VISIONCOMM, INC.
RIGHT OF ENTRY AGREEMENT
This Agreement ("Agreement") is entered into on August 28, 2000, by and
between VisionComm Inc., a Delaware Corporation ("OPERATOR") and Tulsa Galleria,
L.P., a Colorado limited partnership ("OWNER").
1. EXCLUSIVE RIGHT. OWNER owns the multi-family residential complex commonly
known as THE GALLERIA APARTMENTS, 10111 So. Sheridan, Xxxxx, Xxxxxxxx
00000, legally described in Exhibit H attached hereto ("Property"), which
consists of 11 Building(s) containing 236 UNITS ("Units"). OWNER hereby
grants OPERATOR the sole and exclusive right and easement to install, own,
replace and maintain a System on, off and through the Property, but
expressly not including telephone, telecommunications, Internet and data
transmissions through telephone lines. The term "System" as used in this
Agreement means antennae, leads, wires, cables, receivers, amplifiers,
decoders and/or other electronic devices used to receive and distribute
broadband communications signals which provide video and/or audio
entertainment and information. In consideration of the substantial
investment made and to be made by OPERATOR in the System, OWNER agrees
that, except for telecommunications services provided to the Property
through telephone lines, it will (a) not grant access to the Property or
any part thereof to any person or entity other than OPERATOR, or permit the
Installation on the Property of any equipment, cable or other material by
any person or entity other than OPERATOR, or the use by any person or
entity other than OPERATOR of any equipment, cable or other material
already existing on the Property, to provide television signal service or
other distribution of audio or video equipment or information to the
Property or any tenant therein and (b) to the extent permitted by
applicable law, OWNER shall use reasonable efforts to prohibit tenants of
the Property from using or occupying any portion of the Property other than
the Unit occupied by such tenants for the purpose of receiving similar
signals; provided, however, if a tenant at the Property installs a digital
satellite dish or other personal receiving device within the confines of
his/her Unit for personal use without the consent of OWNER, the failure of
OWNER to evict or take other legal action against such Tenant shall not
constitute a default or violation by OWNER of this Agreement; and further
provided, that OWNER shall not be in default or violation of this
Agreement, and shall not be required to evict or take any other legal
action against any Tenant who has installed a digital satellite dish at the
Property (whether or not such dish is within the confines of such Tenant's
Unit) on or before the date hereof.
2. ALLOCATION OF RESPONSIBILITY. Within fifteen (15) days following the
execution and delivery of the Agreement by both parties, OPERATOR shall
commence the construction of a closed loop cable system which will utilize
the most current technology available to the OPERATOR for multiple dwelling
unit properties. The closed loop System shall be completed and fully
operational on or before thirty (30) days following the commencement of the
construction of the closed loop system. At all times following the date the
OPERATOR takes over operation of the existing System, including during the
construction of the new System, OPERATOR shall make all
reasonable efforts to maintain Service (defined below) to the tenants of
the Property. Subject to provisions of Section 7 of this Agreement,
OPERATOR will bear all expense to install, maintain and repair the System.
The System shall be installed, maintained, and repaired by the OPERATOR in
a professional, workmanlike manner, with special consideration to
maintaining the aesthetic appearance of the Property. OWNER shall be
responsible for damage caused to the System by OWNER or OWNER's agent(s)
and employees. Routine service calls will be scheduled by OPERATOR two
times per week according to Subscriber's needs. Major service outages will
be responded to within 24 hours and corrected within 96 hours. OPERATOR
shall maintain a local service representative and a local point of contact
for the Property. OPERATOR will provide programming, service and pricing
comparable to the programming service and pricing provided by the local
cable franchise operator. OPERATOR shall carry, maintain, and provide OWNER
evidence of, general liability and property insurance in amounts and with
carriers reasonably acceptable to OWNER, and OPERATOR shall name OWNER, and
OWNER's lender (if requested by OWNER), as additional insured on such
policies covering personal injury and property damage that may be caused to
person(s), the Property or its contents by the System or OPERATOR or its
agent(s), employees, contractors or subcontractors. OWNER shall be
responsible for damage to the System caused by OWNER or OWNER's agent(s),
employees, contractors, subcontractors, or tenants.
3. OWNERSHIP AND REMOVAL OF SYSTEM. The System, regardless of how attached or
installed, shall at all times be and remain the sole property of OPERATOR,
its successors and/or assigns, including its Lender. OWNER acknowledges
that it has no rights of ownership in any portion of this System. Upon
termination of this Agreement, OPERATOR shall have ninety (90) days
following termination, to enter upon the Property and to dismantle and
remove any and all headend and distribution equipment. OPERATOR agrees that
all wiring attached to buildings and running between the buildings will be
left in place and owned by the OWNER. OPERATOR shall reasonably restore any
portion of the Property damaged by such removal. Any headend or
distribution equipment which remains after ninety (90) days following
termination shall become the property of the OWNER.
