Exhibits 10.05.10
AGREEMENT
BETWEEN
ATSINGER FAMILY TRUST
AND
OASIS RADIO, INC.
June 1, 1992
AGREEMENT made as of this first day of June, 1992, by and between
EDWARD G. ATSINGER III AND MONA J. ATSINGER, not individually but solely as
Trustees of the ATSINGER FAMILY TRUST ("Lessor"), and OASIS RADIO, INC., a
California corporation ("Lessee").
WHEREAS, Lessor owns certain land (the "Land") and Lessee owns certain
improvements thereon (the "Improvements"), which Land and Improvements together
comprise certain real property located on Fifteenth Avenue, in the City of
Rosamond, County of Kern, State of California, more particularly described as
set forth in Exhibit A, which is attached hereto and made a part hereof (the
"Real Property"); and
WHEREAS, the parties are desirous of making a mutually suitable and
satisfactory agreement whereby Lessor will lease to Lessee the Land
(constituting the "Leased Premises") on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the following covenants,
agreements, conditions and representations, the parties hereto agree as follows:
SECTION 1
---------
USE OF THE LEASED PREMISES
--------------------------
(a) Lessor, in consideration of the rents to be paid and covenants
herein contained, hereby leases to Lessee the Leased Premises.
(b) Lessee may use the Leased Premises for the operation of its radio
station, and, in connection therewith, for the
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installation, repair, maintenance, operation, housing and removal of its
Improvements and other related broadcasting equipment (together comprising the
"Installations"). Lessee is fully familiar with the physical condition of the
Land and has received the same in good order and condition, and agrees that the
Land complies in all respects with all requirements of this Agreement. Lessee
shall use the Land exclusively for purposes associated with the operation of a
radio station.
(c) Lessee shall have the right from time to time to substitute
Installations of similar kind and character for those hereinabove specified,
provided such changes shall be approved in advance by Lessor, and Lessor shall
not unreasonably delay or withhold its approval. In the event Lessee submits any
such changes for Lessor's approval and Lessor does not respond within thirty
(30) days after Lessor's receipt thereof, then such changes shall be deemed
approved by Lessor, so long as such changes otherwise comply with this
Agreement, five (5) days after Lessor's receipt of notice that it has not
responded.
(d) Lessee shall have access to the Leased Premises twenty four (24)
hours per day, seven (7) days per week, for the purpose of installing,
maintaining and repairing its Installations, provided that the contractors
performing such work are reasonably acceptable to Lessor.
(e) Lessor shall not be responsible for repairs or maintenance to the
Installations, except for repairs occasioned
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by the negligence of Lessor, its agents, employees or contractors.
(f) During the Term (as hereinafter defined), Lessor and Lessee shall
each provide the other with a telephone number which, if called will ring at a
location that is staffed by their respective agents twenty-four (24) hours each
and every day, seven (7) days each and every week; and Lessor and Lessee shall
notify each other promptly in the event of any change in such telephone number.
(g) Lessee shall not use or permit the Leased Premises to be used by
any dangerous, toxic, noxious or offensive trade or business, or for any
unlawful purpose.
(h) Lessee shall not directly or indirectly create or permit to be
created or to remain, and will discharge any mortgage, lien, security interest,
encumbrance or charge on, pledge of or conditional sale or other title retention
agreement with respect to the Real Property or any part thereof or Lessee's
interest therein other than (i) this Agreement, (ii) any lien, including a
mortgage on the leasehold interest of Lessee, which may be approved by the
Lessor in writing, which approval shall not be unreasonably withheld, (iii)
liens for impositions not yet payable, or payable without the addition of any
fine, penalty, interest or cost for non-payment, or being contested as permitted
by Paragraph 3(d), below, and (iv) liens of mechanics, materialmen, suppliers or
vendors, or rights thereto, incurred in the ordinary course of business for sums
which under the terms of
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the related contracts are not at the time due, provided that adequate provision
for the payment thereof shall have been made.
