Exhibit 10.05.14
AGREEMENT
BETWEEN
EDWARD G. ATSINGER III AND STUART W. EPPERSON
AND
SALEM MEDIA OF CALIFORNIA, INC.
February 1, 1992
AGREEMENT made as of this first day of February, 1992, by and between
EDWARD G. ATSINGER III AND STUART W. EPPERSON ("Lessor"), and SALEM MEDIA OF
CALIFORNIA, INC., a California corporation ("Lessee").
WHEREAS, Lessor owns certain land (the "Land") and certain
improvements thereon (the "Improvements"), which Land and Improvements together
comprise certain real property located in the City of Paramount, in the County
of Los Angeles, State of California, more particularly described as set forth in
Exhibit A, which is attached hereto and made a part hereof, and certain
easements more particularly described as set forth in Exhibit B, which is
attached hereto and made a part hereof (the "Easements") (together comprising
the "Real Property"); and
WHEREAS, the parties are desirous of making a mutually suitable and
satisfactory agreement whereby Lessor will lease to Lessee approximately 43,745
square feet of the Real Property, more particularly described as set forth in
Exhibit C, which is attached hereto and made a part hereof, and the Easements
(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:
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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 installation, repair,
maintenance, operation, housing and removal of its broadcasting towers and
equipment (the "Installations"). Lessee is fully familiar with the physical
condition of the Leased Premises and has received the same in good order and
condition, and agrees that the Leased Premises complies in all respects with
all requirements of this Agreement. Lessee shall use the Leased Premises
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.
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(d) Lessee shall have access to the Leased Premises twenty-four (24)
hours per day, seven (7) days per week, for the purpose of installing,
maintaining and repairing its Installations, provided that the contractors
performing such work are reasonably acceptable to Lessor.
(e) Lessor shall not be responsible for repairs or maintenance to the
Installations, except for repairs occasioned by the negligence of Lessor, its
agents, employees or contractors.
(f) During the Term (as hereinafter defined), Lessor and Lessee shall
each provide the other with a telephone number which, if called will ring at a
location that is staffed by their respective agents twenty-four (24) hours each
and every day, seven (7) days each and every week; and Lessor and Lessee shall
notify each other promptly in the event of any change in such telephone number.
(g) Lessee shall not use or permit the Leased Premises to be used by
any dangerous, toxic, noxious or offensive trade or business, or for any
unlawful purpose.
(h) Lessee shall not directly or indirectly create or permit to be
created or to remain, and will discharge any mortgage, lien, security interest,
encumbrance or charge on, pledge of or conditional sale or other title retention
agreement with respect to the Real Property or any part thereof or Lessee's
interest therein other than (i) this Agreement, (ii) any lien, including a
mortgage on the leasehold interest of Lessee, which
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may be approved by the Lessor in writing, which approval shall not be
unreasonably withheld, (iii) liens for impositions not yet payable, or payable
without the addition of any fine, penalty, interest or cost for non-payment, or
being contested as permitted by Paragraph 3(d), below, and (iv) liens of
mechanics, materialmen, suppliers or vendors, or rights thereto, incurred in the
ordinary course of business for sums which under the terms of the related
contracts are not at the time due, provided that adequate provision for the
payment thereof shall have been made.
SECTION 2
---------
TERM AND RENT
-------------
(a) The term of this Lease (the "Term") shall commence on February 1,
1992 (the "Commencement Date") and shall expire on January 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
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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: Edward G. Atsinger III, or to such other person or place as Lessor
may designate from time to time by notice to Lessee, in the following amounts
and in the following manner:
(i) During the first year beginning with the Commencement
Date, a base rent of One Hundred Twenty Thousand Dollars ($120,000)
per annum, in equal monthly installments of Ten Thousand Dollars
($10,000.00) (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
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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.
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
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herein, Lessee waives all rights now or hereafter conferred by statute or
otherwise to quit, terminate or surrender this Agreement or the Leased Premises
or any part thereof, or to any abatement, suspension, deferment, diminution or
reduction of rent or any other sum payable by Lessee hereunder.