4. VIEWERS. OPERATOR shall operate the System to provide television signal
distribution service ("Service") to Property occupants/tenants ("Viewers").
OPERATOR agrees to provide to OWNER a "Bulk" Cable Service under the terms
and conditions stated in Attachment "C" attached hereto. Viewers shall be
given the option to subscribe to Service. Viewers electing to subscribe
will be charged and billed individually for connection to the System and
monthly service feel, at standard rates established by the OPERATOR from
time to time.
5. EASEMENT: ACCESS TO PROPERTY. Owner grants to OPERATOR an exclusive
easement and license to use and occupy all areas of the Property (excluding
the interior units of the buildings of the Property) for the purpose of
receiving signals and distributing them to occupants of the Property and to
other properties. OWNER shall provide to OPERATOR during the term of this
Agreement suitable and space reasonably required by OPERATOR to house,
operate and maintain its head-end equipment, including
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satellite receivers, antennae and amplifiers. The location of space(s)
shall be as OWNER and OPERATOR shall reasonably agree, subject to technical
and regulatory requirements. OWNER shall cooperate with the OPERATOR in the
initial location of the signal receiving equipment and in making any
subsequent modifications to the Property and maintaining landscaping to
assure an unobstructed line-of-sight. OWNER shall provide necessary
electricity for the operation and maintenance of the SYSTEM. OWNER shall
also provide to OPERATOR and its agents and employees during the term of
this Agreement access to all areas of the Property reasonably approved by
OWNER for installation, maintenance, sales, marketing, connection and
disconnection of the System and Service subject to rights of tenants.
6. TERM: SUCCESSORS. This Agreement shall remain in full force and effect for
10 years from the date OPERATOR commences to provide Service hereunder. The
benefits, obligations and grant of rights in this Agreement shall run with
the Property and shall inure to and be binding upon the successors and
assigns of the parties.
7. TERMINATION. OPERATOR may terminate the Agreement upon sixty (60) days
prior written notice to OWNER if it is unable to operate the System due to
any governmental law, rule or regulation or other reason beyond its
control. A party shall be in default if it fails to meet any material
obligation set forth in this Agreement, and does not correct such failure
within a reasonable period of time after receiving written notice from the
other party that the failure constitutes a breach of this Agreement and
that unless the breach is corrected this Agreement will be terminated;
provided, however, the OPERATOR shall have only thirty (30) days to cure
any default with respect to its failure to provide timely maintenance and
service in accordance with Section 2 above. In the event of such a default,
this Agreement may be terminated by the other party by giving written
notice of termination to the defaulting party.
8. INDEMNIFICATION. OPERATOR shall indemnify and hold harmless OWNER, its
partners, agents, directors, members, managers, officers and/or employees
from and against any and all liabilities, suits, judgments, costs and
expenses including without limitation costs of defense and reasonable
attorneys' fees, arising from OPERATOR's ownership and operation of the
System, including, without limitation, the provision of cable TV services
under this Agreement to OWNER's tenants, a violation of this Agreement by
OPERATOR or any of its agents or employees, any injury to, death of, any
person or persons or damage to property as a result of any act or omission
of OPERATOR, its employees, representatives, agents and subcontractors.
Similarly, OWNER shall indemnify and hold harmless OPERATOR, its authorized
employees, representatives, agents and subcontractors from and against any
liability, suit, judgment, cost and/or expense, including without
limitation costs of defense and reasonable attorneys' fees arising from a
violation of this Agreement by OWNER, or from any injury to, or death of
any person or persons or damage to Property resulting from any negligent
act or omission of OWNER, its partners, agents, employees or
subcontractors.
9. TECHNOLOGY. The technology and equipment used for operation of the System
will be in accordance with accepted industry standards as determined by
OPERATOR. The technical quality of Service provided by OPERATOR shall be
reasonable in relation to
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the state-of-the-art of transmission and receiving of satellite-transmitted
Service existing from time to time.
10. MARKETING. OPERATOR will provide OWNER with programming guides and/or
marketing that OPERATOR, in its sole discretion, deems appropriate. OWNER
shall assist and cooperate with OPERATOR's marketing program for the
System, including, but not limited to, providing notification of move-in
and move-out by Viewers to enable OPERATOR to make timely connects and
disconnects of Service.