SECTION 2
----------
TERM AND RENT
-------------
(a) The term of this Lease (the "Term") shall commence on June 1, 1992
(the "Commencement Date") and shall expire on May 31, 2002 (the "Expiration
Date"). If the Term has been extended as provided in subparagraph (b), below,
the Expiration Date shall be the last day of the Term as so extended.
(b) Lessee shall have the option, if Lessee is not at the time in
default under this Agreement, to extend the Term of this Agreement for up to two
(2) successive periods of five (5) years each (the "Extended Terms"), and,
except as set forth in subparagraph (c), below, on the same terms, covenants and
conditions herein contained. The word "Term" as used in this Agreement shall be
deemed to include the Extended Terms when and if the Agreement is extended. Each
option to extend the Term shall be exercised only by Lessee's delivery to Lessor
by United States mail on or before ninety (90) days prior to the commencement of
the renewal term of written notice of Lessee's election to extend as provided
herein.
(c) Lessee agrees to pay rent to Lessor from the Commencement Date
through the Expiration Date, or such earlier date as this Agreement is
terminated as provided herein, at 4880 Santa Rosa Road, Suite 300, Camarillo, CA
93012, Attn: accounting, or to such other person or place as Lessor may
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designate from time to time by notice to Lessee, in the following amounts and in
the following manner:
(i) During the first year beginning with the Commencement
Date, a base rent of Ten Thousand Eight Hundred Dollars ($10,800) per
annum, in equal monthly installments of Nine Hundred Dollars ($900.00)
(the "Base Rent") in advance on the first day of each month; and
thereafter on each and every Adjustment Date (hereinafter defined) the
monthly rent shall be computed according to subparagraph (ii) below.
(ii) The term "Adjustment Date" shall mean the first (1st)
through the nineteenth (19th) anniversaries of the Commencement Date.
During the one (1) year period beginning with each Adjustment Date,
the monthly rent payable by Lessee shall reflect an adjustment, as
herein provided, for the change, if any, from the month in which the
Commencement Date falls, in the Consumer Price Index for All Urban
Consumers, All Items, U.S. Cities Average [Base Year 1982/84=100]
("CPI") published by the United States Department of Labor, Bureau of
Labor Statistics; i.e., during the one (1) year period beginning with
the Adjustment Date, the monthly rent shall be the product obtained by
multiplying the Base Rent times a fraction, the numerator of which
shall be the CPI for the calendar month of the Adjustment Date and the
denominator of which shall be the CPI for the month in which the
Commencement Date falls.
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Notwithstanding the results of the foregoing calculation, the monthly
amount payable by Lessee hereunder shall not in any event be less than
the monthly rental paid during the immediately preceding one (1) year
period. In the event that the Bureau of Labor Statistics shall change
the base period for the CPI, the new index number shall be substituted
for the old index numbers in making the above computation. In the event
the Bureau of Labor Statistics ceases publishing the CPI, or materially
changes the method of its computation, Lessor and Lessee shall accept
comparable statistics on the purchasing power of the consumer dollar as
published at the time of said discontinuation or change by a
responsible financial periodical of recognized authority to be then
chosen by Lessor subject to reasonable consent of Lessee.
(d) Rent and all other sums payable to Lessor hereunder shall be paid
without notice, demand, counterclaim, set-off, deduction or defense and without
abatement, suspension, deferment, diminution or reduction. Except as expressly
provided herein, Lessee waives all rights now or hereafter conferred by statute
or otherwise to quit, terminate or surrender this Agreement or the Real Property
or any part thereof, or to any abatement, suspension, deferment, diminution or
reduction of rent or any other sum payable by Lessee hereunder.
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thereof. Lessee shall furnish to Lessor for inspection within thirty (30) days
after written request, official receipts of the appropriate taxing authority or
other proof satisfactory to Lessor evidencing such payment. If by law any such
amount may be paid in installments, Lessee shall be obligated to pay only those
installments as they become due from time to time before any interest, penalty,
fine or cost may be added thereto; and any such amount relating to the fiscal
period of the taxing authority, part of which is included within the Term and a
part of which extends beyond the Term shall, if Lessee shall not be in default
under this Agreement, be apportioned between Lessee and Lessor as of the
expiration of the Term of this Agreement.