SECTION 3
---------
CHARGES AND UTILITIES
---------------------
(a) Lessee, at its sole expense, shall keep the Leased Premises and
the adjoining streets and ways in good and clean order and condition and will
promptly make all necessary or appropriate repairs, replacements and renewals
thereof, whether interior or exterior, structural or non-structural, ordinary
or extraordinary, foreseen or unforeseen. All repairs, replacements and renewals
shall be equal in quality and class to the original work. Lessee waives any
right created by any law now or hereafter in force to make repairs to the Leased
Premises at Lessor's expense. Lessee, at its sole expense, shall do or cause
others to do every act necessary or appropriate for the preservation and safety
of the Leased Premises whether or not the Lessor shall be required by any legal
requirement to take such action or be liable for failure to do so.
(b) If not at the time in default under this Agreement, Lessee, at its
sole expense, may make reasonable alterations of and additions to the
Improvements or any part thereof, provided that any alteration or addition (i)
shall not change the general character of the Improvements, or reduce the fair
market value
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thereof below their value immediately before such alteration or addition, or
impair their usefulness, (ii) is effected with due diligence, in a good and
workmanlike manner and in compliance with all legal requirements and insurance
requirements, (iii) is promptly and fully paid for by Lessee, (iv) is made, in
case the estimated cost of such alteration or addition exceeds Ten Thousand
Dollars ($10,000.00), under the supervision of an architect or engineer
satisfactory to Lessor and in accordance with plans, specifications and cost
estimates approved by Lessor, and (v) does not interfere with Lessor's rights of
use under this Agreement.
(c) Subject to subparagraph (d), below, relating to contests, and
except for taxes and assessments paid by the lessee under Section 8 of the lease
agreement for the Real Property dated July 1, 1981 between John Brown Schools of
California, Inc. and C. Robert Langslet & Son, Inc., Lessee shall pay all taxes,
assessments (including without limitation, all assessments for public
improvements or benefits, whether or not commenced or completed prior to the
date hereof and whether or not to be completed within the Term hereof), ground
rents, water, sewer or similar rents, rates and charges, excises, levies,
license fees, permit fees, inspection fees and other authorization fees and
other charges in each case, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including all
interest and penalties thereof), which at any time during or in respect of the
Term hereof may be assessed, levied,
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confirmed or imposed on or in respect of or be a lien upon the Leased Premises
or any part thereof or any rent therefrom or any estate, right or interest
therein, or any occupancy, use or possession of or activity conducted on the
Leased Premises or any part thereof, other than any income or excess profits tax
imposed upon the Lessor's general income or revenues, but excluding any income
or excess profits or franchise taxes of Lessor determined on the basis of
general income or revenue or any interest or penalties in respect thereof.
Lessee shall furnish to Lessor for inspection within thirty (30) days after
written request, official receipts of the appropriate taxing authority or other
proof satisfactory to Lessor evidencing such payment. If by law any such amount
may be paid in installments, Lessee shall be obligated to pay only those
installments as they become due from time to time before any interest, penalty,
fine or cost may be added thereto; and any such amount relating to the fiscal
period of the taxing authority, part of which is included within the Term and a
part of which extends beyond the Term shall, if Lessee shall not be in default
under this Agreement, be apportioned between Lessee and Lessor as of the
expiration of the Term of this Agreement.
(d) Lessee, at its sole expense, may contest, after prior written
notice to Lessor, by appropriate legal proceedings conducted in good faith and
with due diligence, the amount or validity or application, in whole or in part,
of any tax, lien or other imposition on the Leased Premises, provided that (i)
Lessee
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shall first make all contested payments, under protest if it desires, (ii)
neither the Leased Premises nor any part thereof or interest therein nor any
such rents or other sums would be in any danger of being sold, forfeited, lost
or interfered with, and (iii) Lessee shall have furnished such security, if any,
as may be required in the proceedings or reasonably requested by Lessor.
