AMENDED AND RESTATED
LEASE AGREEMENT
EFFECTIVE: July 1, 1996
BETWEEN: KKSN, INC. "LESSOR"
AND: CHANNEL 32 INCORPORATED "LESSEE"
1. LEASED PREMISES. Lessor hereby leases to Lessee certain antenna
attachment space consisting of approximately 50 vertical feet centered at the
approximately 200 foot level, on any side of the tower known as The KXYQ Tall
Tower, or top mounted on The KXYQ Xxxxx Tower to the extent that certified
engineering studies are approved by the Lessor and Lessee, such approval not to
be unreasonably withheld (either tower hereby known as the "Tower"), together
with space for one studio transmitter link open and receiver antenna at
approximately the 100 foot level of the Tower. The Tower is located in the
County of Clackamas at Molalla, Oregon. Lessee shall also have access to the
equipment house as described in paragraph 5 below (the Tower and equipment house
shall be considered the "premises.")
2. LEASE TERM. The term of this Lease shall commence on July 1, 1996
and shall continue until December 31, 1996, unless otherwise terminated or
renewed pursuant to this Lease. The Tower is located on real property leased by
Lessor under a Ground Site Lease Agreement (the "Master Lease") with Cavenham
Forest Industries, Inc. (the 'Master Lessor") expiring on August 31, 2001, and
subject to renewal at Lessor's option through August 31, 2016. The leased
premises shall only be used by Lessee or its successor for the audio and visual
signal of one television station.
3. RENTAL. Lessee shall pay Lessor as monthly rent for the initial
term the sum of $4,100, payable on the first day of the month. Lessor
acknowledges receipt of $4,000 paid by Lessee as a security deposit. Lessor may
commingle the deposit with its funds and Lessor shall have the right to offset
against the deposit any sums owing from Lessee to Lessor or any other party and
not paid when due, any damages caused by Lessee's default, the cost of curing
any default by Lessee should Lessor elect to do so, and the cost of performing
any repair or cleanup that is Lessee's responsibility under this Lease. Offset
against the deposit shall not be an exclusive remedy in any of the above cases,
but may be invoked by Lessor, at its option, in addition to any other remedy
provided by law or this Lease for Lessee's nonperformance. Each time an offset
is claimed against the deposit, and, unless the lease is terminated, Lessee
shall, after ten days notice from Lessor, deposit a sum equal to the amount of
the offset so that the total deposit amount shall remain constant throughout the
Lease term. The deposit (or any sum that has not been
retained by the Lessor as set forth above) shall be refundable to Lessee within
30 days after expiration of the Lease or other termination not caused by
Lessee's default.
4. RENEWAL OPTION. If this Lease is not in default at the time each
option is exercised or at the time the renewal term is to commence, and subject
to subparagraph G of this paragraph 4, Lessee shall have the option to renew
this Lease, as follows:
A. On December 31, 1996, Lessee shall have the option to
renew the Lease for a period of three years, with rent to be paid monthly in
advance on the first day of the month as follows:
OPTION YEAR MONTHLY RENT ANNUAL RENT
----------- ------------ -----------
1 $4,300 $51,600
2 $4,400 $52,800
3 $4,500 $54,000
B. On December 31, 1999, Lessee shall have the option to
renew the Lease for 2 period of five years with the rent to be paid monthly, in
advance on the first day of the month as follows:
OPTION YEAR MONTHLY RENT ANNUAL RENT
----------- ------------ -----------
1 $4,680 $56,160
2 $4,867 $52,404
3 $5,062 $60,744
4 $5,264 63,168
5 $5,475 $65,700
C. On December 31, 2004, Lessee shall have the option to
renew the Lease for a period of five years with rent to be paid monthly in
advance on the first day of the month as follows:
OPTION YEAR MONTHLY RENT ANNUAL RENT
----------- ------------ -----------
1 $5,694 $68,328
2 $5,922 $71,064
3 $6,159 $73,908
4 $6,405 $76,860
5 #6,661 $79,932
D. On December 31, 2009, Lessee shall have the option to
renew the Lease for a period of five years with rent to be paid monthly in
advance on the first day of the month as follows:
OPTION YEAR MONTHLY RENT ANNUAL RENT
----------- ------------ -----------
1 $6,927 $83,129
2 $7,205 $86,454
3 $7,493 $89,913
4 $7,792 $93,509
5 $8,104 $7,250
E. On December 31, 2014, Lessee shall have the option to
renew the Lease for a period of 20 months with rent to be paid monthly in
advance on the first day of the month as follows:
MONTHS MONTHLY RENT
January-December 2015 $8,428
January-August 2016 $8,765
F. The following shall apply to any renewal terms:
(1) Each of the renewal terms shall commence on the
day following expiration of the preceding term.
