TOWER LEASE AGREEMENT
This Lease Agreement is made and entered into as of the 22nd day
of August, 1997 by and between XXXXXXX BROADCASTING COMPANY OF UTAH, INC., a
Delaware corporation ("Landlord"), and XXXXXXX BROADCASTING COMPANY OF SALT LAKE
CITY, L.L.C., a Delaware limited liability company ("Tenant").
WITNESSETH:
WHEREAS, landlord is the lessee of certain real property (the
"Premises") located on land located in Utah County, Utah, more particularly
described as:
TOWNSHIP 6 SOUTH, RANGE 1 WEST, SLB&M
Section 22: Within NE 'A SW 'A SE 1/4 specifically described as
follows:
Beginning at a point which is North 997.53 feet and West 1394.48
feet from the XX xxxxx of Section 22, Township 6 South, Range I
West, SLB&M, thence North 30'00' West 250.00 feet; thence North
60'00' East 261.36 feet; thence South 30'00' East 250.00 feet;
thence South 60'00' West 261.36 feet to the point of beginning.
pursuant to the lease dated September 12, 1996 (the "Ground Lease") wherein the
State of Utah, acting by and through the School and Institutional Trust Lands
Administrator, (the "State') was the lessor; and
WHEREAS, Landlord, at its sole cost and expense (except for
payments provided for in this Lease), is constructing on the Premises a
communications transmission tower (the "Tower") substantially as described in
Exhibit 1 hereto and a transmitter building (the building with any and all
future additions thereto, hereinafter the "Transmitter Building"); and
WHEREAS, the State is the owner of the Premises and has leased the
Premises to Landlord and has the contractual right to prior approval of leases
and subleases of space on the Premises; and
WHEREAS, Tenant is the Federal Communications Commission (the
"FCC") permittee of Television Station KZAR-TV, Channel 16, Provo, Utah (the
"Station") and desires to place and operate the antenna for the Station at a
location on the Tower, said location being described in Exhibit 2 hereto (the
"Antenna Space"), to install and to maintain at Tenant's expense certain
transmission lines from the Station's transmitter equipment across or under
portions of the Premises and through or upon the Tower to the Antenna Space, and
to occupy the Transmitter Building (the "Tenant's Space") in which to locate the
Station transmitter and related equipment; and
WHEREAS, Tenant requires other space on the Premises for the
installation of Tenant's generator and related fuel storage tank, an ancillary
broadcast microwave antenna, a two-way
radio facility, power supply and ancillary equipment and a down link earth
station, with the further right to interconnect such equipment with equipment in
the Tenant's Space in the manner provided herein; and
WHEREAS, Tenant is applying for a construction permit issued by
the FCC (the "Construction Permit") to locate its antenna on the Tower and to
install its transmitter in the Transmitter Building;
NOW, THEREFORE, in consideration of Tenant's obligation to pay
rent and in consideration of the mutual rights, obligations, terms, covenants,
and provisions hereof, the parties mutually agree as follows:
ARTICLE I
LEASED PREMISES
Landlord, for and in consideration of the covenants and conditions
herein mentioned, reserved and contained, to be kept and performed by Tenant,
and the rents to be paid by Tenant hereunder, does hereby grant to Tenant, for
the rental periods described herein, and Tenant does hereby take from Landlord
for said periods, upon and subject to the covenants and conditions herein
contained, the following:
(a) Antenna Space. The Antenna Space for the installation and
operation of Tenant's Station KZAR television Channel 16 antenna all as more
particularly described in Exhibit 2 hereto; and
(b) Tenant's Space. Occupancy of the Tenant's Space within the
Transmitter Building, as reasonably designated by Lessor, for installation and
operation of Tenant's transmitter and related equipment; and
(c) Additional Areas. Occupancy of additional areas of space
outside the Transmitter Building at locations mutually acceptable to Landlord
and Tenant for (i) placement and use of Tenant's generator and generator fuel
tank (which shall comply with all applicable laws, rules and ordinances); (ii)
the installation (not on the Tower) and use of an auxiliary broadcast microwave
antenna; (iii) the installation and use of a down link earth station; (iv) the
installation and use of a two-way radio facility and (v) power supply and
ancillary equipment, with the further right to install, maintain, repair,
replace and remove wires, transmission line or conduit for all of the foregoing
over courses mutually acceptable to Landlord and Tenant; and
(d) Access. The right, in common with others, to use the roadways
constructed by Landlord to and on the Premises for ingress and egress to and
from the Transmitter Building and Tower as reasonably necessary for purposes of
Tenant's installation, removal, servicing, maintenance and repair of Tenant's
equipment therein; and
(e) Transmission Lines. The limited and non-exclusive right to
install and to maintain a waveguide transmission line having a diameter of no
more than 18 inches from the Tenant's
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Space to the Antenna Space, generally on the Tower, all for the sole purpose of
enabling Tenant to conduct its broadcasting activities; and
(f) Utility Lines. The right, in common with others, at Tenant's
expenses, to connect to power, telephone and utility lines in the Transmitter
Building; provided, however, Tenant shall also bear the costs of any increase in
the capacity of the power, telephone and utility lines necessary to accommodate
Tenant's use thereof.
(g) Sanitation Facilities. The right to have and maintain at a
location of Landlord's selection a combustible toilet and such other sanitation
facilities as may be desired by tenant or required by government authority. It
is understood by Tenant that landlord does not provide, and has no obligation to
provide, potable or other water at the Leased Premises.
All of the space, premises and rights granted under this Article I
are demised and leased on a limited and non-exclusive basis and are hereinafter
sometimes referred to as the "Leased Premises". Tenant's use of the Leased
Premises shall be limited to broadcasting activities associated with the
broadcast operations of the Station.
Landlord covenants, represents and warrants to Tenant as follows:
(i) Landlord has a valid leasehold estate with respect to the Premises pursuant
to the Ground Lease; (ii) subject to satisfaction of the conditions set forth in
Section II(c), Landlord has full power and authority to enter into and carry out
the terms of this Lease without any consents from third parties; (iii) at such
time as the Tower is made available to Tenant pursuant to Section III(A) the
Tower will be registered and in compliance with all applicable regulations of
the Federal Communications Commission and the Federal Aviation Administration;
(iv) subject to the provisions of Article XXI below, Landlord will complete
construction of the Tower as contemplated herein and make it ready for
installation of Tenant's antenna by December 31, 1997; and (v) the uses of the
Premises as provided herein are permitted by the Ground Lease.
ARTICLE II
TERM
(a) TO HAVE AND TO HOLD the Leased Premises for a term commencing
, _________, 1997 (the "Commencement Date") and expiring at midnight on December
31, 2013, unless this Lease is sooner terminated as hereinafter provided.
(b) Holding Over. If Tenant or anyone claiming under Tenant shall
remain in possession of the Leased Premises or any part thereof after the
expiration of the term of this Lease or any renewal thereof without any
agreement in writing between the landlord and Tenant with respect thereto, prior
to acceptance of rent by Landlord, the person remaining in possession shall be
deemed a tenant at sufferance, and, after acceptance of rent by Landlord, the
party remaining in possession shall be deemed a tenant from month to month,
subject to the provisions of this Lease insofar as the same may be made
applicable to a tenancy from month to month. The rental during any such period
shall equal one hundred fifty percent (150%) of the rental in effect immediately
preceding such expiration.