11. ASSIGNMENT. OPERATOR may assign and/or grant a security interest in its
rights under this Agreement and in the System to any person or entity,
including any entity making a loan to OPERATOR ("Lender"). If OPERATOR
gives OWNER written notice of the name and address of its Lender, OWNER
agrees to afford Lender a reasonable opportunity to cure any default by
OPERATOR prior to exercising remedies for such a default. OWNER agrees to
permit Lender to substitute another operator reasonably acceptable to
OWNER, pursuant to this Agreement, or pursuant to a substitute agreement
with identical terms in the event of the OPERATOR's dissolution, bankruptcy
or insolvency results in the termination or rejection of this Agreement or
in the practical inability of OPERATOR to perform its obligations
hereunder. This Agreement is made for the third party benefit of Lender.
Upon the reasonable request of OPERATOR or Lender, OWNER will execute
further confirmation, consents, waivers or other documents consistent with
the terms hereof. OPERATOR (or its Lender) may enter into an agreement
pursuant to which OPERATOR and/or a third party will manage the System.
12. TITLE WARRANTY. OWNER warrants OWNER holds equitable and record title to
Property and has full power to grant to Operator the exclusive rights and
easements as provided herein. No party holds any interest with respect to
the Property which conflicts with any rights or interest purported to be
granted to OPERATOR hereunder. OWNER DOES NOT warrant that OWNER has title
to all interior and exterior cable located on the Property and if the
existing cable provider makes a claim to ownership of such wiring, the
parties agree that they will renegotiate the terms of this Agreement.
13. APPLICABLE LAW. This Agreement shall be governed by the internal laws of
the state in which the Property is located.
14. ATTORNEY'S FEES. In the event of litigation between OPERATOR and OWNER to
enforce or interpret the terms of this Agreement, the prevailing party
shall, in addition to any other relief, be entitled to recover its
reasonable attorneys' fees and costs incurred.
15. NOTICES. All notices, claims, certificates, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed to the addresses set forth
below the signature to this Agreement or other such addresses as the party
to whom this notice is to be given may have previously furnished in writing
to the other pursuant to this Section.
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16. FORCED ACCESS. OWNER hereby assigns to OPERATOR during the term of the
Agreement (i) any and all rights to receive compensation under any
government law or regulation, now existing or arising hereafter, as a
result of the right of access given pursuant to any government law or
regulation to any person or entity for the purpose of providing television
signal service to the Property or any tenant therein and (ii) any and all
rights which OWNER may have under any government law or regulation to
contest, judicially or otherwise, the purported right of any person or
entity to gain access to the Property for the purpose of providing
television signal service to the Property or any tenant thereof. The
foregoing assignment shall not apply to the extent that nay such
compensation is for actual damage to the Property resulting from the
installation of the competing system. To the extent OPERATOR pursues or
participates in any such action or proceeding, OPERATOR shall indemnify and
hold OWNER harmless from any claims, damage, liabilities or costs
associated with such action or proceeding.
17. ENTIRE AGREEMENT. This Agreement together with any other written agreements
executed by OWNER and OPERATOR constitute the entire agreement between the
parties with respect to the subject matter contained in this Agreement.
Such agreements supersede all prior oral and written representations and
communications with respect to the subject matter of this Agreement. This
Agreement may only be amended by a written agreement signed by the parties
hereto.
18. ROYALTY. During the term of this Agreement, OPERATOR shall pay OWNER a
royalty equal to eight percent (8%) of OPERATOR's gross receipts from
Viewers (excluding bulk services as described in attachment "A") for
OPERATOR's Service, excluding payments by Viewers of taxes, deposits and
nonrecurring charges. Payment shall be made quarterly, within forty-five
(45) days following the end of the calendar quarter with respect to which
payment is due. OPERATOR shall maintain accurate records of all the
OPERATOR's gross receipts from Viewers for OPERATOR's services for ninety
(90) days following the submittal to OWNER of the Royalty payment for the
calendar quarter. OWNER may inspect OPERATOR's records for gross receipts
of any calendar quarter at OPERATOR's principal office at any time within
the ninety (90) day period described above. The cost of any such inspection
shall be the OWNER's sole responsibility.