(2) The option may be exercised by written notice to
Lessor given not less than 90 days prior to the last
day of the expiring term.
(3) The terms and conditions of the Lease for each
renewal term shall be identical with the original term
except for rent and except that Lessee will no longer
have any option to renew this Lease for any term that
has been exercised.
X. Xxxxxx will use its best efforts to keep the Master Lease
in full force and effect but shall have no liability to Lessee for (i) damages
to Lessee resulting from a breach of the Master Lease by the Master Lessor or
(ii) Lessor's failure to exercise its renewal option (effective August 31, 2001)
under the Master Lease. If, however, Lessor fails to exercise its renewal option
under the Master Lease, Lessor shall notify Lessee as early as Lessor is aware
of its intent not to renew thus providing Lessee with the option to renew the
Master Lease via Lessee's direct contractual agreement thereafter with Master
Lessor.
5. USE OF PREMISES. Lessee shall use the leased premises during the
term of this Lease solely for the purpose of affixing Lessee's antenna to the
Tower and for no other purpose whatsoever without Lessor's prior written
consent. Lessee shall also have the right to p lace its transmitter, space tuner
and related equipment in the
equipment house used in coordination with the Tower, and to place necessary
connection cables and wave guide from the equipment house to Lessee's antenna.
Lessee shall have the right to ingress and egress in and upon the lease premises
for the purpose of operating, repairing, inspecting and placing such
transmitter, antenna and related equipment. Lessee shall have such additional
rights as are set forth on Exhibit A hereto.
Any and all work performed by Lessee on the Tower or in the equipment
building in connection with this paragraph or paragraph 7 below shall be
performed in a workmanlike, professional manner in accordance with generally
accepted standards of good engineering practice, and in compliance with all
international, federal, state and local treaties, laws, codes, rules and
regulations. Lessee further agrees that only Lessee's staff or bonded and
insured companies; acceptable to Lessor will be permitted to climb; install
equipment, or otherwise work on the Tower. Lessee shall not make any unlawful,
improper or offensive use of the lease premises, will not permit any
objectionable noise or odor to escape out of or to be emitted from the lease
premises or do anything or permit anything to be done upon or about the premises
in any way tending to create a nuisance. Lessee shall comply at Lessee's own
expense with all laws and regulations of any municipal, county, state, federal
or other public authority respecting the use of the premises by Lessee.
In the event that Lessee wishes to add any equipment to the Tower, it
shall provide Lessor with a complete written description of the equipment,
including the manufacturer's specifications and the location where it would be
placed on the tower. Lessor will then conduct, or have conducted, an engineering
analysis to determine the feasibility of adding the equipment. The cost of such
study, whether conducted by Lessor or an outsider, shall be borne by Lessee upon
prior consultation with Lessee and approval of Lessee (which shall not
unreasonably be withheld). In the event Lessor approves the addition of said
equipment, and the parties agree on the rent to be charged for such equipment
and any other special terms relative thereto, the parties shall enter into an
Addendum to this Lease setting forth the details of their agreement with respect
to said equipment.
6. UTILITIES AND SERVICES. Lessee shall pay for all of its utilities
and shall pay for separate metering of the electrical power it uses at the
premises.