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(c) Condition to Lease. This Lease Agreement is conditioned upon
Landlord's timely compliance with the provisions of Section l(g)(iv) above.
ARTICLE III
RENT
(a) Rent. Upon satisfaction of the conditions set forth in
Section II(c) and completion of construction of the Tower and Transmitter
Building and. when the Tower is ready for the installation of Tenant's antenna,
Lessor shall give Tenant 30 days' notice and Tenant shall upon the expiration of
said 30 day period or upon commencement of broadcasting, whichever first occurs,
begin to pay Landlord for the Leased Premises rent in the amount of $9,500.00
per month for the period ending December 31, 2000, and $11,000.00 per month
thereafter (the "Rent") on or before the first day of each month, commencing
with a prorated payment for any portion of the month in which the Rent payments
commence. Any other payments which are payable when invoiced hereunder shall be
due within twenty (20) days after Tenant's receipt of such invoice. Effective
January 1, 2003, and on January 1, of each year thereafter, the Rent shall be
increased (but in no event decreased) by a percentage equal to the percentage
increase in the Consumer Price Index, All Urban Consumers, Salt Lake City
Metropolitan Statistical Area (or any successor or substitute index), from the
Commencement Date.
(b) Additional Rent. Tenant shall pay Landlord during the term of
this Lease, as additional rent, all utility, diesel fuel, tax, and maintenance
expenses, including maintenance of the access road, associated with the
Premises, Tower and Transmitter Building and reasonably attributable, either
directly or as a Proportional Share, to Tenant (the "Additional Rent"). As used
in this Lease, "Proportional Share" means that share of the total common
expenses incurred by all users of the Leased Premises calculated by dividing the
space within the Transmitter Building occupied by each tenant by the total space
occupied by all tenants. Tenant's interest in the Transmitter Building at any
given time shall be that fraction determined by dividing the total number of
square feet in Tenant's Space by the total number of square feet in the
Transmitter Building. Landlord shall have the right to grant additional tenants
use of the Transmitter Building, provided that such use shall not, in Landlord's
sole reasonable discretion, result in a material disturbance to Tenant's
occupancy of Tenant's Space or involve any use or shared use of Tenant's Space
by such additional tenant.
Landlord shall maintain the Transmitter Building (but not the
interior portions of the Tenant's Space or any personal property of Tenant
including, but not limited to, Tenant's air conditioning and ventilation system
and auxiliary power generator) so as to comply with existing rules and
regulations imposed by any governmental authority having jurisdiction over the
ownership or operations of the same.
Tenant may install and maintain, at its own cost, an air
conditioning and ventilation system adequate for Tenant's intended use and
serving only Tenant's Space and an auxiliary power generator.
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Tenant may install in Tenant's Space in the Transmitter Building
and maintain, at its own cost, a monitored fire alarm system and security
system. The selection of the fire alarm system and security system shall be
subject to the prior approval of Landlord, which approval shall not unreasonably
be withheld or delayed.
(c) Aperture Fee. On or before April 1, 1998, Tenant shall pay
Landlord the sum of $125,000.00 as a one time aperture fee.
(d) Security Deposit. At such time as rental payments first
become due to Landlord, Tenant shall pay Lessor the sum of $9,500.00 as a
security deposit for rental payments and any other amounts due Landlord.
ARTICLE IV
CONSTRUCTION, INSTALLATION AND USE OF LEASED PREMISES
(a) Tenant's Construction Permit. Tenant represents that it has
obtained from the FCC its Construction Permit and that such approval has become
final.
(b) Landlord's Regulatory Applications. Landlord represents that
it has approvals from the FCC, the Federal Aviation Administration ("FAA") and
is seeking approval from all other appropriate governmental authorities for
permits necessary for the construction of the Tower and the Transmitter
Building, both of which shall be the sole and exclusive property of Landlord.
(c) Installation of Tenant's Equipment. The antenna and related
equipment to be installed on the Tower are as described in Exhibit 2. Tenant, at
Tenant's expense, shall install Tenant's equipment in the Antenna Space,
including the necessary antennas and transmission lines from the Tenant's Space
to the Antenna Space, all according to the description of such installations
contained in the Exhibits hereto. Tenant, at Tenant's expense, also shall
install its generator, broadcast microwave antenna, two-way radio facility,
power supply and ancillary equipment and earth station, all in accordance with
the descriptions of such installment contained in the Exhibits hereto. In
addition to the requirements of Article IV, all work on the Tower by or on
behalf of Tenant shall be performed in accordance with plans and specifications
and by contractors and riggers all approved by Landlord, which approval shall
not be unreasonably withheld or delayed, and shall be subject to Landlord's
requirements as to the circumstances, timing and sequence of such work. Without
limitation of the foregoing, all equipment installed by Tenant on the Tower,
including the mounting hardware used to attach such equipment to the Tower,
shall be designed to withstand a steady state wind load of 50 PSF (equivalent to
the force produced by a steady state wind speed of 112 MPH on flat surfaces)
with such loading calculated under the assumptions of wind direction leading to
the greatest imposed wind loading and, further, of equipment and its associated
hardware being coated with ice having a radial thickness of two inches. Prior to
the commencement of any such work, Tenant shall cause its contractor to obtain
insurance otherwise meeting the requirements of this Article but affording
minimum protection of not less than $2,500,000 in respect to personal injury or
death to any one person, of not less than $10,000,000 in respect to personal
injury or death to any two
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or more persons, and of not less than $5,000,000 for property damage.
Certificates of such insurance shall be provided to Landlord prior to the
commencement of any such work. The installation of Tenant's equipment shall be
the responsibility of and at the expense of Tenant under the supervision and
direction of Landlord, provided that, without limitation, Landlord may require
changes in the installation method and process to (1) ensure the structural
integrity of the Tower, and (2) avoid interruption, to the extent possible, of
the broadcast activities of other users of the Tower. All installation shall be
consistent with good engineering practices in compliance with all federal, state
and other governmental requirements, and with the use of the Leased Premises by
Landlord and other existing tenants. Upon completion of such installations,
Tenant shall provide Landlord with a written certificate of Tenant's engineer
certifying compliance with the foregoing requirements. All installation costs
incurred by Landlord hereunder shall be chargeable to Tenant, at reasonably
competitive rates in the area, including any additional costs resulting from
interruption of transmissions by other tenants.
In the event Landlord notifies Tenant that Tenant's construction
or installation is not in material compliance with any requirement of this
Lease, Tenant shall immediately cease such construction or installation until
such time as the issue is resolved and Landlord agrees that construction or
installation may continue.
EXCEPT FOR SPECIFIC WARRANTIES SET FORTH HEREIN, NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, IS MADE BY LANDLORD WITH RESPECT TO THE
SUITABILITY OF THE TOWER AND RELATED FACILITIES FOR TENANT'S INTENDED USE
THEREOF.