(e) Lessee shall pay or cause to be paid all charges for all public or
private utility services and all sprinkler systems and protective services at
any time rendered to or in connection with the Leased Premises 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
Leased Premises 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
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person, in any one accident or occurrence, and for loss or damage to the
property of any person or persons, for not less than One Million Dollars
($1,000,000.00); (ii) insurance with respect to the Improvements against loss or
damage by fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles, smoke and other risks from time to
time included under "extended coverage" policies, in an amount equal to at least
One Hundred Percent (100%) of the full replacement value of the Improvements
and, in any event, in an amount sufficient to prevent Lessor or Lessee from
becoming a co-insurer of any partial loss under the applicable policies, which
shall be written on a replacement cost basis; (iii) appropriate workers'
compensation or other insurance against liability arising from claims of workers
in respect of and during the period of any work on or about the Leased Premises;
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
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fifteen (15) days prior to the commencement of the Term hereof or of the date
when Lessee shall enter upon the Leased Premises, whichever occurs sooner. At
least fifteen (15) days prior to the expiration or termination date of any
policy, Lessee shall deliver a certificate of a renewal or replacement policy
with proof of the payment of the premium therefor. Any such insurance required
by this Paragraph may, at Lessee's option, be provided through a blanket policy
or policies.
(b) Lessee shall indemnify Lessor and hold Lessor harmless from and
against all claims, actions, losses, damages, liabilities and expenses
(including reasonable attorneys' fees) incurred by or asserted against Lessor,
whether during or after the Term of this Agreement, including by reason of
personal injury, loss of life, or damage to property, caused by or resulting
from in whole or any material part, (i) any breach of this Agreement by Lessee,
(ii) any negligent or intentional act or omission of Lessee, its employees,
agents, invitees or contractors, whether in, on, about or with respect to the
Leased Premises or otherwise, (iii) the use by Lessee of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessee on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessee pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessee's request or this
Agreement; provided, however, that Lessee shall not be required to indemnify
Lessor for any damages, injury, loss
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or expense arising out of Lessor's or its agents', employees', invitees' or
contractors' negligent acts or omissions.
(c) If Lessor so elects by notice to Lessee, Lessee shall have the
obligation of defending, at its sole cost and expense, by counsel selected by
Lessee and approved by Lessor (such approval not to be unreasonably withheld),
against any claim to which the foregoing indemnity may apply. Lessor may assume,
or require that such defense be assumed, by Lessor and counsel selected by
Lessor, at the cost and expense of Lessee if Lessor is for any reason
dissatisfied with the defense by Lessee, or believes that its interests would be
better served thereby. In any case where Lessee is defending any such claim,
Lessor may participate in the defense thereof by counsel selected by it, but at
Lessor's expense. Lessee shall not enter into any settlement of any claim
without the consent of Lessor, which consent shall not be unreasonably withheld.
(d) Lessor shall indemnify Lessee and hold Lessee harmless from and
against all claims, actions, losses, damages, liabilities and expenses
(including reasonable attorneys' fees) incurred by or asserted against Lessee,
whether during or after the Term of this Agreement, including by reason of
personal injury, loss of life, or damage to property, caused by or resulting
from in whole or any material part, (i) any breach of this Agreement by Lessor,
(ii) any negligent or intentional act or omission of Lessor, its employees,
agents, invitees or contractors, whether in, on, about or with respect to the
Leased
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Premises or otherwise, (iii) the use by Lessor of any part of the Leased
Premises, (iv) any work undertaken by or at the request of Lessor on or about
the Leased Premises, (v) any other activity undertaken by or at the request of
Lessor pursuant to or in connection with this Agreement, or (vi) the presence of
any individuals on the Leased Premises as a result of Lessor's request or this
Agreement; provided, however, that Lessor shall not be required to indemnify
Lessee for any damages, injury, loss or expense arising out of Lessee's or its
agents', employees', invitees' or contractors' negligent acts or omissions.
(e) If Lessee so elects by notice to Lessor, Lessor shall have the
obligation of defending, at its sole cost and expense, by counsel selected by
Lessor and approved by Lessee (such approval not to be unreasonably withheld),
against any claim to which the foregoing indemnity may apply. Lessee may assume,
or require that such defense be assumed, by Lessee and counsel selected by
Lessee, at the cost and expense of Lessor if Lessee is for any reason
dissatisfied with the defense by Lessor, or believes that its interests would be
better served thereby. In any case where Lessor is defending any such claim,
Lessee may participate in the defense thereof by counsel selected by it, but at
Lessee's expense. Lessor shall not enter into any settlement of any claim
without the consent of Lessee, which consent shall not be unreasonably withheld.