(d) Lessee, at its sole expense, may contest, after prior written
notice to Lessor, by appropriate legal proceedings conducted in good faith and
with due diligence, the amount or validity or application, in whole or in part,
of any tax, lien or other imposition on the Real Property, provided that (i)
Lessee shall first make all contested payments, under protest if it desires,
(ii) neither the Real Property nor any part thereof or interest therein nor any
such rents or other sums would be in any danger of being sold, forfeited, lost
or interfered with, and (iii) Lessee shall have furnished such security, if any,
as may be required in the proceedings or reasonably requested by Lessor.
(e) Lessee shall pay or cause to be paid all charges for all public or
private utility services and all sprinkler systems and protective services at
any time rendered to or in connection
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with the Real Property or any part thereof, will comply with all contracts
relating to any such services, and will do all other things required for the
maintenance and continuance of all such services.
SECTION 4
---------
INSURANCE AND INDEMNIFICATION
-----------------------------
(a) Lessee shall, at its sole cost and expense, during the Term
hereof, obtain or provide and keep in full force for the benefit of Lessor, as
an additional named insured (i) general public liability insurance, insuring
Lessor against any and all liability or claims or liability arising out of,
occasioned by or resulting from any accident or other occurrence in or about the
Real Property arising out of any act or omission of Lessee or any officer,
employee, agent or contractor of Lessee, for injuries to any person or persons,
with limits of not less than One Million Dollars ($1,000,000.00) for injuries to
one person, One Million Dollars ($1,000,000.00) for injuries to more than one
person, in any one accident or occurrence, and for loss or damage to the
property of any person or persons, for not less than One Million Dollars
($1,000,000.00); (ii) insurance with respect to the Improvements against loss or
damage by fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles, smoke and other risks from time to
time included under "extended coverage" policies, in an amount equal to at least
One Hundred Percent (100%) of the full replacement value of the Improvements
and, in any event, in an
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amount sufficient to prevent Lessor or Lessee from becoming a co-insurer of any
partial loss under the applicable policies, which shall be written on a
replacement cost basis; (iii) appropriate workers' compensation or other
insurance against liability arising from claims of workers in respect of and
during the period of any work on or about the Real Property; and (iv) insurance
against such other hazards and in such amounts as is customarily carried by
owners and operators of similar properties, and as Lessor may reasonably require
for its protection. Lessee shall comply with such other requirements as Lessor,
or any mortgagee, may from time to time reasonably request for the protection by
insurance of their respective interests. The policy or policies of insurance
maintained by Lessee pursuant to this Paragraph shall be of a company or
companies authorized to do business in California and a certificate thereof
shall be delivered to Lessor, together with evidence of the payment of the
premiums therefor, not less than fifteen (15) days prior to the commencement of
the Term hereof or of the date when Lessee shall enter upon the Leased Premises,
whichever occurs sooner. At least fifteen (15) days prior to the expiration or
termination date of any policy, Lessee shall deliver a certificate of a renewal
or replacement policy with proof of the payment of the premium therefor. Any
such insurance required by this Paragraph may, at Lessee's option, be provided
through a blanket policy or policies.
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(b) Lessee shall indemnify Lessor and hold Lessor harmless from and
against all claims, actions, losses, damages, liabilities and expenses
(including reasonable attorneys' fees) incurred by or asserted against Lessor,
whether during or after the Term of this Agreement, including by reason of
personal injury, loss of life, or damage to property, caused by or resulting
from in whole or any material part, (i) any breach of this Agreement by Lessee,
(ii) any negligent or intentional act or omission of Lessee, its employees,
agents, invitees or contractors, whether in, on, about or with respect to the
Leased Premises or otherwise, (iii) the use by Lessee of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessee on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessee pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessee's request or this
Agreement; provided, however, that Lessee shall not be required to indemnify
Lessor for any damages, injury, loss or expense arising out of Lessor's or its
agents', employees', invitees' or contractors' negligent acts or omissions.