7. REPAIRS AND IMPROVEMENTS, OBJECTIONABLE INTERFERENCE.
A. Lessor shall maintain the Tower structure in substantially
its present condition throughout the term of this lease but shall not be
required to make any other repairs, alterations, additions or improvements to or
upon the lease premises during the term of this Lease. Lessee hereby agrees to
maintain and keep the lease premises in good order and repair during the entire
term of this Lease at Lessee's own cost and expense. Lessee agrees to comply
with all electrical building codes and
safety regulations applicable to the leased premises. Lessee further agrees that
it will make no alterations, additions, or improvements to or upon the premises
without the prior written consent of Lessor.
B. It is understood and agreed that Lessor reserves and at
any and all times shall have the right to alter, repair or improve the Tower and
equipment house or to add thereto, and for that purpose at any time may erect
scaffolding and all other necessary structures about and upon the demised
premises, and Lessor and Lessor's representatives, contractors, and workmen for
that purpose may enter in or about the demised premises with such materials as
Lessor may deem necessary therefore, and Lessee waives any claim to damages. In
connection with any such alteration, repair or improvement, Lessee shall comply
with requests by Lessor to decrease power or reduce or cease broadcasting until
such time as the alteration, repair or improvement is completed. Lessor agrees
that work will be done in such a way as to cause minimal interference with
Lessee's broadcasts, shall complete timely improvements and shall make every
effort to maintain the full broadcast signal. For any repairs by Lessor
requiring Lessee to cease broadcasting Lessor shall use its best efforts to
complete such repairs during the hours of 12 midnight to 5 A.M.
C. As used herein, the term "Interference with a Broadcasting
Activity" means (a) a condition existing which constitutes "interference" within
the meaning of the provisions of the recommended practices of the Electronics
Industry Association ("EIA") as well as the rules and regulations of the FCC
then in effect, or (b) there exists a material impairment of the quality of
either the sound or picture signals of a broadcasting activity of any tenant on
the Tower in a material portion of the broadcast service area of such activity,
as compared to those which were obtained prior to commencement of or alteration
to the operations of the broadcaster involved on the Tower.
D. Lessee, Lessor and future occupants (i.e. any other tenant
or other occupant on the tower, including but not limited to, Lessor) herein
defined as "Occupant" shall comply with all FCC requirements for resolving
radiated and blanketing types of interference. In addition to any responsibility
indicated by FCC regulations, any interference determined to be caused by a
single tenant shall be that tenant's sole responsibility to resolve. In the
event that a change in power output, antenna gain, or location, or the addition
of another broadcast tenant creates radio frequency radiation levels in excess
of local, state or federal regulations, the tenant making the change will be
fully responsible for reducing radiation power to compliance levels.
E. Occupant 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. In the event the
use of Occupant's equipment results in Interference with a Broadcasting
Activity, Occupant shall be so
notified, and shall take immediate steps to correct such interference. Failure
of Occupant to commence correction within 48 hours of such notice shall
constitute a material breach of this Lease and Occupant hereby authorizes Lessor
to take whatever steps are necessary to prevent or correct such interference in
the event of Occupant's failure to promptly do so. Failure of Occupant to
accomplish corrections within 30 days of such notice shall constitute a material
breach of this Lease, and Lessor shall be entitled to equitable relief upon any
breach hereof.
F. If, in the sole judgment of Lessor, any electrical,
electromagnetic, radio frequency or other interference shall result from the
operation of any of Occupant's equipment, other than its main broadcast
transmitter, Occupant agrees that Lessor may, at Lessor's sole option, shut down
Occupant's equipment upon four hours prior oral notice to Occupant; provided,
however if an -emergency situation exists, which Lessor reasonably determines in
its sole discretion to be attributable to Occupant's equipment, Lessor shall
immediately notify Occupant verbally, who shall act immediately to remedy the
emergency situation. Should Occupant fail to so remedy said emergency situation,
Lessor may then act to shut down Occupant's equipment. Occupant shall indemnify
Lessor and hold it harmless from all expenses, costs, damages, loss, claims or
other liabilities arising out of said shutdown. Occupant agrees to cease
operations (except for intermittent testing on a schedule approved by Lessor)
until the interference has been corrected to the satisfaction of Lessor. If such
interference has not been corrected within 60 days, Lessor may, at its sole
option, either terminate this Lease, or may require that Occupant immediately
remove from the premises the specific item of equipment causing such
interference, in which latter case the Monthly Rent shall be reduced by the
portion of the rent applicable to such equipment for the remainder of the term
of this Lease and all other terms and conditions of this Lease shall remain in
full force and effect.
