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EXHIBIT 10.11
SITE AGREEMENT
SITE NAME HUB D SITE I.D.
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SITE ADDRESS XXX 0, XXXXXXXXXX XXXXX, XXXXXXXXXXX
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COMMERCIAL PLAT-1, LYING IN THE XX 0/0 XX XXXXXXX 00,
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X00X, X00X, XXXXXXXXXX XXXXXX, XX.
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1. PREMISES AND USE. Owner leases to Montgomery Cablevision and
Entertainment, Inc. ("Cablevision"), the site ("Site") described below:
[Check appropriate box(es)]
/X/ Real property consisting of approximately 400 square feet of land;
/ / Building interior space consisting of approximately _____ square feet;
/ / Building exterior space for attachment of antennas;
/ / Building exterior space for placement of base station equipment;
/ / Tower antenna space;
/ / Space required for cable runs to connect equipment and antennas, in the
location(s) ("Site") shown on Exhibit A;
together with a non-exclusive easement for reasonable access thereto and to the
appropriate, in the discretion of Cablevision, source of electric, gas and
telephone facilities. (Without limiting the forgoing, and if provided for by
exhibit to this agreement, the Owner also provides a non-exclusive easement for
access and connection to Owner's emergency power generator at the Site to be
used by Cablevision in the case of a power outage.)
Cablevision is leasing the property for the purpose of installing, removing,
replacing, maintaining and operating, at its expense, a fiber optics cable
system facility, or other signal transmission device or technology, including,
without limitation, related antenna equipment and fixtures, underground or
aerial cables, pole placements or attachments. Owner represents that the
proposed use of this Site by Cablevision will not violate any exclusive or other
agreement which Owner may have given or to which Owner is a party.
2. TERM. The term of this Agreement (the "Initial Term") shall commence on
the date Cablevision signs this Agreement, or if Cablevision signs first, the
date Owner signs this Agreement. The Initial Term shall be the period of time
from that date to the 5th anniversary of the Rent Start Date. This Agreement
will be automatically renewed for three additional terms (each a "Renewal Term")
of five years each commencing on each five year anniversary of the Rent Start
Date, unless Cablevision provides Owner notice of intention not to renew not
less than 90 days prior to the expiration of the Initial Term or any Renewal
Term.
3. RENT. Rent will commence on the Rent Start Date. Rent will be paid
annually in advance beginning on the Rent Start Date and on each anniversary of
it. The Rent Start Date shall be the earlier of (a) the date which is thirty
(30) days after the issuance of a building permit for installation of the
facilities, or (b) the first day of the month following commencement of physical
preparation of the Site. The annual rent will be $3,600.00. The annual rent for
each Renewal Term will be the annual rent in effect for the final year of the
Initial Term or prior Renewal Term, as the case may be, increased by ten percent
(10%). Cablevision will also provide expanded basic cable service, whenever
premises becomes a serviceable address, to current tenant of Owner on a
commercial account for so long as said tenant remains in possession. Owner shall
pay Xxxx X. Xxxxxxx, Xx., a 10% commission per month during the term of the
lease, inclusive of renewals and extensions.
4. TITLE AND QUIET POSSESSION. Owner represents and agrees (a) that it is the
Owner of the Site; (b) that it has the right to enter into this Agreement; (c)
that the person signing this Agreement has the authority to sign; (d) that
Cablevision is entitled to access to the Site at all times and to the quiet
possession of the Site throughout the Initial Term and each Renewal Term so long
as Cablevision is not in default beyond the expiration of any cure period; and
(e) that Owner shall not have, or allow others to have, unsupervised access to
the Site or to the equipment.
5. ASSIGNMENT/SUBLETTING. Cablevision will not assign or transfer this
Agreement without the prior written consent of Owner, which consent will not be
unreasonably withheld, delayed or conditioned; provided, however, Cablevision
may assign without Owner's prior written consent to: (1) any party controlling,
controlled by or under common control with Cablevision; or (2) any party which
acquires rights to Cablevision's FCC operating licenses or franchises or
substantially all of the assets of Cablevision; or (3) a financial institution
for purposes of securing indebtedness related to Cablevision's communications
system. Cablevision may sublet the Site but shall remain fully liable to Owner
under this Agreement.