(c) If Lessor so elects by notice to Lessee, Lessee shall have the
obligation of defending, at its sole cost and expense, by counsel selected by
Lessee and approved by Lessor (such approval not to be unreasonably withheld),
against any claim to which the foregoing indemnity may apply. Lessor may assume,
or require that such defense be assumed, by Lessor and counsel
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selected by Lessor, at the cost and expense of Lessee if Lessor is for any
reason dissatisfied with the defense by Lessee, or believes that its interests
would be better served thereby. In any case where Lessee is defending any such
claim, Lessor may participate in the defense thereof by counsel selected by it,
but at Lessor's expense. Lessee shall not enter into any settlement of any claim
without the consent of Lessor, which consent shall not be unreasonably withheld.
(d) Lessor shall indemnify Lessee and hold Lessee harmless from and
against all claims, actions, losses, damages, liabilities and expenses
(including reasonable attorneys' fees) incurred by or asserted against Lessee,
whether during or after the Term of this Agreement, including by reason of
personal injury, loss of life, or damage to property, caused by or resulting
from in whole or any material part, (i) any breach of this Agreement by Lessor,
(ii) any negligent or intentional act or omission of Lessor, its employees,
agents, invitees or contractors, whether in, on, about or with respect to the
Leased Premises or otherwise, (iii) the use by Lessor of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessor on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessor pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessor's request or this
Agreement; provided, however, that Lessor shall not be required to indemnify
Lessee for any damages, injury, loss
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or expense arising out of Lessee's or its agents', employees', invitees' or
contractors' negligent acts or omissions.
(e) If Lessee so elects by notice to Lessor, Lessor shall have the
obligation of defending, at its sole cost and expense, by counsel selected by
Lessor and approved by Lessee (such approval not to be unreasonably withheld),
against any claim to which the foregoing indemnity may apply. Lessee may assume,
or require that such defense be assumed, by Lessee and counsel selected by
Lessee, at the cost and expense of Lessor if Lessee is for any reason
dissatisfied with the defense by Lessor, or believes that its interests would be
better served thereby. In any case where Lessor is defending any such claim,
Lessee may participate in the defense thereof by counsel selected by it, but at
Lessee's expense. Lessor shall not enter into any settlement of any claim
without the consent of Lessee, which consent shall not be unreasonably withheld.
(f) Nothing in this Agreement shall be construed so as to authorize or
permit any insurer of Lessor or Lessee to be subrogated to any right of Lessor
or Lessee against the other. Each of Lessor and Lessee hereby releases the other
to the extent of its insurance coverage for any loss or damage caused by fire or
any of the extended coverage casualties, even if such fire or other casualty
shall be brought about by the fault or negligence of the other party or persons
for whose acts said party is liable.
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SECTION 5
---------
REPRESENTATIONS, WARRANTIES AND OTHER OBLIGATIONS
-------------------------------------------------
(a) Lessor represents and warrants that:
(i) The execution and performance of this Agreement shall not
constitute a breach or violation under any Agreement to which Lessor is a party.
(ii) To the best of Lessor's knowledge, there are no violations of
any federal, state, county or municipal law, ordinance, order, regulations or
requirement with respect to the Leased Premises, and as of the date of this
Agreement, no notice of any kind relating thereto (which would adversely affect
the transactions contemplated by this Agreement) has been issued by public
authorities having jurisdiction over the Leased Premises.
(iii) No person or party other than Lessor has a right to use the
Leased Premises for any purpose which would affect Lessee's right to use the
Leased Premises as contemplated hereunder.
(iv) Lessor has not received written notice of pending or
contemplated condemnation proceedings affecting the Leased Premises or any part
thereof.
(v) To the best of Lessor's knowledge, there is no action, suit or
proceeding pending or threatened against or affecting the Leased Premises or any
portion thereof and Lessor has not received notice written or otherwise of any
litigation affecting or concerning the Leased Premises
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relating to or arising out of its ownership, management, use or operation.
Lessor shall give to Lessee prompt notice of institution of any such proceeding
or litigation.