8. LESSOR'S RIGHT OF ENTRY. Lessor may enter the lease
premises at any time to (i) inspect the premises, Tower, and equipment house,
(ii) exhibit the premises to prospective purchasers, lenders, or tenants, (iii)
determine whether Lessee is complying with all its obligations hereunder, (iv)
post notices of nonresponsibility, and (v) make repairs or repairs to any
adjoining space or utility services or make repairs, alterations or improvements
to any other portion of the premises, except as provided in paragraph 7.B.
Lessee hereby waives any claim for damages for any injury or inconvenience to or
interference with Lessee's business, any loss of occupancy or quiet enjoyment of
the premises, or any other loss occasioned by such entry. Lessor shall at all
times have and retain a key with which to unlock all of the doors in, upon, or
about the premises (excluding Lessee's vaults, safes, and similar areas
designated in writing by Lessee in advance), and Lessor shall have the right to
use any and all means which Lessor may deem proper to open said doors in an
emergency in order to obtain entry to the premises, and any entry to the
premises obtained by Lessor by any of said means, or otherwise, shall not under
any circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the premises or
an eviction, actual or constructive, of Lessee from the premises, or any portion
thereof.
9. ASSIGNMENT.
A. Lessee shall not assign, sublet, transfer, pledge,
hypothecate, surrender, or dispose of this Lease, or any interest herein, or
permit any other person or persons whomsoever to occupy the premises without the
prior written consent of Lessor (which consent shall be based upon the financial
capabilities and reputation within the broadcast industry of the proposed
assignee, sublessee or transferee but shall not be unreasonably withheld by
Lessor; it being further understood that Lessor's failure to object within 15
days of receiving notice requesting Lessor's consent shall be deemed to
constitute Lessor's consent). Any such attempted assignment without such consent
shall be void and shall constitute a breach of this Lease. In the event Lessor
gives its consent, the transferee shall expressly assume all of Lessee's
obligations under this Lease, provided that consent to the transferee's
assumption shall not in any way relieve or discharge Lessee's obligations under
this Lease. If Lessee is a corporation, any transfer of this Lease from Lessee
by merger, consolidation or liquidation or any change in the ownership of, or
power to vote, the majority of the outstanding voting stock of Lessee, shall
constitute an assignment for the purposes of this section. Notwithstanding the
foregoing, Lessor consents to the collateral assignment of this Lease by Lessee
to Aspen TV pursuant to Aspen TV's loan agreements with Lessee. If Lessee (other
than in the course of a bona fide sale of its television station) assigns this
Lease or sublets the lease premises for an amount in excess of the rent called
for by this Lease, such excess shall be paid to Lessor promptly as it is
received by Lessee. In the event Lessee shall assign or sublet the lease
premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorney's fees incurred in connection
therewith.
X. Xxxxxx may at any time assign or transfer its interest as
Lessor in and to this Lease, or any part thereof, and may at any time sell or
transfer its interest in the fee of the Property, or its interest in and to the
whole or any portion of the Property, subject to Lessee's rights under this
Lease. If the transferee assumes all of Lessor's obligations under this Lease,
Lessor shall be released from all liability hereunder.
10. LIENS; TAXES. Lessee will not permit any lien of any kind, type
or description to be placed or imposed upon the Tower. In addition, Lessee shall
pay as due all taxes on its personal property located on the lease premises and
shall provide satisfactory proof of payment of such taxes to Lessor.