(f) Nothing in this Agreement shall be construed so as to authorize or
permit any insurer of Lessor or Lessee to be
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subrogated to any right of Lessor or Lessee against the other. Each of Lessor
and Lessee hereby releases the other to the extent of its insurance coverage for
any loss or damage caused by fire or any of the extended coverage casualties,
even if such fire or other casualty shall be brought about by the fault or
negligence of the other party or persons for whose acts said party is liable.
SECTION 5
---------
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.
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(iv) Lessor has not received written notice of pending or
contemplated condemnation proceedings affecting the Leased Premises or
any part thereof.
(v) To the best of Lessor's knowledge, there is no action,
suit or proceeding pending or threatened against or affecting the
Leased Premises or any portion thereof and Lessor has not received
notice written or otherwise of any litigation affecting or concerning
the Leased Premises relating to or arising out of its ownership,
management, use or operation. Lessor shall give to Lessee prompt notice
of institution of any such proceeding or litigation.
(vi) To the best of Lessor's knowledge, there are presently
no proceedings for overdue real estate taxes assessed against the
Leased Premises for any fiscal period.
(vii) Lessor shall promptly advise Lessee in writing of any
written notice received from any governmental authority to comply with
the terms, provisions and requirements of any local, state and federal
laws, ordinances, directives, orders, regulations and requirements
which apply to any portion of the Leased Premises or to any adjacent
street or other public area or to the maintenance, operation or use
thereof.
(viii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby,
have been duly and validly authorized by all necessary actions on the
part of Lessor (none of
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which actions have been modified or rescinded and all of which actions
are in full force and effect). This Agreement constitutes a valid and
binding agreement and obligation of Lessor, enforceable in accordance
with its terms.
(ix) Subject to liens and encumbrances of record, Lessor owns
good and marketable title in fee simple to the Real Property on which
the Leased Premises are located, and Lessor acknowledges that Lessee is
relying upon the foregoing representation and warranty in entering into
this Agreement and in expending 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
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of all of the Leased Premises, or a portion thereof such that it renders the
premises unsuitable for broadcasting, this Agreement may be terminated by
written notice from either party to the other and thereafter each of the parties
shall be relieved of any future liability to the other under this Agreement,
except as to obligations accrued and not yet discharged at the date of
termination. Following any condemnation or foreclosing order, Lessee may
continue to use the property for operations under the terms of this Agreement
until Lessee finds and begins to utilize new facilities or until prevented by
the condemning or foreclosing authority from utilizing the Leased Premises,
whichever occurs first.
(e) Lessee represents and warrants that its Installations to be located
on or about the Leased Premises, together with the existence of the equipment of
Lessor, and the operation thereof do not and will not result in exposure of
workers or the general public to levels of radio frequency radiation in excess
of the "Radio Frequency Protection Guides" recommended in "American National
Standard Safety Levels With Respect to Human Exposure to Radio Frequency
Electromagnetic Fields, 300 KHz to 100 GHz," issued by the American National
Standards Institute ("Acceptable Radio Frequency Radiation Standards") . Lessor
represents and warrants its equipment and property at the Leased Premises and
the operation thereof do not and will note exceed Acceptable Radio Frequency
Radiation Standards.
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(f) Lessee covenants that it will not at any time during the Term of
this Agreement, transmit, store, handle or dump toxic or hazardous wastes
anywhere at or around the Leased Premises.
(g) Lessee shall promptly advise Lessor in writing of any written
notice received from any governmental authority to comply with the terms,
provisions and requirements of any local, state and federal laws, ordinances,
directives, orders, regulations, and requirements which apply to any portion of
the Leased Premises or to any adjacent street or other public area or the
maintenance, operation or use thereof.
(h) Lessee represents and warrants that the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
actions on the part of Lessee (none of which actions have been modified or
rescinded and all of which actions are in full force and effect). This
Agreement constitutes a valid and binding agreement and obligation of Lessee,
enforceable in accordance with its terms.