(vi) To the best of Lessor's knowledge, there are presently no
proceedings for overdue real estate taxes assessed against the Leased Premises
for any fiscal period.
(vii) Lessor shall promptly advise Lessee in writing of any written
notice received from any governmental authority to comply with the terms,
provisions and requirements of any local, state and federal laws, ordinances,
directives, orders, regulations and requirements which apply to any portion of
the Leased Premises or to any adjacent street or other public area or to the
maintenance, operation or use thereof.
(viii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby, have been duly and
validly authorized by all necessary actions on the part of Lessor (none of which
actions have been modified or rescinded and all of which actions are in full
force and effect). This Agreement constitutes a valid and binding agreement and
obligation of Lessor, enforceable in accordance with its terms.
(ix) Subject to liens and encumbrances of record, Lessor owns good
and marketable title in fee simple to the Real Property on which the Leased
Premises are located, and Lessor acknowledges that Lessee is relying upon the
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foregoing representation and warranty in entering into this Agreement and
in expending monies in connection herewith. Lessor shall not encumber or
permit any encumbrances, liens or restrictions on Lessee's Installations,
except with the prior written approval of Lessee.
(b) Each party shall comply in all material respects with all local,
state and federal laws, statutes, ordinances, rules, regulations, orders and
decrees that it knows to be applicable in connection with its activities and
operations at the Leased Premises, and Lessor shall require the same
representation and warranty from all additional users of the facilities at the
Leased Premises.
(c) The parties agree that, during the Term of this Agreement neither
party shall intentionally do anything at the Leased Premises which will
interfere with or adversely affect the operations of the other party.
(d) In the event that during the Term of this Agreement there shall be an
actual condemnation or foreclosure and taking of all of the Leased Premises, or
a portion thereof such that it renders the premises unsuitable for broadcasting,
this Agreement may be terminated by written notice from either party to the
other and thereafter each of the parties shall be relieved of any future
liability to the other under this Agreement, except as to obligations accrued
and not yet discharged at the date of termination. Following any condemnation or
foreclosing order, Lessee may continue to use the property for operations under
the
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terms of this Agreement until Lessee finds and begins to utilize new facilities
or until prevented by the condemning or foreclosing authority from utilizing the
Leased Premises, whichever occurs first.
(e) Lessee represents and warrants that its Installations to be located
on or about the Leased Premises, together with the existence of the equipment of
Lessor, and the operation thereof do not and will not result in exposure of
workers or the general public to levels of radio frequency radiation in excess
of the "Radio Frequency Protection Guides" recommended in "American National
Standard Safety Levels With Respect to Human Exposure to Radio Frequency
Electromagnetic Fields, 300 KHz to 100 GHz," issued by the American National
Standards Institute ("Acceptable Radio Frequency Radiation Standards"). Lessor
represents and warrants its equipment and property at the Leased Premises and
the operation thereof do not and will not exceed Acceptable Radio Frequency
Radiation Standards.
(f) Lessee covenants that it will not at any time during the Term of
this Agreement, transmit, store, handle or dump toxic or hazardous wastes
anywhere at or around the Leased Premises.
(g) Lessee shall promptly advise Lessor in writing of any written
notice received from any governmental authority to comply with the terms,
provisions and requirements of any local, state and federal laws, ordinances,
directives, orders, regulations, and requirements which apply to any portion of
the Leased
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sufficient for the purpose, at its sole expense, shall promptly commence and
complete the restoration, replacement or rebuilding of the Improvements as
nearly as possible to their value, condition and character immediately prior to
such damage or destruction.
(k) Lessee will execute, acknowledge and deliver to the Lessor, promptly
upon request, a certificate certifying that (i) this Agreement is unmodified and
in full force and effect (or, if there have been modifications, that the
Agreement is in full force and effect, as modified, and stating the
modifications), (ii) the dates, if any, to which rent and other sums payable
hereunder have been paid, and (iii) no notice has been received by Lessee of any
default which has not been cured, except as to defaults specified in said
certificate. Any such certificate may be relied upon by any prospective
purchaser or mortgagee of the Real Property or any part thereof.