11. INSURANCE AND INDEMNITY.
A. Lessee agrees to promptly reimburse Lessor for Lessee's
pro rata share (based upon the number of Occupants on the Tower and those using
the equipment house) of all costs for the property and casualty insurance
obtained by Lessor with respect to the Tower and equipment lease.
B. Lessee further agrees at all times during the term of this
Lease, at its own expense, to maintain, keep in effect, furnish, and deliver to
Lessor its own liability insurance policy in form and with an insurer
satisfactory to Lessor, insuring Lessee against all liability for damages to
person or property in or about the leased premises, the Tower and equipment
house; the amount of the liability insurance shall not be less than $500,000 for
injury to one person, $1,000,000 for injuries arising out of any one accident
and not less than $100,000 for property damage, and shall also maintain in
effect worker's compensation insurance. The limits of said insurance shall not,
however, limit the liability of Lessee hereunder. Lessee shall name Lessor as an
additional insured thereunder and shall present Lessor with proof of insurance
and such policies shall further provide that they are not cancelable or
materially alterable except upon no less than 30 day, advance written notice to
Lessor. Lessor shall provide its own liability insurance independent of
aforementioned Lessee liability policy.
C. Lessee shall indemnify and save harmless Lessor and its
agents, of and from any and all claims, demands, actions, losses, costs,
expenses (including reasonable attorneys' fees whether or not an action is
instituted), damages, liabilities, or recoveries in connection with loss of
life, personal injury and/or damage to property arising from or out of or by
reason of the condition, use, misuse, or occupancy of the leased premises and
Tower or any occurrence in, upon, at or about the leased premises and Tower
caused by Lessee, its employees, invitees, customers or any other person in or
about the lease premises at Lessee's request or Lessee's failure to comply with
any covenant of this Lease on his part to be performed. Lessee further agrees
that Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers or any other person
in or about the lease premises at Lessee's request, nor shall Lessor be liable
for injury to Lessee's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects or pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether the said damage or injury results from
conditions arising upon the lease premises or from other sources or places and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Lessee. Lessor shall not be liable for any
damages arising from any act or neglect of any other tenant, if any, of the
lease premises.
D. Each of Lessor and Lessee agrees that its respective
insurance carriers shall not have a subrogated claim against the other party
hereto.
12. DAMAGE BY CASUALTY, FIRE AND DUTY TO REPAIR. In the event of the
destruction of the Tower or equipment house by fire or other casualty, either
party may terminate this Lease as of the date of the fire or casualty; provided
however that in the event of damage to the Tower by force or other casualty to
the extent of 25% or more of the value of the Tower, the Lessor may or may not
elect to repair the Tower. Written notice of Lessor's election shall be given to
Lessee within fifteen days after the occurrence of the damage. As long as Lessee
is not then in default, any prepaid rent and deposits for the unexpired term
shall be refunded to the Lessee within 30 days after Lessor's election
13. EMINENT DOMAIN. In case of the condemnation or purchase of all or
any substantial part of the leased premises by any public or private corporation
with the power of condemnation, and such action materially interferes with
Leasee's or Lessor's use of the premises, this Lease may be terminated,
effective on the date possession is taken, by either party upon written notice
to the other and, in that case, the Lessee shall not be liable for any rent
after the termination date (provided, however, that Lessor shall not terminate
this Lease if Lessor elects to continue its own broadcast activities at the
Tower). Lessee shall not be entitled to and hereby expressly waives any right to
any part of the condemnation award or purchase price other than a reasonable
value of loss of tenancy. As long as Lessee is not then in default,, any prepaid
rent and deposits for the unexpired term shall be resumed to the Lessee within
30 days from the date possession is taken.
14. DELIVERING UP PREMISES ON TERMINATION. At the expiration of the
term or upon any sooner termination thereof, Lessee will quit and deliver up the
premises and all future erections or additions to or upon the same to Lessor or
those having Lessor's estate in the premises, peaceably, quietly, and in as good
order and condition, reasonable use and wear alone excepted, as the same are now
in or hereafter may be put in by Lessor.