(d) Prior Approval of Landlord. All construction and/or
installation done by or on behalf of Tenant and all maintenance, repair, removal
or relocation (which maintenance repair, removal or relocation shall be in
conformity with the equipment specifications set forth herein) of any of
Tenant's equipment on the Tower shall require the prior written approval of
Landlord, which approval shall not be withheld unreasonably. Request for such
approval shall be in writing and shall be furnished to Landlord at least 10 days
prior to the proposed work, provided that repairs of an emergency nature may be
requested and approved orally. Such requests shall state with reasonable
precision the type of equipment to be worked on, the manner and time of the work
to be performed and the precautions to be taken to avoid interference with
equipment or transmissions of others. Any such work must also be consistent with
the obligations of Tenant hereunder. All work on the Tower shall be performed by
qualified engineers, contractors, or riggers satisfactory to Landlord in its
sole discretion.
All construction and/or installation done by or on behalf of
Tenant and all maintenance, repair, removal or relocation involving an
expenditure of Tenant of more than $2,500 (which maintenance, repair, removal or
relocation shall be in conformity with the equipment specifications set forth
herein) of any of Tenant's equipment on the Leased Premises other than the
Tower, of the type which requires notice to or the approval of the FCC, shall
require the prior written approval of Landlord, which approval shall not be
withheld unreasonably. Request for such approval shall be in writing and shall
be furnished to Landlord at least 10 days prior to the proposed work, provided
that repairs of an emergency nature may be requested and approved orally. Such
requests shall state with reasonable precision the type of equipment to
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be worked on, the manner and time of the work to be performed and the
precautions to be taken to avoid interference with equipment or transmissions of
others. Any such work must also be consistent with the obligations of Tenant
hereunder. All work shall be performed by qualified engineers or contractors
satisfactory to Landlord in its sole discretion.
(e) Access. Subject to paragraph (d) above, Tenant shall have a
right of access to the Tower at all reasonable times for inspection, repair,
maintenance and replacement of its equipment; provided, however, that (except as
may be provided elsewhere in this Lease) such access and activities shall not
interfere with the use of the Tower by Landlord or any tenant or user, or
interrupt or otherwise adversely affect the continued transmitting operations of
Landlord or any other tenant or user. Landlord shall have a right of access, at
all reasonable times, for examination, inspection, emergency repair or
replacement of any of Tenant's equipment located in the Transmitter Building;
provided, however, that (except as may be provided elsewhere in this Lease) such
access and activity by Landlord shall not interfere with the use of the Tower by
Tenant or interrupt or otherwise adversely affect the continued broadcast
operation of Tenant. At the outset of the term of the Lease, Tenant shall
provide to Landlord duplicates of any keys necessary to permit access to
Tenant's equipment at said location; provided that (i) Landlord will advise
Tenant as to who receives any such duplicate keys, and (ii) Tenant shall not be
responsible for, any damages suffered by Landlord, its employees or agents or
other tenants entering or using Tenant's Space when Tenant is not present,
except Tenant shall be responsible if it fails to respond and appear at the
Leased Premises upon 24 hours advance notice or if it authorizes any such entry
by Landlord, its employees or agents or other tenants.
(f) Condition of Tenant's Equipment. The equipment installed by
Tenant hereunder shall be and remain the property of Tenant, subject to the
rights of Landlord described in Articles III, IX, and XIII hereof. Except as
otherwise provided in this Agreement, Tenant shall be fully responsible for the
replacement, maintenance, modification, rearrangement and removal of its
equipment installed in or upon the Leased Premises, and Landlord shall have no
responsibility therefor. Tenant shall keep all of its equipment in safe
condition at all times and in compliance with all applicable statutes, rules,
regulations, orders, directives of any governmental body and other standards
pertaining thereto and pertaining to the Leased Premises. The manner of use and
the equipment and devices to be used for any installation, relocation and
removal of Tenant's equipment must be consistent with good engineering practices
and with the quiet and uninterrupted use and occupancy of the Leased Premises by
Landlord and other tenants. Tenant shall at all times keep Landlord's property
free and clear of any and all mechanic's liens or similar claims that might
arise by virtue of Tenant's maintenance, modification, removal or rearrangement
of its equipment installed on the Leased Premises and Tenant shall defend,
indemnify and save harmless the Landlord of, from and against any such claims,
or any costs or expenses, including reasonable attorneys' fees, Landlord may
incur in the defense or removal of any such claims. Landlord reserves the right,
consistent with good engineering practices, to approve or disapprove the manner
of use and the equipment and devices to be used for any installation,
replacement, relocation or removal of any equipment on the Tower and/or on the
Premises. Upon completion of any installation, relocation or removal of
equipment by Tenant which is subject to paragraph (e) above, Tenant shall
promptly notify Landlord in writing. Thereupon, Landlord, at its option, may
inspect the installation, removal or relocation of equipment to assure that it
has been performed as required by this paragraph (f)
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and if Landlord shall determine that the work has not been so performed, Tenant
shall remove and correct such work to the extent and in the manner required by
Landlord. Upon its failure to do so within five days of written notification
from Landlord, Landlord may remove and correct such work, and Tenant shall, when
invoiced, reimburse Landlord for all reasonable costs and expenses thereof.
(g) Replacement Equipment. Tenant, subject to the other
provisions of this Lease, may replace its Channel 16 antenna and/or transmission
line within the Antenna Space as long as the replacement Channel 16 antenna and
the replacement transmission line, cumulatively, do not have a greater wind and
weight load than do the original antenna and transmission line, unless prior
approval has been received from Landlord.
(h) Permitted Uses, Nuisances. Tenant shall use the Leased
Premises exclusively for its Station KZAR television Channel 16 broadcast
activities and shall not engage in the transmission of any other services
therefrom. Tenant shall not maintain, commit or permit any nuisance or unsafe
condition. If Tenant, upon five days' notice from Landlord, shall fail to remedy
any such nuisance or unsafe condition, Landlord may do the same, and Tenant
shall, when invoiced, reimburse Landlord for the costs and expenses thereof.
(i) Necessary Permits. Tenant, at its own cost and expense, shall
obtain and maintain in effect any and all permits, licenses and approvals that
may be required with respect to Tenant's equipment or activities by each
governmental authority having jurisdiction.
(j) Purchase Money Equipment Liens. Landlord acknowledges that
Tenant may finance the purchase of Tenant's equipment installed on the Tower and
Landlord agrees to subordinate any liens it may have to Tenant's equipment
lenders, provided that such lenders agree to indemnify and hold Landlord
harmless from and against any loss, liability, cost or expense resulting from
removal of Tenant's equipment from the Tower or other exercise of such lenders'
rights and further agree that any removal of Tenant's equipment from the Tower
shall be performed by qualified personnel in accordance with sound engineering
practices.