(i) Lessee warrants unto Lessor that its broadcasting towers are and
will remain in material compliance at all times during the Term and any
Extension Term with all federal, state, county, municipal, local, administrative
and other governmental laws, statutes, ordinances, codes, rules, regulations and
orders pertaining thereto, including, without limitation, to the extent
applicable, all zoning laws and building codes and all
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regulations of the Federal Aviation Administration ("FAA") and the Federal
Communications Commission ("FCC").
(j) In case of any material damage to or destruction of the Leased
Premises or any part thereof, Lessee shall promptly give written notice thereof
to Lessor and any mortgagee, generally describing the nature and extent of such
damage or destruction. In case of any damage to or destruction of the
Improvements or any parts thereof, Lessee, whether or not the insurance
proceeds, if any, on account of such damage or destruction shall be sufficient
for the purpose, at its sole expense, shall promptly commence and complete the
restoration, replacement or rebuilding of the Improvements as nearly as possible
to their value, condition and character immediately prior to such damage or
destruction.
(k) Lessee will execute, acknowledge and deliver to the Lessor,
promptly upon request, a certificate certifying that (i) this Agreement is
unmodified and in full force and effect (or, if there have been modifications,
that the Agreement is in full force and effect, as modified, and stating the
modifications), (ii) the dates, if any, to which rent and other sums payable
hereunder have been paid, and (iii) no notice has been received by Lessee of any
default which has not been cured, except as to defaults specified in said
certificate. Any such certificate may be relied upon by any prospective
purchaser or mortgagee of the Real Property or any part thereof.
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(l) Lessor will execute, acknowledge and deliver to the Lessee or any
mortgagee, promptly upon request, a certificate certifying that (i) this
Agreement is unmodified and in full force and effect (or, if there have been
modifications, that the Agreement is in full force and effect, as modified, and
stating the modifications), (ii) the dates, if any, to which rent and other sums
payable hereunder have been paid, and (iii) whether or not, to the knowledge of
Lessor, there are then existing any defaults under this Agreement (and if so,
specifying the same). Any such certificate may be relied upon by any
prospective purchaser transferee or mortgagee of Lessee's interest under this
Agreement.
SECTION 6
---------
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,
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provided, however, that if the nature of Lessee's default is such that
more than thirty (30) days is required for its cure, then Lessee shall
not be deemed to be in default if Lessee has commenced such cure within
the thirty (30) day period, demonstrates to Lessor's reasonable
satisfaction that such default is curable and thereafter diligently
prosecutes such cure to completion; or
(iii) Lessee is finally and without further right of appeal or
review, adjudicated a bankrupt or insolvent, or has a receiver
appointed for all or substantially all of its business or assets on the
ground of its insolvency, or has a trustee appointed for it after a
petition has been filed for Lessee's reorganization under the
Bankruptcy Act of the United States, or any future law of the United
States having the same general purpose, or if Lessee shall make an
assignment for the benefit of its creditors, or if Lessee's interest
hereunder shall be levied upon or attached, which levy or attachment
shall not be removed within twenty (20) days from the date thereof.
(b) If an event of default on the part of Lessee shall occur at any
time, Lessor, at its election, may give Lessee a notice of termination
specifying a day not less than thirty (30) days thereafter on which the Term of
this Agreement shall end, unless such default shall be cured within said period,
or, if the default is such that more than thirty (30) days is required for its
cure, unless Lessee has commenced such cure within said
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period. If such notice is given, the Agreement shall expire on the day so
specified as fully and completely as if that day were the day herein originally
fixed for such expiration, and Lessee shall then quit and surrender the Leased
Premises to Lessor, but Lessee shall remain liable for the payment of rent
during the full period which would otherwise constitute the balance of the Term
of this Agreement; and without prejudice to any other right or remedy which it
may have hereunder or by law, and notwithstanding any waiver of any prior breach
of condition or event of default hereunder, Lessor may re-enter the Leased
Premises either by reasonable force or otherwise, or dispossess Lessee, any
legal representative of Lessee or other occupant of the Leased Premises by
appropriate suit, action or proceeding and remove its effects and hold the
Leased Premises as if this Agreement had not been made.