15. DEFAULT, INSOLVENCY AND LESSOR'S RIGHTS. The occurrence of any
one or more of the following events ("Event of Default") shall constitute a
material default and breach of this Lease by Lessee:
A. If Lessee shall fail to pay any rent when the same becomes
due and payable and such failure shall continue for a period of 10 days after
written notice of such failure (provided, however, that notice shall be required
on no more than one occasion during any calendar year); or
B. If Lessee shall fail to pay any other sum or charge
payable by Lessee hereunder when the same becomes due and payable and such
failure shall continue for more than 10 days after written notice of such
failure; or
C. If Lessee shall make any transfer or assignment of any
interest in the Premises or under this Lease without Lessor's prior written
consent; or
D. If Lessee shall make a general assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a petition in bankruptcy, or shall be adjudicated as
bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future statute, law, or regulation, or shall file an
answer admitting 6r shall fail timely to contest the material allegations of a
petition filed against it in any such proceeding, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver, or liquidator of Lessee
or any material part of its properties; or
E. If within 90 days after the commencement of any proceeding
against Lessee seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future statute, law, or regulation, such proceeding shall not have been
dismissed or if, within 90 days after the appointment without the consent or
acquiescence of Lessee of any trustee, receiver, or liquidator of Lessee or of
any material part of its properties, such appointment shall not have been
vacated; or
F. If this Lease or any estate of Lessee hereunder shall be
levied upon under any attachment or execution and such attachment or execution
is not vacated within 10 days; or
G. If Lessee shall abandon the premises. For purposes of this
Lease, abandon shall mean the failure of Lessee to occupy the premises or the
Tower for 1 5 days for the purposes permitted under this Lease.
16. REMEDIES ON DEFAULT. Upon any Event of Default, Lessor may
exercise any one or more of the remedies set forth in this section, or any other
remedy available under applicable law or contained in this Lease.
A. Lessor may terminate this Lease and keep any and all
monies previously collected and advanced to Lessor.
X. Xxxxxx may reenter the premises and Tower and remove all
persons and property and repossess and enjoy the premises and Tower, without
notice, either by summary proceedings, or by any other applicable action or
proceeding, or by force or otherwise (without being liable to indictment,
prosecution or damages therefore).
Lessor may use the premises and Tower for Lessor's own purposes or relet it,
without prejudice to any other remedies that Lessor may have by reason of
Lessee's default. None of these actions will be deemed an acceptance of
surrender by Lessee. To the extent permitted by law, Lessee expressly waives the
service of any notice of intention to terminate this Lease or to retake the
premises and Tower, and waives service of any demand for payment of rent or for
possession, and of any and every other notice or demand required or permitted
under applicable law.
X. Xxxxxx at its option may relet the whole or any part of
the premises and Tower from time to time, either in the name of Lessor or
otherwise, to such tenants, for such terms ending before, on, or after the
expiration date of the lease term, at such rentals and upon such other
conditions (including concessions and free rent periods) as Lessor, in its sole
discretion, may determine to be appropriate. Lessor shall have no obligation to
relet the premises and Tower or any part and shall not be liable for refusal or
failure to relet the premises and Tower or, in the event of any such reletting,
for refusal or failure to collect any rent due upon such reletting. No such
refusal or failure shall operate to relieve Lessee of any liability under this
Lease or otherwise affect any such liability. Lessor at its option may make such
physical changes to the premises and Tower as Lessor, in its sole discretion,
considers advisable or necessary in connection with any such reletting or
proposed relenting, without relieving Lessee of any liability under this Lease
or otherwise affecting Lessee's liability. If there is other unleased space on
the Tower, Lessor shall have no obligation to attempt to relet the premises and
Tower prior to leasing other space on the Tower.