ARTICLE V
TOWER MAINTENANCE AND REPAIR
During the term of this Lease and in accordance with and subject
to the provisions of Article XIV as applicable, Landlord will (1) maintain the
Tower so as to comply with existing rules and regulations imposed by any
governmental authority having jurisdiction over its operation, and make any
repairs and modifications reasonably necessary to maintain the same in good
condition and in compliance with good broadcast engineering practices, and (2)
maintain the Transmitter Building (but not the interior portions of Tenant's
Space) so as to comply with existing rules and regulations imposed by any
governmental authority having jurisdiction over the ownership or operation of
the same and make any repairs and modifications reasonably necessary to maintain
the same in good condition and in compliance with good broadcast engineering
practice. Tenant shall reimburse Landlord, when invoiced by Landlord, for
Tenant's Proportional Share of maintaining the Premises (including the access
road thereto),
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Tower and Transmitter Building. Further, Tenant shall reimburse Landlord, when
invoiced by Landlord, for the cost of any repairs or modifications occasioned by
(i) the negligence of Tenant, its agents, servants, employees, contractors or
invitees; (ii) a defect or malfunction in, or problem with, Tenant's system,
equipment or any attachments thereto; (iii) any safety hazard or violation of
any applicable statute, rule, regulation, order, directive or standard relating
to, in or caused by Tenant's system, equipment or any attachment thereto; (iv)
changes or improvements to the Tower or the Leased Premises requested in writing
by Tenant, to the extent not paid directly by Tenant; or (v) any violation or
breach of any provision of this Lease by Tenant or anyone acting under Tenant.
In the performance of its obligation to maintain and repair the
Tower, and to allow other tenants to install, remove, relocate, maintain and
repair their equipment, it may be necessary from time to time for Landlord to
request that Tenant temporarily cease transmission and broadcasting activities,
to turn off electrical power and/or to make other adjustments to its equipment
and operations. Landlord agrees, except in the case of emergencies, to give
Tenant 24 hours' notice of such disruptions and to schedule and complete such
work so far as reasonably possible between 1:00 a.m. to 5:00 a.m., and Landlord
will not cause any interruption of Tenant's transmission and broadcasting
activities under this provision unless such interruption to Tenant's operations
is required by and consistent with good engineering practices. Tenant agrees to
cooperate with Landlord and to comply with and honor Landlord's reasonable
requests for temporary cessation of transmission and broadcasting activities, to
turn off electrical power and/or to make other adjustments to its equipment or
operation, as necessary, to allow for orderly performance and carrying out of
such work. Tenant acknowledges that it is aware that the safety of workers is of
paramount concern in deciding the time when Tenant must temporarily cease
operations. Tenant agrees to abide by any work rules or procedures for personnel
access to the Tower which may be required by Landlord for compliance with the
policies and rules of the FCC. Landlord agrees to abide by any work rules or
procedures for personnel access to the Tower which may be required by Tenant for
compliance with the policies and rules of the FCC. In the event Tenant fails to
cooperate with Landlord and refuses to temporarily cease operation, Landlord
shall have the right to turn off the electric power to Tenant's equipment as
required to perform and carry out such work.
Landlord shall use its best efforts to secure the cooperation of
all tenants on the Tower to comply with and honor Landlord's reasonable requests
for temporary cessation of transmission and broadcasting activities, to turn off
electrical power and/or to make other adjustments to their equipment or
operations, as necessary, to allow for orderly performance and carrying out of
the installation, removal, maintenance and repair of Tenant's equipment and to
abide by any work rules or procedures for personnel access to the Tower which
may be required for compliance with the policies and rules of the FCC.
ARTICLE VI
INDEMNITY AND INSURANCE
(a) Indemnification by Tenant. Tenant hereby assumes all risk of
and responsibility for, and agrees to defend, indemnify and hold harmless
Landlord, its officers, directors,
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members, servants, employees and agents from and against any and all claims,
demands, suits and proceedings made or commenced by any party against any of the
foregoing, for loss of life, personal injury, loss or damage to property or any
and all other damages or loss caused by (i) the use of the Tower, the
Transmitter Building or the Premises by Tenant, its officers, directors,
members, agents, servants, employees or invitees, or (ii) the performance by or
carrying out by Tenant or any subtenant of any of the terms and conditions
hereof, or (iii) the failure of Tenant to perform any term, covenant or
condition required to be performed by Tenant hereunder, or (iv) any damage or
injury that may occur as a result of any unsafe condition, or of any negligent
installation or maintenance of Tenant's equipment to the extent such condition
or installation or maintenance is the responsibility of Tenant hereunder, or (v)
failure by Tenant or any subtenant to comply with any applicable statute, rule,
regulation, order or other standard pertaining to the use or installation of
Tenant's equipment or (vi) the overlap, if any, of aperture of Tenant's
equipment with that of any other tenant on the tower, and any radiation levels
which are violative, or in the future may be violative, of the applicable rules,
regulations or policies of the FCC or other regulatory agency caused by Tenant's
equipment or the location thereof on the Tower; and in all events from and
against any and all judgments, recoveries, settlements, costs, expenses and
losses that may be incurred by any indemnified party as a result of any such
claim, demand, suit or proceeding, including, but not limited to, attorneys'
fees, court costs and expenses incurred in responding to defending any such
claim, demand, suit or proceeding. Tenant hereby waives, to the furthest extent
provided by law, any immunity or limited liability to which it may be entitled
under applicable workers' compensation laws with respect to loss or injury to
its own employees.
If any suit or proceeding shall be instituted against Landlord for
which indemnification would be required under the provisions of this Article,
Landlord shall, with reasonable promptness, give written notice of same to
Tenant. Subject always to Tenant's demonstration to Landlord's reasonable
satisfaction of Tenant's continuing financial capacity to respond to any
resulting indemnity obligations hereunder, Tenant shall have the right (but not
the obligation) to assume the defense of the case at Tenant's sole and separate
expense; provided, however, that, at Landlord's expense, Landlord shall be
entitled to designate counsel of its choosing to associate with Tenant's counsel
in the defense of said proceeding. Landlord shall cooperate fully in all
respects with the Tenant in any defense, compromise or settlement, including,
without limitation, providing Tenant with all pertinent information under the
control of Landlord. If after such notice Tenant does not assume control of such
defense, Landlord shall conduct such defense and Tenant shall be kept informed
and be consulted by Landlord with respect to the litigation but shall be bound
by the results obtained by Landlord insofar as the claim against Landlord is
concerned. Landlord shall provide Tenant with timely notice of Landlord's
intention to settle any claim, and Tenant shall have the right to approve or
withhold approval of any such settlement. If Landlord fails to obtain Tenant's
prior written consent to any such settlement, Landlord shall be deemed to have
released Tenant from its obligation to indemnify Landlord with respect to such
claim.
(b) Indemnification by Landlord. Except as provided in Articles
VII and XXII of this Lease, Landlord hereby assumes all risk of and
responsibility for and agrees to indemnify and hold harmless Tenant, its
officers, directors, members, employees and agents from and against any and all
losses, and all claims, demands, suits and proceedings made or commenced by any
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third party against any of the foregoing, for loss of life, personal injury,
loss or damage to property or other damage caused by (i) the negligent or
intentional act(s) or omission(s) of Landlord or its agents, servants or
employees arising in the course of the performance by this Lease; (ii) the
failure of Landlord to perform any material term, covenant or condition required
to be performed by Landlord hereunder or (ii) the breach of any warranty by
Landlord herein, and in such events from and against any and all judgment,
recoveries, settlements, reasonable costs and expenses and losses that may be
incurred by any indemnified party as a result of any such claim, demand, suit or
proceeding, including but not limited to reasonable attorneys' fees, court costs
and expenses incurred in responding to or defending any such claim, demand, suit
or proceeding. Notwithstanding the foregoing, Landlord shall not be liable for
consequential damages, including without limit lost revenues from Tenant's
inability to transmit or broadcast.