(c) The failure of Lessor to cure any default under the terms hereof,
and continuation of such failure to cure for more than thirty (30) days after
notice by Lessee, shall constitute a default on the part of Lessor; provided,
however, that if the nature of Lessor's default is such that more than thirty
(30) days is required for its cure, then Lessor shall not be deemed to be in
default if Lessor has commenced such cure within the thirty (30) day period,
demonstrates to Lessee's reasonable satisfaction that such default is curable
and thereafter diligently prosecutes such cure to completion.
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(d) If an event of default on the part of Lessor shall occur at any
time, Lessee, at its election, may give Lessor a notice of termination
specifying a day not less than thirty (30) days thereafter on which the Term of
this Agreement shall end, unless such default shall be cured within said period,
or, if the default is such that more than thirty (30) days is required for its
cure, unless Lessor has commenced such cure within said period. If such notice
is given, the Agreement shall expire on the day so specified as fully and
completely as if that day were the day herein originally fixed for such
expiration, and Lessee shall then quit and surrender the Leased Premises to
Lessor, and Lessee shall not be liable for payment of rent for any period after
such expiration.
SECTION 7
---------
ASSIGNMENT
----------
Lessee shall not assign this Agreement nor sublet any portion of the
Leased Premises without the prior written consent of the Lessor, which consent
shall not be unreasonably withheld. Notwithstanding any assignment or sublease,
Lessee shall remain primarily liable under this Agreement.
SECTION 8
---------
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
--------------------------------------------
This Agreement shall not be a lien against the Leased Premises in
respect to any Mortgages and Security Agreements placed or hereafter to be
placed by Lessor upon the Leased Premises. The recording of such Mortgages and
Security
-24-
Agreements shall have preference and precedence and be superior and prior in
lien to this Agreement, irrespective of the date of recording, and Lessee agrees
to execute any instruments, without cost, which may be deemed necessary or
desirable to further effect the subordination of this Agreement. Lessor shall
make a reasonable effort to obtain from any mortgagees or lenders holding an
interest in the nature of a mortgage in the Leased Premises an agreement that
the mortgagee or lender shall not disturb Lessee's quiet possession in the event
of foreclosure. If any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
the Lessor encumbering the Leased Premises, Lessee shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Lessor
under this Lease.
SECTION 9
---------
NON-LIABILITY OF LESSOR
-----------------------
Lessor shall not be liable for any damages or injury which may be
sustained by Lessee or any other person by reason of the failure, breakage,
leakage or obstruction of the water, sewer, plumbing, roof, drains, leaders,
electrical, air conditioning or any other equipment; or by reason of the
elements; or resulting from the carelessness, negligence or improper conduct of
Lessee, its agents, employees, contractors, invitees, assignees or successors;
or attributable to any interference with or the interruption of or failure of
any services, beyond the control of Lessor, to be supplied by Lessor.
-25-
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 Leased Premises to inspect the same, to supply any service to be provided by
Lessor to Lessee hereunder, and to show the Leased Premises to prospective
purchasers, mortgagees, or lessees, to post notices of non-responsibility,
without abatement of rent, provided entrance to the Leased Premises shall not be
denied Lessee.
SECTION 11
----------
USE OF LEASED PREMISES BY LESSOR
--------------------------------
At all times during the Term of this Agreement Lessor shall have the
exclusive right to place and operate, or to permit another tenant to place and
operate, broadcasting equipment on the Leased Premises and on the Lessee's
broadcasting towers, or to use the Leased Premises for any other lawful purpose,
provided, such actions do not interfere with Lessee's operations. Lessor shall
have no obligation to pay rent for the uses described above. 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
Leased Premises.
-26-
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 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.
-27-
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 towers located on the Land), to Lessor in
good order and condition, reasonable wear and tear excepted. Any equipment,
fixtures, goods or other property of Lessee not removed within ten (10) days
after any quitting, vacating or abandonment of the Leased Premises, or upon
Lessee's eviction therefrom, shall be considered abandoned, and Lessor shall
have the right, without notice to Lessee, to sell or otherwise dispose of same
without having to account to Lessee for any part of the proceeds of such sale.
SECTION 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.
-28-
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 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:
SALEM MEDIA OF CALIFORNIA, INC.