(l) Lessor will execute, acknowledge and deliver to the Lessee or any
mortgagee, promptly upon request, a certificate certifying that (i) this
Agreement is unmodified and in full force and effect (or, if there have been
modifications, that the Agreement is in full force and effect, as modified, and
stating the modifications), (ii) the dates, if any, to which rent and other sums
payable hereunder have been paid, and (iii) whether or not, to the knowledge of
Lessor, there are then existing any defaults under this Agreement (and if so,
specifying the same). Any such certificate may be relied upon by any prospective
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purchaser transferee or mortgagee of Lessee's interest under this Agreement.
SECTION 6
---------
EVENTS OF DEFAULT
-----------------
(a) Any of the following events shall constitute a default on the part of
Lessee:
(i) The failure of Lessee to pay rent or additional rent, and
continuation of such failure for more than ten (10) days after Lessee's
receipt of written notice thereof from Lessor; provided, however, that
Lessor shall not be required to provide such written notice to Lessee more
than twice in any twelve (12) month period prior to declaring such failure
to pay an event of default; or
(ii) The failure of Lessee to cure any other default under the terms
hereof, and continuation of such failure to cure for more than thirty (30)
days after notice by Lessor, provided, however, that if the nature of
Lessee's default is such that more than thirty (30) days is required for
its cure, then Lessee shall not be deemed to be in default if Lessee has
commenced such cure within the thirty (30) day period, demonstrates to
Lessor's reasonable satisfaction that such default is curable and
thereafter diligently prosecutes such cure to completion; or
(iii) Lessee is finally and without further right of appeal or
review, adjudicated a bankrupt or insolvent, or has a receiver appointed
for all or substantially all of its
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business or assets on the ground of its insolvency, or has a trustee
appointed for it after a petition has been filed for Lessee's
reorganization under the Bankruptcy Act of the United States, or any future
law of the United States having the same general purpose, or if Lessee
shall make an assignment for the benefit of its creditors, or if Lessee's
interest hereunder shall be levied upon or attached, which levy or
attachment shall not be removed within twenty (20) days from the date
thereof.
(b) If an event of default on the part of Lessee shall occur at any time,
Lessor, at its election, may give Lessee a notice of termination specifying a
day not less than thirty (30) days thereafter on which the Term of this
Agreement shall end, unless such default shall be cured within said period, or,
if the default is such that more than thirty (30) days is required for its cure,
unless Lessee has commenced such cure within said period. If such notice is
given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, but Lessee shall remain liable for the payment of rent during the full
period which would otherwise constitute the balance of the Term of this
Agreement; and without prejudice to any other right or remedy which it may have
hereunder or by law, and notwithstanding any waiver of any prior breach of
condition or event of default hereunder, Lessor may re-enter the Leased
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Premises either by reasonable force or otherwise, or dispossess Lessee, any
legal representative of Lessee or other occupant of the Leased Premises by
appropriate suit, action or proceeding and remove its effects and hold the
Leased Premises as if this Agreement had not been made.
(c) The failure of Lessor to cure any default under the terms hereof, and
continuation of such failure to cure for more than thirty (30) days after notice
by Lessee, shall constitute a default on the part of Lessor; provided, however,
that if the nature of Lessor's default is such that more than thirty (30) days
is required for its cure, then Lessor shall not be deemed to be in default if
Lessor has commenced such cure within the thirty (30) day period, demonstrates
to Lessee's reasonable satisfaction that such default is curable and thereafter
diligently prosecutes such cure to completion.
(d) If an event of default on the part of Lessor shall occur at any time,
Lessee, at its election, may give Lessor a notice of termination specifying a
day not less than thirty (30) days thereafter on which the Term of this
Agreement shall end, unless such default shall be cured within said period, or,
if the default is such that more than thirty (30) days is required for its cure,
unless Lessor has commenced such cure within said period. If such notice is
given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, and
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Lessee shall not be liable for payment of rent for any period after such
expiration.