If any suit or proceeding shall be instituted against Tenant for
which indemnification would be required under the provisions of this Section
VI(b), Tenant shall, with reasonable promptness, give written notice of same to
Landlord. Landlord shall have the right (but not the obligation) to assume the
defense of the case at Landlord's sole and separate expense; provided, however,
that, at Tenant's expense, Tenant shall be entitled to designate counsel of its
choosing to associate with Landlord's counsel in the defense of said proceeding.
Tenant shall cooperate fully in all respects with the Landlord in any defense,
compromise or settlement, including, without limitation, providing Landlord with
all pertinent information under the control of Tenant. If after such notice
Landlord does not assume control of such defense, Tenant shall conduct such
defense and Landlord shall be kept informed and be consulted by Tenant with
respect to the litigation but shall be bound by the results obtained by Tenant
insofar as the claim against Landlord is concerned. Tenant shall provide
Landlord with timely notice of Tenant's intention to settle any claim, and
Landlord shall have the right to approve or withhold approval of any such
proposed settlement. If Tenant fails to obtain landlord's prior written consent
to any such settlement, Tenant shall be deemed to have released Landlord from
its obligation to indemnify Tenant with respect to such claim.
(c) Workers' Compensation Insurance. Before commencing any
installation, maintenance work or removal on the Premises, Tenant shall procure
and thereafter maintain at Tenant's expense, worker compensation insurance
coverage with a responsible insurance company, qualified to do business in Utah,
reasonably satisfactory to Landlord. Said insurance shall provide for the
payment of compensation in accordance with the laws of the State of Utah for all
workers hired or employees employed by Tenant or its contractors or
subcontractors, and shall further insure Landlord against any and all liability
for personal injury or death for such workers and employees. Prior to the
commencement of any such installation, maintenance, work or removal, Tenant
shall provide Landlord with a certificate of insurance, which certificate shall
contain a provision for 30 days prior written notice to Landlord of any
cancellation or change.
(d) Tenant's Liability Insurance. Tenant shall procure and
maintain, at Tenant's expense, throughout the term, a policy or policies of
comprehensive general liability insurance, with contract liability coverage,
with respect to all of Tenant's operations and activities on the Premises,
including but not limited to operations of contractors and the operation of
vehicles and equipment and negligence of Tenant, and naming Landlord and Tenant
as co-insured, with
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premium thereon being fully paid in advance, issued by and binding upon a
responsible insurance company qualified to do business in the State of Utah and
reasonably satisfactory to Landlord. Such insurance shall afford minimum
protection of not less than $2,500,000 with respect to personal injury or death
to any one person, of not less than $10,000,000 for injury or death for two or
more persons, and not less than $5,000,000 for property damage. Each of the
foregoing limitations shall be for each occurrence and shall not be an aggregate
limit under the policy. Tenant shall obtain such additional insurance and/or
increase the foregoing limits as Landlord may, from time to time, reasonably
require by written notice. Tenant shall also cause any contractors or
subcontractors performing any work on the Tenant's equipment and/or making
repairs or changes thereto, or otherwise performing work on behalf of the
Tenant, to procure comprehensive public liability insurance complying with this
paragraph and Article IV(e), if applicable. Prior to any use or occupancy of the
Leased Premises including but not limited to performance of any work on the
Leased Premises and thereafter prior to the expiration of any applicable policy
or the performance of any work, Tenant shall give Landlord a certificate of
insurance for each insurance policy required in this subsection and said
insurance certificate shall contain a provision for 30 days prior written notice
to Landlord of any cancellation or change.
(e) Landlord's Rights to Procure Liability Insurance. If Tenant
shall fail to procure or maintain the insurance policies required in this
Article or shall fail to cause its contractors or subcontractors to procure and
maintain such insurance policies, Landlord may, but it shall not be obligated
to, procure and maintain such insurance policies, and Landlord may, but it shall
not be obligated to, procure and maintain such policies at Tenant's expense. Any
amounts paid by Landlord for such insurance shall be paid by Tenant to Landlord
when invoiced.
(f) Limitation. Nothing in this Article shall be deemed to
impair, decrease, modify or otherwise affect the obligations of any party under
any other provision of this Lease Agreement.
ARTICLE VII
RISK OF LOSS, LOSS OF USE
Except as otherwise provided in this Agreement, Tenant shall have
the full risk of loss from any and all causes for all of its equipment located
or installed in, on or around the Leased Premises. Except as otherwise provided
in this Agreement or in the case of Landlord's gross negligence or intentional
misconduct, Landlord shall have no responsibility and shall not be liable for
damage or destruction thereto, or for losses resulting from any such damage or
destruction.
Except as otherwise provided in this Agreement or in the case of
Landlord's gross negligence or intentional misconduct, Landlord shall not be
liable to Tenant or anyone claiming under or through Tenant for any loss or
damage caused by the acts or omissions of any other tenants of the Premises or
the malfunctioning or interruption of any service, utility, facility or
installation supplied by Landlord or any other party.
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IN NO EVENT SHALL LANDLORD BE LIABLE FOR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST REVENUES RESULTING FROM TENANT'S INABILITY TO
TRANSMIT OR BROADCAST, UNDER ANY CIRCUMSTANCES, AND TENANT FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS HEREBY EXPRESSLY WAIVES ALL SUCH CLAIMS OF CONSEQUENTIAL
DAMAGES WITH RESPECT TO THIS LEASE, THE LEASED PREMISES OR ANY PART THEREOF, OR
TENANTS OPERATIONS HEREUNDER, AND HEREBY EXPRESSLY RELEASES, RELIEVES AND
DISCHARGES LANDLORD OF AND FROM ANY SUCH CLAIMS.
Landlord shall procure replacement cost fire and extended coverage
insurance with respect to the Transmitter Building. Such policy shall provide
for such deductibles, endorsements or other features as a qualified insurance
advisor (which may be Landlord's regular insurance advisor) selected by Landlord
shall recommend. Landlord shall invoice each tenant, including Tenant hereunder,
its proportionate share of such insurance in accordance with the proportions
established in Article III. Landlord shall be designated as sole loss payee and
insurance trustee in connection with any such insurance policy, and Landlord
shall have the right to expend all or any portion of such proceeds in the
repair, reconstruction or replacement of the Transmitter Building in accordance
with Article VIII(B) hereof.
ARTICLE VIII
DESTRUCTION OR DAMAGE TO LEASED PREMISES
(a) Damage to Premises. If the Tower or the Transmitter Building
shall, with or without fault of the Landlord, by any cause be totally or
partially destroyed or damaged so as to cause total termination of broadcasting,
this Lease shall remain in force and effect, except that Tenant's obligation to
pay rent shall cease at the time of such termination of broadcasting and shall
not resume again until such time as Tenant is notified by Landlord that Tenant
may resume Tenant's broadcasting activities. Landlord shall repair, reconstruct
or replace the destruction or damage to the extent necessary to allow
broadcasting as soon as reasonably possible. Subject to Landlord's prior
approval, such approval not to be unreasonably withheld or delayed, Tenant shall
have the right to install temporary transmission facilities prior to such time.