/s/ Edward G. Atsinger III By: /s/ Edward G. Atsinger III
- ----------------------------- -----------------------------
EDWARD G. ATSINGER III EDWARD G. ATSINGER III
President
/s/ Stuart W. Epperson
- -----------------------------
STUART W. EPPERSON
-29-
EXHIBIT A
---------
PARCEL 2, IN THE CITY OF PARAMOUNT, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON PARCEL MAP NO. 13658 FILED IN BOOK 137 PAGE 95 OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT B
---------
LEGAL DESCRIPTION
FOR
RADIO STATION TOWER GUY WIRES AND ANCHORS
EASEMENTS FOR GUY WIRES AND ANCHORS IN THE CITY OF PARAMOUNT, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL `A':
A 5.00 FOOT WIDE EASEMENT WITHIN PARCEL 3 OF PARCEL MAP NO. 16925, AS SHOWN ON A
MAP FILED IN BOOK 187, PAGES 74 THROUGH 76, INCLUSIVE OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT IN THE EASTERLY BOUNDARY OF SAID PARCEL 3, SAID POINT BEING
THE NORTHERLY TERMINUS OF THAT CERTAIN COURSE IN SAID EASTERLY BOUNDARY SHOWN AS
"N 3(degrees) 16' 51" W 122.07 FEET" ON SAID MAP; THENCE S 3(degrees) 16' 51" E
15.31 FEET ALONG SAID BOUNDARY TO THE TRUE POINT OF BEGINNING; THENCE LEAVING
SAID EASTERLY BOUNDARY AND THROUGH A PORTION OF SAID PARCEL 3 S 68(degrees) 25;
58" W 92.87 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT `A'.
PARCEL `B':
AN EASEMENT WITHIN PARCEL 3 OF PARCEL MAP NO. 16925, AS DESCRIBED IN PARCEL `A'
HEREON, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT POINT `A' AS DESCRIBED IN PARCEL `A' HEREON; THENCE N 84(degrees)
34' 48" W 5.00 FEET; THENCE N 5(degrees) 25' 12" E 5.00 FEET TO THE TRUE POINT
OF BEGINNING; THENCE S 84(degrees) 34' 48" E 10.00 FEET; THENCE S 5(degrees) 25'
12" W 10.00 FEET; THENCE N 84(degrees) 34' 48" W 10.00 FEET; THENCE N
5(degrees) 25' 12" E 10.00 FEET TO THE TRUE POINT OF BEGINNING.
THE SIDELINES OF SAID PARCELS `A' AND `B' SHALL BE PROLONGED OR FORESHORTENED SO
AS TO TERMINATE AT SAID DESCRIBED BOUNDARIES AND/ OR INTERSECT WITH NO OVERLAP.
CERTIFICATE OF UNANIMOUS CONSENT
OF
SALEM MEDIA OF CALIFORNIA, INC.
The undersigned, being all of the members of the Board of Directors of
Salem Media of California, Inc. a California corporation ("Corporation"), do
hereby consent to and adopt the following resolutions:
RESOLVED that the Corporation is hereby authorized and
directed to sell the real estate owned by it and located at Long Beach,
California to Edward G. Atsinger II and Stuart W. Epperson for the
amount of $625,000, such amount to be paid in the form of cash in the
amount of $588,903.94 and a Promissory Note in the amount of
$36,096.06, such Promissory Note to be in the form and with the terms
and conditions set forth in the Promissory Note attached hereto and
incorporated herein by reference; and
RESOLVED that the Corporation is hereby authorized and
directed to sell the real estate owned by it and located at Paramount
California to Edward G. Atsinger II and Stuart W. Epperson for the
amount of $1,150,000, such amount to be paid in cash; and
RESOLVED that the Corporation is hereby authorized and
directed to lease said real estate from Edward G. Atsinger II and
Stuart W. Epperson pursuant to the terms of leases in the form of and
with the terms and conditions set forth in the Lease Agreements
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 February, 1992.
/s/ Stuart W. Epperson
-------------------------------
Stuart W. Epperson
/s/ Edward G. Atsinger III
-------------------------------
Edward G. Atsinger III