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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 Space, 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 Space 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.
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 Space, 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 Space, or which would prevent reasonable access to the Leased Space
by Lessee, as herein provided.
23.6 RESTORATION ON TERMINATION. Upon the termination of the Agreement
for any reason, Lessee will restore the Leased Space 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 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.
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: South Texas Broadcasting Inc
KKHT-FM 0000 Xxxxx Xxx 0000
Xxxxxxx, Xxxxx 00000
To Lessor Sonsinger Broadcasting of Houston LP
c/o Salem Communications Corporation
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attn: Xxxxxxxx X. Block, 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 Property 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
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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
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 Property. 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 Space, 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 Houston,
Texas and shall be interpreted as a contract to be performed wholly in the State
of Texas. The law of the State of Texas 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 Houston, Texas, 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:
SONSINGER BROADCASTING COMPANY OF SOUTH TEXAS BROADCASTING INC. KKHT-FM
HOUSTON, LLP
By Sonsinger Management, Inc.
its General Partner
By: /s/ XXXX X. XXXXXXXXX By: /s/ XXXX X. XXXXXXXXX
-------------------------------- --------------------------------
Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx
Vice President Vice President
14
15
EXHIBIT A
COMMENCEMENT DATE AGREEMENT
This Commencement Date Agreement is entered into on this 1st day of
June, 0000, xxxxxxx XXXXX XXXXX BROADCASTING, INC. KKHT-FM. ("Lessee"), and
SONSINGER BROADCASTING COMPANY OF HOUSTON, LP. ( "Lessor").
WHEREAS, Lessor and Lessee entered into a lease dated June 1, 1998 (the
"Lease"), setting forth the terms of occupancy and use by Lessee of a certain
tower on Lessor's Property, as defined in the Lease; and
WHEREAS, the Lease is for a term of ten (10) years with the
"Commencement Date" of the term being defined in Section 3.1 of the Lease; and
WHEREAS, it has been determined in accordance with the provisions of
Section 3.1 of the Lease that July 1, 1998 is the Commencement Date of the term
of the Lease; and
WHEREAS, the Lease provides that the parties shall execute a
confirmation of the actual Commencement Date of the term thereof, when such date
has been determined.
NOW, THEREFORE, the parties hereto confirm that the Commencement Date
of the term of the Lease is July 1, 1998.
This Agreement is executed by the parties for the purpose of providing
a record of the Commencement Date of the term of the Lease and commencement of
rental payments and does not modify, amend or alter any of the terms or
conditions of the Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
IN WITNESS WHEREOF, the parties have executed this Commencement Date
Agreement as of the day and year first above written.
LESSOR: LESSEE:
SONSINGER BROADCASTING COMPANY SOUTH TEXAS BROADCASTING, INC. KKHT-FM
By Sonsinger Management, Inc.,
its General Partner
By: /s/ XXXX X. XXXXXXXXX By: /s/ XXXX X. XXXXXXXXX
-------------------------------- --------------------------------
Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx
Vice President Vice President
15