6. NOTICES. All notices must be in writing and are effective when
deposited in the U.S. mail, certified and postage prepaid, or when sent via
overnight delivery, to the address set forth below, or as otherwise provided by
law.
7. IMPROVEMENTS. Cablevision may, at its expense, make such improvements on
the Site as it deems necessary from time to time for the operation of a node
site for its fiber optic cable system. Owner agrees to cooperate with
Cablevision with respect to obtaining any required easements, variances, zoning
approvals and other authorizations for the Site and such improvements. Upon
termination or expiration of this Agreement, Cablevision will remove all
improvements to the property on the surface and down to three feet below the
surface, except for ordinary wear and tear. Upon request, Owner will waive or
otherwise subordinate any lien rights it might have in order to facilitate
Cablevision's financing of the said improvements and will execute such documents
as may be reasonably necessary so to do.
8. COMPLIANCE WITH LAWS. Owner represents that Owner's property (including
the Site), and all improvements located
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thereon, are in substantial compliance with building, life/safety, disability
and other laws, codes and regulations of applicable governmental authorities.
Cablevision will substantially comply with all applicable laws relating to its
possession and use of the Site.
9. INTERFERENCE. Cablevision will resolve technical interference problems
with other equipment located at the Site on the commencement of this Agreement
or any equipment that becomes attached to the Site at any future date when
Cablevision desires to add additional equipment to the Site. Likewise, Owner
will not permit the installation of any future equipment, upgrades or
enhancements by others which results in technical interference problems with
Cablevision's then existing equipment.
10. UTILITIES. Owner represents that utilities adequate for Cablevision's use
of the Site are available. Cablevision will pay for all utilities used by it at
the Site. Owner will cooperate with Cablevision in Cablevision's efforts to
obtain utilities for the Site.
11. TERMINATION. Cablevision may terminate this Agreement at any time by
notice to Owner without further liability, if Cablevision does not obtain all
permits or other approvals (collectively, "approval") required from any
governmental authority or any easements required from any third party to operate
its system, or if any such approval is canceled, expires or is withdrawn or
terminated, or if Owner fails to have proper ownership of, or appropriately
clear title to the Site or authority to enter in this Agreement. Owner will
cooperate with Cablevision in obtaining any necessary approval. Upon
termination, all prepaid rent shall be retained by Owner, however Cablevision
will be relieved of all other obligations under the lease.
12. DEFAULT. If either party is in default under this Agreement for a period
of (a) ten (10) days following receipt of notice from the non-defaulting party
with respect to a default which may be cured solely by the payment of money, or
(b) thirty (30) days following receipt of notice from the non-defaulting party
with respect to a default which may not be cured solely by the payment of money,
then, in either event, the non-defaulting party may pursue any remedies
available to it against the defaulting party under applicable law, including,
but not limited to, the right to terminate this Agreement. If the non-monetary
default may not reasonably be cured within a thirty (30) day period, this
Agreement may not be terminated if the defaulting party commences action to cure
the default within such thirty (30) day period and proceeds with due diligence
to fully cure the default.
13. INDEMNITY. Owner and Cablevision each indemnifies the other against and
holds the other harmless from any and all costs (including reasonable attorneys
fees) and claims of liability or loss which arise out of the use and/or
occupancy of the Site by the indemnifying party. This indemnity does not apply
to any claims arising from the sole negligence or intentional misconduct of the
Indemnified party.
14. HAZARDOUS SUBSTANCES. Owner represents that it has no knowledge of any
substance, chemical or waste (collectively, "substance") on the Site that is
identified as hazardous, toxic or dangerous in any applicable federal, state or
local law or regulation. Cablevision shall not introduce or use any such
substances on the Site in violation of any applicable law.
15. MISCELLANEOUS. (a) This Agreement applies to and binds the heirs,
successors, executors, administrators and assigns of the parties to this
Agreement; (b) This Agreement is governed by the laws of the State in which the
Site is located; (c) Owner agrees promptly to execute and deliver to Cablevision
a recordable Memorandum of this Agreement in the form of Exhibit B; (d) This
Agreement (including the Exhibits) constitutes the entire Agreement between the
parties and supersedes all prior written and verbal agreements, representations,
promises or understandings between the parties. Any amendments to this Agreement
must be in writing and executed by both parties; (e) If any provision of this
Agreement is invalid or unenforceable with respect to any party, the remainder
of this Agreement or the application of such provision to persons other than
those as to whom it is held invalid or unenforceable, will not be affected and
each provision of this Agreement will be valid and enforceable to the fullest
extent permitted by law; and (f) The prevailing party in any action or
proceeding in court or mutually agreed upon arbitration proceeding to enforce
the terms of this Agreement is entitled to receive its reasonable attorneys'
fees and other reasonable enforcement costs and expenses from the non-prevailing
party.