D. Whether or not Lessor retakes possession or relets the
premises and Tower, Lessor shall have the right to recover unpaid rent and all
damages caused by the default, including attorneys' fees. Damages shall include,
without limitation, (i) all rentals lost, (ii) all legal expenses and other
related costs incurred by Lessor following Lessee's default, (iii) all costs
incurred by Lessor in restoring the premises and Tower to good order and
condition, or in remodeling, renovating, or otherwise preparing the premises and
Tower for reletting, and (iv) all costs incurred by Lessor in reletting the
premises and Tower, including, without limitation, any brokerage commissions and
the value of Lessor's time. Lessor may xxx periodically for damages as they
accrue without barring a later action for further damages. Lessor may in one
action recover accrued damages plus damages attributable to the remaining lease
term equal to the difference between the rent reserved in this Lease (including
estimated amount of additional rent as determined by Lessor) for the balance of
the lease term after the time of award, and the fair rental value of the
premises and Tower for the same period, discounted to the time of award at the
rate of 9% per annum. If Lessor has relet the premises and Tower for the period
which otherwise would have constituted the unexpired portion of the lease term,
or any part, the amount of rent received upon such reletting shall be deemed,
prima facie, to be the fair and
reasonable rental value for the part or the whole of the premises and Tower so
relet during the term of relenting.
E. The remedies provided for in this Lease are in addition to
any other remedies available to Lessor at law or in equity by statute or
otherwise.
17. HOLDING OVER. In the event that Lessee for any reason shall hold
over the expiration of this Lease, or any allowed renewal thereof as set out in
paragraph 4 above, such holding over shall not be deemed to operate as a renewal
or extension of this Lease, but shall only create a tenancy from month to month
which may be terminated at will at any time by Lessor.
18. ATTORNEYS' FEES AND COURT COSTS. In case suit or action is
instituted to enforce compliance with any of the terms, covenants or conditions
to this lease, or to collect the rental which may become due hereunder, or any
portion thereof, the losing party agrees to pay such sum as the trial court may
adjudge reasonable as attorneys' fees to be allowed plaintiff in such suit or
action and in the event any appeal is taken from any judgment or decree in such
suit or action, the losing party agrees to pay such further sum as the appellate
court shall adjudge reasonable as plaintiffs attorney's fees on such appeal.
Lessee also agrees to pay and discharge all Lessor's costs and expenses,
including Lessor's reasonable attorneys' fees, that shall arise from enforcing
any provisions or covenants of this Lease even though no suit or action is
instituted.
19. WAIVER. Any waiver by Lessor of any breach of any covenant herein
contained to be kept and performed by Lessee shall not be deemed or considered
as a continuing waiver, and shall not operate to bar or prevent Lessor from
declaring a default for any succeeding breach, either of the same condition or
covenant or otherwise.
20. SUCCESSORS. This Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, no transfer of this Lease by Lessee or its successors or
assigns, whether by operation of law or by voluntary or involuntary assignment
with or without the consent of Lessor, shall diminish, alter, or reduce the
direct and primary liability of Lessee under this Lease for the full and
complete performance during and throughout the lease term of all covenants,
obligations, and agreements contained herein.
21. SEVERABILITY. Any provision of this Lease determined to be
invalid by a court of competent jurisdiction shall in no way affect any other
provision hereof.
22. NOTICES. Any notice, consent, demand, request, approval or other
communication to be given hereunder by any party to another shall be deemed to
have been duly given if given in writing and personally delivered or sent by
overnight
delivery service, telegram, facsimile transmission, telex or United States mail,
registered or certified, postage prepaid, with return receipt requested, to the
following addresses:
If to Lessor: KKSN, Inc.
000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
ATT: General Manager
Fax: 000-000-0000
with a copy to:
x/x Xxxxxxxx Xxxxx Xxxxxxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
ATT: Xxxx X. Xxxxxxx, President--Radio Group
Fax: 000-000-0000
If to Lessee: Channel 32 Incorporated
00000 XX Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
ATT: XXXXXX X. XXXXXXXX
Fax: (000) 000-0000
Either party may change its address for notice purposes by giving notice of such
new address to the other party in accordance with the terms of this section.
Notice so given shall, in the case of notice so given by mail, be deemed to be
given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by telegram, facsimile transmission, telex
or personal delivery, on the date of actual transmission or, as the case may be,
personal delivery.