19. RIGHT OF FIRST REFUSAL. Whenever OPERATOR intends to transfer or assign its
rights under the Agreement to a third party other than lender as described
in paragraph 11, OPERATOR shall furnish to OWNER a written notice setting
forth (i) the identity of the proposed transferee, and (ii) the detailed
terms of such proposed transfer. OWNER shall thereupon have the right and
option to purchase such interest on the same terms and conditions as those
arranged by the OPERATOR by delivery of written notice to the OPERATOR (an
"EXERCISE NOTICE") prior to the expiration of thirty (30) days following
receipt by the OWNER of written notice from the OPERATOR (the "OPTION
PERIOD"). Following the exercise of an option by the OWNER pursuant to this
Agreement, payment shall be made on the date mutually agreed to by the
OPERATOR and the OWNER, which shall not be more than thirty (30) days
following delivery by the OWNER to the OPERATOR of the Exercise Notice. If
(i) the OWNER does not exercise the option to purchase pursuant to this
paragraph 19 hereof before the end of the Option
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Period, or (ii) an option is exercised but the purchase price is not paid
by the Closing Date, then the OPERATOR shall be free to transfer, sell, or
assign its interest in this Agreement upon substantially the same terms and
conditions set forth in its notice given pursuant
OPERATOR: OWNER:
Name: VisionComm, Inc. Name: Tulsa Galleria, L.P.
By: SMI Galleria Management, Inc.
its General Partner
By: By:
------------------------------- -------------------------------
PRINT: Xxxxxx X. Xxx Xxxxxx X. Xxxxxx, President
ITS: Vice President/Director ADDRESS:
ADDRESS: c/o Sevo Xxxxxx Inc.
00000 Xxxxxxxx Xx. 0000 Xxxxx Xxxxxxxx Xx., 00xx Xxxxx
Xxxxxxx Xxx., XX 00000 Xxxxxx, Xxxxxxxx 00000
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ATTACHMENT A
TERMS OF AGREEMENT
The terms of this agreement shall be as follows:
1) Operator shall pay to Owner a 8% royalty on gross collected revenue
(excluding bulk services as described in Attachment "C").
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ATTACHMENT B
LEGAL DESCRIPTION
Lot One (1), Block One (1), Sheridan Galleria, an Addition of the City of Tulsa,
Tulsa County, State of Oklahoma, according to the Recorded Plat thereof.
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ATTACHMENT C
BULK PROGRAMMING
Operator agrees to provide to Owner the following "Bulk" cable services to all
256 units:
Programming:
*House Channel, NBC, CBS, ABC, PBS, CNN, TBS, ESPN, Cartoon Network
The Nashville Network and HBO
*Utilize with property's existing video
Cost:
Cost to Owner for above programming shall be $15.00 per unit per month
Payment shall be made by Owner to Operator no less than ten (10) days
prior to the beginning of each month's programming.
Bulk programming rate of $15.00 shall not be subject to any increase for the
first two (2) years of the term of this Agreement. Subsequent increases may be
imposed on a per annum basis at an amount not to exceed 10% in any one year.
Owner shall have the right to a one time option to discontinue the Bulk Service
Agreement provided by the Operator provided that Owner furnish Operator with a
minimum 90 day notice of its intent to discontinue the Bulk Service.
Furthermore, Owner shall have a one time option to convert back to Bulk Service
provided that Operator receives a minimum 90 days notice of Owner's intent to
convert back to bulk.
The term of the Bulk Agreement shall be consistent with the terms stated in the
VisionComm Right of Entry Agreement attached hereto.
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LETTER AGREEMENT
RE: Right of Entry Agreement, dated August 28, 2000 (the "AGREEMENT"),
between VisionComm, Inc. ("Operator") and Tulsa Galleria, L.P. ("OWNER"), with
respect to The Galleria Apartments (the "Property"). This shall serve as a
letter agreement between Operator and Owner.
1) Subject to the terms and conditions set forth in this letter
agreement, Operator agrees to pay to Owner a $100.00 per apartment unit signing
bonus. This also gives Operator the right to use the existing cable wiring
behind the walls. Fifty Dollars ($50.00) per apartment will be paid on
Operator's execution of the Agreement and Fifty Dollars ($50.00) per apartment
unit will be paid upon turn on of the cable system.
OPERATOR: OWNER:
Name: VisionComm, Inc. Name: Tulsa Galleria, L.P.
By: SMI Galleria Management, Inc.
its General Partner
By: By:
------------------------------- -------------------------------
PRINT: Xxxxxx X. Xxx Xxxxxx X. Xxxxxx, President
ITS: Vice President/Director ADDRESS:
ADDRESS: c/o Sevo Xxxxxx Inc.
00000 Xxxxxxxx Xx. 0000 Xxxxx Xxxxxxxx Xx., 00xx Xxxxx
Xxxxxxx Xxx., XX 00000 Xxxxxx, Xxxxxxxx 00000
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