SECTION 7
---------
ASSIGNMENT
----------
Lessee shall not assign this Agreement nor sublet any portion of the Leased
Premises without the prior written consent of the Lessor, which consent shall
not be unreasonably withheld. Notwithstanding any assignment or sublease, Lessee
shall remain primarily liable under this Agreement.
SECTION 8
---------
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
--------------------------------------------
This Agreement shall not be a lien against the Leased Premises in respect
to any Mortgages and Security Agreements placed or hereafter to be placed by
Lessor upon the Leased Premises. The recording of such Mortgages and Security
Agreements shall have preference and precedence and be superior and prior in
lien to this Agreement, irrespective of the date of recording, and Lessee agrees
to execute any instruments, without cost, which may be deemed necessary or
desirable to further effect the subordination of this Agreement. Lessor shall
make a reasonable effort to obtain from any mortgagees or lenders holding an
interest in the nature of a mortgage in the Leased Premises an agreement that
the mortgagee or lender shall not disturb Lessee's quiet possession in the event
of foreclosure. If any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed
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of trust made by the Lessor encumbering the Leased Premises, Lessee shall attorn
to the purchaser upon any such foreclosure or sale and recognize such purchaser
as the Lessor under this Lease.
SECTION 9
---------
NON-LIABILITY OF LESSOR
-----------------------
Lessor shall not be liable for any damages or injury which may be sustained
by Lessee or any other person by reason of the failure, breakage, leakage or
obstruction of the water, sewer, plumbing, roof, drains, leaders, electrical,
air conditioning or any other equipment; or by reason of the elements; or
resulting from the carelessness, negligence or improper conduct of Lessee, its
agents, employees, contractors, invitees, assignees or successors; or
attributable to any interference with or the interruption of or failure of any
services, beyond the control of Lessor, to be supplied by Lessor.
SECTION 10
----------
QUIET ENJOYMENT
---------------
(a) Lessor agrees that it shall not enforce any unreasonable rules or
regulations which would unduly prejudice the conduct of Lessee's business, or
which would prevent full and free access to the Leased Premises by Lessee, as
herein provided.
(b) Lessor reserves and shall at all times have the right to re-enter the
Real Property to inspect the same, to supply any service to be provided by
Lessor to Lessee hereunder, and to show the Real Property to prospective
purchasers, mortgagees, or lessees, to post notices of non-responsibility,
without abatement
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of rent, provided entrance to the Real Property shall not be denied Lessee.
SECTION 11
----------
USE OF IMPROVEMENTS BY LESSOR
-----------------------------
At all times during the Term of this Agreement (a) Lessor shall have the
exclusive right to unrestricted use of the space on the radio tower located on
the Land not used by the Lessee, and (b) Lessor shall have the right to
unrestricted use of approximately 300 square feet of the transmitter building
located on the Land, as outlined on Exhibit B attached hereto. Lessor shall have
no obligation to pay rent for the use described above and may use the allowed
space for any lawful purpose which does not interfere with Lessee's operations.
Lessor shall hold Lessee harmless from and defend Lessee against any and all
claims or liability arising out of or in any way connected to Lessor's use or
occupancy of the allowed space.
SECTION 12
----------
SALE OF LEASED PREMISES BY LESSOR
---------------------------------
Notwithstanding any of the provisions of this Lease, Lessor (a) may assign,
in whole or in part, Lessor's interest in this Lease and (b) may sell all or
part of the Real Property. In the event of any sale or exchange of the Leased
Premises by Lessor and assignment by Lessor of this Lease, Lessor shall be and
is hereby relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Leased Premises occurring after the
consummation of such sale or exchange and assignment, but only upon
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the condition that, as part of such sale or exchange, Lessor will cause the
grantee to agree in writing to assume to carry out any and all of the covenants
and obligations of Lessor under this Lease occurring after the consummation of
Lessor's assignment of its interest in and to this Lease.