The following Exhibits are attached to and made a part of this
Agreement: Exhibit A, B, & C.
OWNER: XXXX XXXXXX XXXXXXX
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By: /s/ Xxxx Xxxxxx Xxxxxxx
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Its: Owner
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S.S./Tax No.: ###-##-####
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Address: X.X. Xxx 0000 Xxx. XX 00000
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Date: 11/19/96
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MONTGOMERY CABLEVISION AND ENTERTAINMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Its: Chief Financial Officer
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Address: 0000 Xxx Xxxxxx, Xxxxxxxxxx, XX 00000.
Witness: /s/ Xxxxxx X. Xxxxxx
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Witness: /s/ [ILLEGIBLE SIGNATURE]
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THIS DOCUMENT PREPARED BY: XXXX X. XXXXXXXXX, XXXXXXXX & XXXXXXXXX, P.C., X.X.
XXX 000, XXXXXXXXXX, XX. 00000-0000, (000) 000-0000.
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THE STATE OF ALABAMA )
)
___________ COUNTY )
I, XXXXX XXXXXXXX, a AT LARGE in and for said County in said State,
hereby certify that XXXXX XXXXXXXX, XX., whose name as Chief Fin Officer of
Montgomery Cablevision and Entertainment, Inc., an Alabama Corporation, is
signed to the foregoing conveyance and who is known to me, acknowledged before
me on this day that, being informed of the contents of the conveyance, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said Corporation.
Given under my hand this the 25th day of October, 1996.
(AFFIX NOTARIAL SEAL) /s/ Xxxxx Xxxxxxxx
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NOTARY PUBLIC
My Commission Expires:
My Commission Expires Jan. 4, 1997
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Alabama...Cablevision
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THE STATE OF AL )
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Montgomery COUNTY )
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I, Xxxx X. Xxxxxxx, Xx., a notary hereby certify that Xxxx Xxxxxxx
Xx., whose name is signed to the foregoing conveyance, and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
conveyance, he executed the same voluntarily on the day the same bears date.
Given under my hand this 19 day of Nov, A.D. 1996.
(AFFIX NOTARIAL SEAL) /s/ Xxxx X. Xxxxxxx Xx.
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NOTARY PUBLIC
My Commission Expires:
11/97
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Alabama...Use if Owner is Individual
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EXHIBIT A
Site Name: HUB D Site Agreement Site I.D.:________.
Site Description
Site situated in the City of: Xxxxxxxxxx County of: Montgomery
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State of: Alabama
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commonly described as:
Xxx 0, Xxxxxxxxxx Xxxxx, as shown in Stonebridge Commercial Plat-1,
lying in the SE 1/4 of the Xxxxxxx 00, X00X, X00X, Xxxxxxxxxx Xxxxxx, XX
Sketch of Site:
Owners Initials /s/ JWS
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Cablevision's Initials /s/ FLB
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Note: Owner and Cablevision may, at Cablevision's option, replace this Exhibit
with an exhibit setting forth the legal description of the property on which the
Site is located and/or an as-built drawing depicting the Site.
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This instrument prepared by:
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxxx, P.C.
000 Xxxxx Xxxx Xxxxxx
Post Office Xxx 000
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000
PLEASE RETURN THIS INSTRUMENT TO THE ABOVE ADDRESS
Do not write above this line - this space reserved for recording purposes
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EXHIBIT B
Site Name: HUB D Site I.D.:_______.
SITE AGREEMENT
SHORT FORM LEASE AND MEMORANDUM OF AGREEMENT
This memorandum evidences that a lease was made and entered into by written Site
Agreement dated 11/19, 1996, between Xxxx Xxxxxx Xxxxxxx ("Owner"), whose
address is X.X. Xxx 0000 Xxx. XX 00000 and Montgomery Cablevision and
Entertainment, Inc. ("Cablevision"), whose address is 0000 Xxx Xxxxxx,
Xxxxxxxxxx, XX 00000, the terms and conditions of which are incorporated herein
by reference.