23. EXCULPATORY CLAUSES.
A. Except for damage resulting from Lessor's negligence,
Lessor shall not be liable to Lessee, or to any other person, for any damage
occasioned by failure in any electrical, plumbing, gas, water, steam, sprinkler,
or other pipe or sewage systems, or by the leaking of any pipes in or about the
leased premises and Tower, or for any damage occasioned by water being upon or
coming through the roof, or for any damage arising from any acts or neglect of
occupants of adjacent property or the public.
B. No act or omission of either party occurring prior to the
effective date of this agreement shall be asserted as a claim or defense by the
other party, by way of setoff, or otherwise, in any action or proceeding arising
from this lease agreement, or the relationship created by this lease agreement.
C. Lessee accepts the leased premises, the Tower and the
equipment house in 'AS IS' condition, subject to all applicable zoning,
municipal, county, state and federal laws, ordinances and regulations governing
and regulating the use of the lease premises. Lessee acknowledges that Lessor
has made no representations or warranties as to the present or future
suitability of the leased premises for the conduct of Lessee's business.
24. ENTIRE AGREEMENT. This Lease is the entire agreement between the
parties, and there are no agreements or representations between the parties
except as expressed herein. Except as otherwise provided herein, no subsequent
change or addition to this Lease shall be binding unless in writing and signed
by the parties hereto.
25. INTENDED BENEFICIARIES. The rights and obligations contained in
this Lease are hereby declared by the parties hereto to have been provided
expressly for the exclusive benefit of such entities as set forth herein and
shall not benefit, and do not benefit, any unrelated third parties.
26. MUTUAL CONTRIBUTION. The parties to this Lease and their counsel
have mutually contributed to its drafting. Consequently, no provision of this
Lease shall be construed against any party on the ground that such party drafted
the provision or caused it to be drafted or the provision contains a covenant of
such party.
27. NUMBER AND GENDER. When required by the context, each number
(singular and plural) shall include all numbers and each gender shall include
the feminine, masculine and neuter.
IN WITNESS WHEREOF, the parties have executed this instrument
effective the date and year first written above.
KKSN, INC. CHANNEL 32 INCORPORATED
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
_____________________________ By: ____________________________
Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxx
President-Radio Group Executive Vice President
EXHIBIT A
CHANNEL 32 INCORPORATED
00000 XX Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
KKSN, Inc.
Re: Tower Lease
Ladies and Gentlemen:
Concurrently herewith you, KKSN, Inc. ("Lessor"), and we, Channel 32
Incorporated ('Lessee"), are entering into an Amended and Restated Lease
Agreement dated JULY 1 , 1996, for lease of space on a tower and equipment house
at Molalla, Oregon in Clackamas County (the "Lease"). All terms defined in the
Lease are used with the same meaning herein.
Lessee may attempt to negotiate, but has no obligation to negotiate,,
with the Owner of the fee property surrounding the premises (the "Owner") for
additional land on which to construct a new equipment house (the 'New Building")
in order to get Lessee's equipment farther from the Tower to reduce the risk of
damage to the equipment from ice sheeting off of the Tower. If Lessee decides to
enter into such negotiations with the Owner, and concludes such negotiations
with the Owner, the Lessor hereby consents to Lessee's construction of such New
Building on land outside of the premises and agrees that Lessee shall have such
rights of ingress and egress from the New Building to the premises as Lessee
shall require in order to connect Lessee's equipment in the New Building with
Lessee's transmitter and other equipment that remain on the premises. Lessor
further acknowledges that Lessee's abandonment of the equipment house on the
premises because of Lessee having moved its equipment to the New Building will
not be considered an abandonment of the Lease.
Please confirm your agreement to the foregoing by signing in the
space below.
CHANNEL 32 INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________
Xxxxxx X. Xxxxxxxx
Its EXECUTIVE VICE PRESIDENT
ACCEPTED AND AGREED:
KKSN, INC.
By /s/ Xxxx X. Xxxxxxx
___________________________
Its PRESIDENT - RADIO GROUP