Within 30 days after any damage to or destruction of the Tower
and/or Transmitter Building, Landlord shall notify Tenant whether it intends to
reconstruct, repair or replace the Tower and/or Transmitter Building. If
Landlord elects not to reconstruct, repair or replace the Tower and/or
Transmitter Building, this Lease shall terminate upon the giving of such notice
without further liability to either party. If landlord elects to reconstruct,
repair or replace the Tower and/or Transmitter Building, Landlord shall
reconstruct, repair or replace the Tower within 90 days after notice to Tenant
of such election putting the Tower and Transmitter Building in such condition as
will comply with all of the terms and conditions of this Lease, provided that in
no event shall Landlord be responsible for any delay which may result from
governmental regulations, inability to obtain labor or materials or any other
cause beyond Landlord's reasonable control.
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(b) Insurance Proceeds. The proceeds of any insurance which may
be collected by Landlord on account of any such damage or destruction shall be
the sole property of the Landlord, except for recovery for property of Tenant,
in which case, the proceeds shall be the sole property of Tenant.
ARTICLE IX
DEFAULT
(a) Lien or Encumbrance. It shall be the responsibility and
obligation of Tenant to pay all taxes imposed upon, or assessed with respect to,
Tenant's equipment including its antenna and transmission lines on the Tower and
its interest in the Transmitter Building. Tenant shall not allow any lien or
encumbrance to be placed against Landlord property or the Transmitter Building
for failure to pay such tax or for failure to pay any other debt finally
resolved in judicial proceedings to be due, whether or not such person be a
taxing authority or other creditor. Tenant, at its expense, promptly shall take
all action necessary to obtain the release of any lien or encumbrance in such
circumstances. Any such claim or taxes may be contested in good faith if and so
long as Tenant shall post a bond against such tax lien or claim in form and from
a surety acceptable to Landlord and enforcement of such claim or taxes or loss
or forfeiture of Tenant to comply with this Article IX(a) may be declared a
default under this Lease by Landlord. Upon the occurrence and continuation of a
violation by Tenant under the provision of this Article IX(a), Landlord, in its
sole and absolute discretion, after giving not less than seven days written
notice to Tenant, shall have the right to pay any such tax, lien or encumbrance
on Landlord's property or upon the Transmitter Building, and any amounts so paid
by Landlord together with any reasonable expenses, including attorneys' fees,
incurred by Landlord in connection therewith shall be reimbursed by Tenant on
demand.
(b) Default Reentry. If Tenants fails to pay any rental or other
payment due hereunder when due within seven days after the date that notice of
such payment default is sent to Tenant, or Tenant fails to perform any of the
other terms, conditions or covenants of this Lease to be observed or performed
by Tenant for more than 30 days after notice of such other default shall be
received or delivery refused by Tenant, or if Tenant suffers this Lease to be
taken under any writ of execution or otherwise, then Landlord, besides other
rights or remedies it may have, shall have the immediate right (i) to terminate
this Lease or reenter and attempt to relet without terminating this I-ease and
(ii) in either such event, to remove all persons and property from the Leased
Premises and such property may be removed and stored in a public warehouse or
elsewhere at the cost of the Tenant, all without service of notice or resort to
legal process and without being deemed guilty of trespass, or becoming liable
for any loss or damage which may be occasioned thereby.
(c) Application of Rent Deficiency. If Landlord, without
terminating this Lease, either (i) elects to reenter and attempts to relet, or
(ii) takes possession pursuant to legal proceedings, or (iii) takes possession
pursuant to any notice provided by law, then it may, from time to time make such
alterations and repairs as may be necessary in order to relet the Leased
Premises or any part thereof for such term or terms (which may be for a lesser
or greater term than the term of this Lease) and at such rental or rentals and
upon such other terms and
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conditions as Landlord in its sole discretion may deem advisable. Upon each such
reletting, all rentals received by Landlord for such reletting shall be applied,
first, to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to the payment of any costs and expenses of
recovering the Leased Premises and reletting the same, including brokerage fees
and attorneys' fees; third, to the payment of rent due and unpaid hereunder, and
the residue, if any, shall be held by Landlord and applied to payment of future
rent as the same may become due and payable hereunder. If such rentals received
from such reletting during any month are less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly when invoiced. No such
reentry or taking possession of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice of
such intention be given to Tenant or unless the termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. Should Landlord at any time terminate this Lease for
any breach, in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including the cost of
recovering the Leased Premises, reasonable attorneys' fees and the excess, if
any, at the time of such termination of the amount of rent and charges
equivalent to rent reserved in this Lease for the remainder of the stated term
over the then reasonable rental value of the Leased Premises for the remainder
of the stated term, all of which amounts shall be immediately due and payable
from Tenant to Landlord.
(d) Expense Reimbursement. In addition to any other remedies
Landlord may have at law or in equity and/or under this I-ease, in the event an
action for damages, specific performance or other relief shall be instituted by
either party, in or out of bankruptcy, and Landlord is the prevailing party in
such action, in whole or in part, Landlord shall be entitled to and Tenant shall
pay upon demand all Landlord's reasonable costs, charges and expenses, including
but not limited to fees of counsel, agents and others retained by Landlord,
incurred by Landlord in connection with any such actions.
In addition to any other remedies Tenant may have at law or in
equity and/or under this Lease, in the event of an action for damages, specific
performance or other relief shall be instituted by either party, in or out of
bankruptcy, and Tenant is the prevailing party in such action, in whole or in
part, Tenant shall be entitled to and Landlord shall pay upon demand all
Tenant's reasonable costs, charges and expenses, including but not limited to
fees of counsel, agents and others retained by Tenant in connection with any
such actions.
(e) Bankruptcy, Insolvency. Subject to the provisions of all
applicable law, if Tenant shall become bankrupt, file any debtor proceedings or
take or have taken against Tenant in any court pursuant to any statute either of
the United States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, or if Tenant makes an assignment for the benefit
of creditors, or petitions for or enters into an arrangement, then and in that
event, this Lease shall at the option of Landlord be cancelled and terminated
and any party claiming on behalf of Tenant shall not have any rights whatsoever
under this Lease. In the event this Lease has been assigned to a
15
successor Tenant in accordance with Article XV hereof, the term "Tenant" in this
section (e) shall include only the Tenant under the most recent of such
assignments.
(f) No Waiver. No waiver of any covenant or condition or the
breach of any covenant or condition of this Lease shall be taken to constitute a
waiver of any subsequent breach of such covenant, nor shall the acceptance of
rent by Landlord at any time when Tenant is in default under any covenant or
condition hereof, be construed as a waiver of such default or of Landlord's
right to terminate this Lease on account of such default.
(g) Cumulative Remedies. The rights and remedies given to
Landlord by this Lease shall be deemed to be cumulative and no one of such
rights and remedies shall be exclusive at law or in equity of the rights and
remedies which Landlord might otherwise have by virtue of a default under this
Lease, and the exercise of one such right or remedy by Landlord shall not impair
Landlord's standing to exercise any other right or remedy.