Such Agreement provides in part that Owner leases to Cablevision a certain site
located at Xxx 0, Xxxxxxxxxx Xxxxx in Stonebridge Commercial Plat-1, City of
Xxxxxxxxxx, County of Xxxxxxxxxx, State of Alabama within the property of
Owner which is described in Exhibit "A" attached hereto, with grant of easement
for unrestricted rights of access thereto and to electric and telephone
facilities for a term of five (5) years commencing on 11/19, 1996, which term
is subject to three (3) additional five (5) year periods by Cablevision.
Not later than thirty (30) days following the cancellation, termination or
expiration of the Agreement, Cablevision will make, execute and deliver to owner
an instrument, in form, releasing this memorandum of Site Agreement.
IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and
year first above written. Signed, sealed and delivered in the presence of:
OWNER: Xxxx Xxxxxx Xxxxxxx
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By: /s/ Xxxx Xxxxxx Xxxxxxx
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Its: Owner
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S.S./Tax No.: ###-##-####
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Address: X.X. Xxx 0000
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Xxxxxxxxxx, XX 00000
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Date: 11/19/96
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MONTGOMERY CABLEVISION AND ENTERTAINMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxx Xx.
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Its: Chief Financial Officer
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Address: 0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000.
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EXHIBIT C
Site Name: HUB D SITE AGREEMENT Site I.D.:_____.
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SUBORDINATION AND NON-DISTURBANCE
The foregoing Agreement is subordinate to any mortgage or deed of trust now of
record against the Site. However, promptly after the Agreement is fully
executed, Owner will request the holder of any such mortgage or deed of trust to
execute a non-disturbance agreement, and Owner will cooperate with Montgomery
Cablevision and Entertainment, Inc., ("Montgomery Cablevision"), its successor
and assigns, toward such end to the extent that such cooperation does not cause
Owner additional financial liability or administrative expense.
THE OBTAINING OF A NON-DISTURBANCE AGREEMENT IS A MATERIAL INDUCEMENT TO
MONTGOMERY CABLEVISION MAKING, EXECUTING AND DELIVERING THIS AGREEMENT.
CONSEQUENTLY, IF OWNER IS UNABLE TO OBTAIN FROM THE HOLDER OF ANY SUCH MORTGAGE
OR DEED OF TRUST A NON-DISTURBANCE AGREEMENT ON OR BEFORE THE EARLIER OF (i) 90
DAYS AFTER OWNER EXECUTES THIS AGREEMENT OR (ii) THE ISSUANCE OF THE BUILDING
PERMIT FOR INSTALLATION OF THE CABLE OR (iii) UNLESS OTHERWISE SPECIFIED IN
WRITING BY MONTGOMERY CABLEVISION, MONTGOMERY CABLEVISION MAY TERMINATE THIS
AGREEMENT BY NOTICE TO OWNER WITHOUT FURTHER LIABILITY.
Owners Initials /s/ JWS
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Cablevision's Initials /s/ FLB
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Addendum to lease agreement, between Xxxx Xxxxxx Xxxxxxx, Leassor, and
Montgomery CableVision & Entertainment, Inc. Leasee, made on the 19th day of
November, 1996, for property located at Xxx 0, Xxxxxxxxxx Xxxxx, Xxxxxxxxxxx
Xxxxxxxxxx Xxxx-0, lying in the XX 0/0 xx Xxxxxxx 00, X00X, X00X, Xxxxxxxxxx
Xxxxxx, Xx.
A 10 foot utility easement shall hereby be granted by leassor to leasee along
property lines as noted on Xxxxxx & Xxxxxx plat referencing above described
property.
By: /s/ Xxxx Xxxxxx Xxxxxxx
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Its: Owner
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Date: 11/19/96
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MONTGOMERY CABLEVISION and ENTERTAINMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxx Xx.
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Its: CFO
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Address: 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xx. 00000
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Witness: /s/ [ILLEGIBLE SIGNATURE]
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Witness: /s/
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Notary Public:
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