SECTION 13
----------
BROKERAGE
---------
The parties acknowledge and agree that this Agreement has not been brought
about as a result of the services of any real estate broker, firm or
corporation, and each indemnifies and saves the other harmless from any and all
claims from any person(s) claiming to have rendered real estate services in
connection with this Agreement.
SECTION 14
----------
SURRENDER OF PREMISES
---------------------
Upon the expiration of the Term hereof, Lessee shall surrender the Leased
Premises, and, at Lessor's option, all interest of the Lessee in and to the
Improvements (including the radio tower located on the Land), to Lessor in good
order and condition, reasonable wear and tear excepted. Any equipment, fixtures,
goods or other property of Lessee not removed within ten (10) days after any
quitting, vacating or abandonment of the Leased Premises, or upon Lessee's
eviction therefrom, shall be considered abandoned, and Lessor shall have the
right, without notice to Lessee, to sell or otherwise dispose
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of same without having to account to Lessee for any part of the proceeds of such
sale.
SECTION 15
----------
NOTICES
-------
All notices, demands, and requests required or permitted to be given
hereunder shall be in writing and sent certified mail, return receipt requested,
and if to Lessor, at 4880 Santa Rosa Road, Suite 300, Camarillo, CA 93012, Attn:
Edward G. Atsinger III, and if Lessee, at 4880 Santa Rosa Road, Suite 300,
Camarillo, CA 93012, Attn: Accounting. Either party hereto may change the place
for notice to it by sending like written notice to the other party hereto.
SECTION 16
----------
BINDING NATURE
--------------
The provisions of this Agreement shall apply to, bind and inure to the
benefit of Lessor and Lessee, their respective successors, legal representatives
or assigns. The terms of this Agreement and any disputes arising therefrom,
shall be governed by the laws of the State of California.
SECTION 17
----------
ENTIRE AGREEMENT
----------------
This Agreement contains the entire understanding and agreement between the
parties. No representative, agent or employee of Lessor has been authorized to
make any representations or promises with reference to the within agreement or
to vary, alter or modify the terms hereof. No
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additions, changes or modifications shall be binding unless reduced to writing
and signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
LESSOR: LESSEE:
ATSINGER FAMILY TRUST OASIS RADIO, INC.
/s/ Edward G. Atsinger III By: /s/ Edward G. Atsinger III
- ---------------------------------- ---------------------------------
EDWARD G. ATSINGER III EDWARD G. ATSINGER III
Trustee President
/s/ Mona J. Atsinger
- ----------------------------------
MONA J. ATSINGER
Trustee
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EXHIBIT A
BLOCK 52, BEING A PORTION OF THE EAST HALF OF SECTION 21, TOWNSHIP 9 NORTH,
RANGE 12 WEST, SAN BERNARDINO MERIDIAN, IN THE UNINCORPORATED AREA OF THE COUNTY
OF KERN, STATE OF CALIFORNIA, ACCORDING TO THE MAP OF ROSAMOND TOWNSITE, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, RECORDED AUGUST 12, 1907, IN BOOK
195 PAGES 66 AND 67 OF DEEDS.
EXHIBIT B
[LOT DRAWING APPEARS HERE]
CERTIFICATE OF UNANIMOUS CONSENT
OF
OASIS RADIO, INC.
The undersigned, being all of the members of the Board of Directors of
Oasis Radio, Inc., a California corporation ("Corporation"), do hereby consent
to and adopt the following resolutions:
RESOLVED that the Corporation is hereby authorized and directed to
lease the real estate owned by the Atsinger Family Trust and located in
Rosamond, California, pursuant to the terms of a lease in the form of and
with the terms and conditions set forth in the Lease Agreement attached
hereto and incorporated herein by reference; and
RESOLVED that the officers of the Corporation are hereby directed to
take any and all actions they deem necessary, advisable, convenient or
proper to carry out the intent of these resolutions.
IN WITNESS WHEREOF the undersigned have executed this certificate of
unanimous consent as of the 1st day of June, 1992.
/s/ Stuart W. Epperson
----------------------------------
Stuart W. Epperson
/s/ Edward G. Atsinger III
----------------------------------
Edward G. Atsinger III