(h) Landlord's Lien. Tenant hereby grants to Landlord, and
Landlord shall have, a landlord's lien on Tenant's equipment (or in the case of
equipment leased by Tenant, on Tenant's interest in the equipment) to secure
payment of all amounts due hereunder. Unless Landlord waives its lien in
writing, Landlord shall be entitled to possession, foreclosure, sale and all
other remedies provided by law in connection with such lien. However, in
furtherance of such rights or following waiver of those rights, Landlord may
require Tenant to remove its equipment within 30 days after termination of this
Lease. Equipment not so removed shall be deemed abandoned and shall become the
property of Landlord.
ARTICLE X
RIGHT OF QUIET ENJOYMENT
Except as Tenant encounters interference as described at Article
XIII hereof, over which Landlord has no immediate control, Landlord covenants
Tenant shall be placed in possession of the Leased Premises at the commencement
of the term of this Lease, and that during such term, and any renewal thereof,
Tenant paying the herein stipulated rental and performing all of the terms and
provisions of this Lease Agreement shall peaceably hold and enjoy the Premises
without hindrance or interruption by Landlord, except that Landlord shall have
the right to enter upon the Leased Premises at all reasonable times for the
purpose of inspecting same or showing for sale or reletting or effecting new
construction or installations, repairs and replacements.
ARTICLE XI
CONDEMNATION AND DISMANTLING
(a) Condemnation. If the Leased Premises, or any part or portion
thereof, are condemned, or taken, or ordered dismantled, by any governmental
authority, agency or entity having the power of eminent domain or condemnation,
or other power to order dismantling, so as to make unusable the transmission
facilities used by Tenant, and if, in the case of a taking of less than all of
the Landlord's Premises, within 30 days after possession is taken by such
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condemning authority, Landlord does not elect to restore the remaining portions
of the Leased Premises so as to permit Tenant's transmission facilities to be
returned to usefulness within one year, then this Lease shall terminate from the
time possession is taken by the condemning authority, or dismantling is begun,
as the case may be, and Tenant shall have no obligation for the payment of rent
hereunder for any period after Tenant's transmission facilities become unusable,
except that any rent which has accrued during any period prior thereto which is
not yet fully paid shall become immediately due and payable in full.
(b) Condemnation Award. With respect to the condemnation of all
or any portion of the Leased Premises, Tenant shall not be entitled, and hereby
waives any right, to share or participate in any condemnation award received by
Landlord or any holder or holders of mortgages, deeds of trust, fee simple
interests or other property interests in the Leased Premises. Unless Landlord
shall elect to restore the Leased Premises as provided in paragraph (a) hereof,
any condemnation award received by Tenant with respect to its interest in the
Transmitter Building shall belong to Tenant. If Landlord shall elect to so
restore, then such award shall be made available to Landlord to pay for the
costs of such restoration. If Landlord concludes, in Landlord's sole judgment
and discretion, that the sum of all condemnation awards turned over to Landlord
as provided above will be insufficient to complete such restoration, Landlord
shall assess each tenant its Proportionate Share (determined in accordance with
Article III) of the shortfall. Tenant shall pay such amounts to Landlord when
and as invoiced. Landlord shall have the right, but not the obligation, to defer
performance of any restoration work pending receipt of payment of such
assessment by tenants.
(c) Modification of Lease Premises. Should any governmental
authority to order or direct Landlord to make any alteration of the Leased
Premises, any delay, disruption or hindrance caused to Tenant, its broadcasting,
transmission or business, occasioned thereby, shall not affect or impair
Tenant's obligation to pay Rent hereunder. Such required alterations shall be
made by Landlord as promptly as reasonably possible, provided that the costs of
any such alterations to the Transmitter Building shall be reimbursed by Tenant
for its Proportionate Share (determined in accordance with Article III), when
and as invoiced.
ARTICLE XII
REMOVAL OF EQUIPMENT
At any time during the term of this Lease, and upon expiration or
termination without default thereof, Tenant, if not in default hereunder, shall
have and is hereby granted the right to dismantle, disconnect and remove, at
Tenant's sole expense and in accordance with Article IV(e), any and all
equipment owned by Tenant which may be installed in or connected to the Tower,
the Transmitter Building, or the Premises; but such right shall not apply to
Tenant's proportionate interest in the Transmitter Building (the Tenant's Space)
which shall revert to Landlord on the expiration or earlier termination of this
Lease. If Tenant shall not have made written request of Landlord for the removal
of Tenant's equipment within 30 days from and after said expiration or
termination, such equipment and property shall be considered to be abandoned by
Tenant and become the property of Landlord. All expenses incurred by Landlord in
effecting such removal shall be paid by Tenant when invoiced.
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ARTICLE XIII
INTERFERENCE
(a) Interference by Tenant. Tenant understands that Landlord
intends to grant to other tenants facilities and/or rights which are the same
as, or similar to, those granted herein to Tenant. Tenant will endeavor in good
faith to conduct its activities in accordance with sound electronic and
engineering practice and will cooperate with other tenants and potential tenants
so as to anticipate and prevent Interference. If any engineering statement is
presented to or by Landlord confirming that Tenant's broadcasting, transmitting
or other activities in or on any portion of the Leased Premises are causing
Interference to another tenant or Landlord, Tenant shall promptly and at its
sole expense correct the condition causing such Interference.
(b) Interference to Tenant. Similarly, upon determination that
any other tenant is causing Interference with Tenant's broadcasting,
transmitting or activities in or on any portion of the Leased Premises, Landlord
will use its best efforts to cause such other tenant to promptly correct the
condition causing such Interference.
(c) Interference Defined. Except with regard to "Signal
Degradation" to Interference Protected Third Parties, as used herein and
throughout the Lease, "Interference" with a transmitting activity shall mean a
condition existing which constitutes interference within the meaning of the
provisions of the applicable rules and regulations of the FCC as determined
and/or measured by the standards of ANSI/EPA/TEA. Tenant acknowledges that the
determination of what constitutes Interference and the appropriate actions to be
taken to correct such Interference shall be at the sole discretion of Landlord.
ARTICLE XIV
REPAIRS
(a) Action by Landlord. If circumstances occur, or threaten to
occur, from which Landlord may reasonably conclude that damage is likely to
occur to the property of Tenant, of Landlord, of any other tenant or of any
other person, or that substantial threat to life or the safety of individuals
will exist, before agents of Tenant can be advised and respond, Landlord,
without notice to Tenant, may repair, maintain, deenergize, disconnect or
dismantle any or all equipment and/or lines of Tenant and take any other
reasonable action which in Landlord's discretion, may appear necessary, with
respect to the property of Tenant, or of Landlord, without any liability
whatever on the part of Landlord for any damage whatsoever which such action may
cause.
(b) Non-Emergency Repairs. In the event of need for repair or
maintenance of the Tower or Transmitter Building, and if such repairs or
maintenance are not, in the discretion of Landlord of an emergency nature, then
Landlord shall have the right, upon 10 days notification to Tenant, to undertake
such repair or maintenance at its convenience. In such cases, Landlord and
Tenant agree to try to coordinate such activities in such manner as will
minimize any
18
interruption that may be caused to Landlord's and Tenant's broadcast activities
or to the transmission activities of any other tenants.
ARTICLE XV
ASSIGNMENT
(a) By Landlord. This Lease may be assigned by Landlord.
(b) By Tenant. Without the prior written consent of Landlord,
such consent not to be unreasonably withheld or delayed, Tenant shall not assign
or sublease this Lease or any interest therein, and shall not encumber,
hypothecate or otherwise give as security, this Lease or any interest therein.
Notwithstanding the foregoing, Tenant may assign its rights and obligations
under this Lease to any party acquiring the license for the Station pursuant to
prior FCC approval, provided that such acquiring party agrees in writing to
assume, be bound by and comply with all of the terms and conditions of this
Lease. No assignment shall be effective as against Landlord for any purpose,
unless all sums due from Tenant, together with any costs to Landlord to cover
reasonable legal and other expenses of Landlord in connection with such
assignment, shall have been paid to Landlord.
In all such assignments, Tenant shall remain primarily liable to
Landlord for fulfillment of the terms, covenants and conditions hereof, except
that such Tenant shall be released and discharged of all liability accruing
hereunder after the effective date of such release if (i) assignee as Tenant
fully and punctually performs each and all of its obligations hereunder during
the first 12 calendar months next following the effective date of such
assignment; and (ii) the financial ability and credit standing of the assignee
(together with the financial ability and credit standing of any guarantors of
such assignee's obligations hereunder), in the reasonable judgment and
discretion of Landlord, is satisfactory to Landlord.
Landlord's consent to one assignment by Tenant or acceptance of
performance from an assignee shall not be deemed a waiver of Landlord of the
restrictions of this Article XV as to subsequent attempts to assign by Tenant or
by Tenant's heirs, successors, assigns or subtenants. As used herein the terms
Landlord and Tenant shall be deemed to include their respective heirs,
successors and permitted assigns.
ARTICLE XVI
ALTERATIONS
Tenant shall not demolish, remove or modify any installations,
additions, fixtures, structures or other improvements now or hereafter attached
to the Leased Premises or any structure thereon, without the prior written
consent of Landlord, which consent as to nonstructural modifications,
installations, additions or fixtures in the Tenant's Space shall not be
unreasonably withheld.
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ARTICLE XVII
UTILITIES
Tenant shall be responsible for furnishing and paying for all
water, fuel, air conditioning, telephone, electricity and all other utility
services directly and only utilized by it. Tenant shall install its own meter
for electrical service at the Premises.
ARTICLE XVIII
SUBORDINATION
This Lease is subject and subordinate at all times to the lien of
existing and future mortgages on the Premises and any improvements thereon.
Although no instrument or act on the part of the Tenant shall be necessary to
effectuate such subordination, the Tenant will, nevertheless, execute and
deliver such instruments subordinating this Lease to the lien of all such
mortgages as may be desired by the mortgagee, provided that in the instrument of
subordination, the mortgagee (or trustee), for itself and its successors and
assigns, agrees that, so long as Tenant shall not be in material default under
this Lease, the mortgagee (or trustee) and its successors and assigns recognize
the right of Tenant to possession under the Lease and will not disturb the
peaceful, quiet enjoyment of the demised premises by Tenant. Tenant hereby
appoints Landlord its attorney-in-fact, irrevocably, to execute and deliver any
such instrument for and in the name of Tenant. If this Lease is so subordinated,
no entry under any such mortgage or sale for the purpose of foreclosing the same
or repossessing or other action pursuant to such mortgage or other security
indenture shall be regarded as an eviction of Tenant, constructive or otherwise,
or give Tenant any rights to terminate this Lease. In any event, Tenant shall
attorn to such mortgagee or mortgagees and any assignee or purchaser therefrom.
ARTICLE XIX
SUCCESSORS
The terms, conditions and covenants contained in the Lease shall
apply to, inure to the benefit of and be binding upon, the parties hereto and
their respective successors and permitted assigns.
ARTICLE XX
NOTICES
Whenever any notice is required or permitted hereunder (other than
telephonic notices permitted hereunder), such notice shall be in writing and
shall be deemed duly given if delivered to the address of the party to be
notified or if deposited in the United States mail, postage prepaid, certified
or registered mail, return receipt requested, addressed to the party to be
notified as follows:
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TENANT: Xxxxxxx Broadcasting Company of Salt Lake, L.L.C.
0000 Xxxxx Xxxxxxxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LANDLORD: Xxxxxxx Broadcasting Company of Utah, Inc.
0000 Xxxxx Xxxxxxxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and shall be deemed received on the date of delivery to such address or, if
mailed, on the date delivery was accepted or refused by Tenant as evidence on
the return receipt.
Either party may change its address for delivery of notice by
giving notice of a change of address in compliance with the terms of this
Article XX.
ARTICLE XXI
DELAYS
In any case in which either party hereto is required to do any act
(other dm make a payment of money), delays caused by or resulting from an act of
God, war, civil commotion, fire or other casualty, labor difficulties, general
shortage of labor, materials or equipment, governmental regulations or other
causes beyond such party's reasonable control, shall not be counted in
determining the time when the performance of such act must be completed, whether
such time be designated by fixed time, a fixed period of time or a "reasonable
time". In any case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made, both to the party required to
perform such work and to the party required to make such payment, for delays and
collection of such proceeds and rewards.
ARTICLE XXII
WAIVER OF SUBROGATION
The parties hereby release each other from any and all liability
for any loss or damage caused by fire or any of the extended coverage
casualties, even if such fire or any other casualty shall be brought about by
the fault or negligence of such other party its agents, servant, employees or
invitees. Each party shall cause its fire and extended coverage policies, if
any, to include a waiver of subrogation rights.
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ARTICLE XXII
CONSTRUCTION OF AGREEMENT
This Lease and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with, the laws of the State of
Utah applicable to agreements made and to be performed in that state. In the
event any provision of this Lease shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
ARTICLE XXIV
MODIFICATIONS
Any agreement between the parties hereto shall be ineffective in
changing, modifying or discharging this Lease in whole or in part unless such
agreement is in writing and signed by the party against who such change,
modification or discharge is sought to be enforced. This Lease supersedes any
and all prior agreements between the parties, whether written or oral, with
respect to the subject matter hereof.
ARTICLE XXV
PARAGRAPH HEADINGS
Paragraph headings used in this Lease are for convenience of the
parties only and shall in no way be used to interpret or construe the agreement
of the parties.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this
agreement as of the day and year first above written.
LANDLORD:
Xxxxxxx Broadcasting Company
of Utah, Inc.
By:/s/Xxxxxx X. Xxxxxxx
-------------------------------
TENANT:
Xxxxxxx Broadcasting Company
of Salt Lake, L.L.C.
By:/s/Xxxxxxx X. Xxxxxxx
-------------------------------
22
Exhibits 1 and 2 and Exhibit A - Transmitter Facility have been intentionally
omitted by the Registrants.
A copy of these omitted Exibits will be provided to the Securities and Exchange
Commission upon request.
