Exhibit 10.42
STATE OF ALABAMA )
COUNTY OF XXXXXXXX )
LEASE AGREEMENT
THIS AGREEMENT OF LEASE MADE THIS 1st day of January, 1996, (hereinafter
this "Agreement") by and between BRINDLEE MOUNTAIN TELEPHONE COMPANY with
offices located at 000 Xxxxx Xxxx Xxxxxx, Xxxx, Xxxxxxx (hereinafter "BMTC") and
DELTACOM, INC., with offices located at 000 0/0 Xxxxx Xxxx Xxxxxx, Xxxx, Xxxxxxx
(hereinafter "DeltaCom").
WITNESSETH:
1. PREMISES:
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In consideration of the rents, covenants and agreements hereinafter
made, reserved and contained on the part of DeltaCom to be observed and
performed, BMTC leases to DeltaCom and DeltaCom rents from BMTC the following
described premises located in Arab, Alabama (hereinafter the "Demised
Premises"):
(a) That certain real property leased by the Masonic Lodge of Arab,
Alabama, as lessor, to BMTC, as lessee, as described in that certain agreement
entitled "LEASE" (hereinafter "LEASE") dated June 1, 1985, as recorded in the
Office of the Judge of Probate for Xxxxxxxx County, Alabama, in Book 780, Page
490, subject to that certain consent to sublease said certain real property to
DeltaCom from BMTC was given by the Masonic Lodge of Arab, Alabama, by Xxxxxxx
Xxxx, Xxxxxx Xxxxx, and Xxxxx Xxxxxxx, as Trustees, on January 12, 1996;
(b) That certain office and storage space, upstairs and downstairs,
located at 110, 116 and 000 Xxxxx Xxxx Xxxxxx in Arab, Alabama;
(c) Approximately 2,573 square feet of office and floor space
located at 000 Xxxxx Xxxx Xxxxxx xx Xxxx, Xxxxxxx;
(d) Reasonably sufficient ground space and tower attachment space
required for the safe and efficient operation of DeltaCom's microwave system
located at 000 Xxxxx Xxxx Xxxxxx xx Xxxx, Xxxxxxx; and
(e) Reasonably sufficient pole attachments and innerduct space
within BMTC's service territory for the safe and efficient operation of
DeltaCom's fiber optic system.
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2. TERM:
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The term of this Agreement, and DeltaCom's obligation to pay rent, shall
commence on the 1st day of January, 1996. In the event the term hereof
commences on a day other than the first day of the month, DeltaCom shall pay
rent for the fractional month on a per diem basis until the first day of the
following month and thereafter the minimum rent shall be paid in equal
installments on the first day of each month in advance.
3. LENGTH OF TERM:
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3.1 The initial Term of this Agreement (sometimes referred to
hereinafter as the "Term") shall be from the commencement of the Term as
provided in the clause entitled "Term" hereof through April 30, 2005.
3.2 DeltaCom shall have an option for an additional term of ten (10)
years provided (a) BMTC and the Masonic Lodge of Arab, Alabama, are able to
negotiate the monthly rental applicable during said additional term and (b)
DeltaCom and BMTC are able to negotiate the monthly rental applicable during
said additional term. DeltaCom shall provide BMTC with written notice of its
election to enter into an option term no less than ninety (90) days prior to the
end of the initial term.
3.3 Either party hereto shall have the right to terminate this
Agreement during the initial Term, or any extensions or renewals thereof, upon
twenty-four (24) months prior written notice to the other party; provided,
however, such termination shall not be applicable to that portion of the Demised
Premises occupied by DeltaCom's telecommunications switching system,
appurtenances thereto, and associated facilities required for the proper and
efficient operation thereof.
4. RENTAL AMOUNT:
--------------
4.1 During the Initial Term of this Agreement and any additional
term(s), unless this Agreement is terminated as otherwise provided herein,
DeltaCom agrees to pay BMTC an amount equal to $164,864.00 annually to be paid
in twelve equal installments of $13,738.67 monthly. Any rent payment not
received by BMTC by the tenth (10th) day of each month the same is due shall be
considered delinquent. All delinquent amounts hereunder shall accrue a late
charge of one and one- half percent (1.5%) monthly until the same is paid in
full.
4.2 Said rental shall be paid to BMTC or its agent or designee at the
address designated in writing by BMTC or its agent.
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5. SUBLEASE:
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DeltaCom acknowledges that that certain real property described in
paragraph 1(a) above is subleased to DeltaCom subject to that certain consent to
sublease given by the Masonic Lodge of Arab, Alabama, dated January 12, 1996, a
copy of which is attached to this Agreement as Attachment 01. With respect to
that certain real property described in paragraph 1(a) above, DeltaCom hereby
agrees to comply with all terms, covenants and conditions of the LEASE and that,
in the event the provisions of this Agreement conflict with the terms of the
LEASE, all matters, covenants and things contained in the LEASE shall prevail
over all matters, covenants and things set forth in this Agreement as the same
relate to the sublease of said certain real property.
6. USE OF DEMISED PREMISES:
------------------------
The Demised Premises shall be used and occupied by DeltaCom for the
purpose of providing telecommunications services, information services, and
related services, and handling such items and providing such services as are
customarily handled and provided by such businesses, but for no other purpose
without the prior written consent of BMTC. DeltaCom agrees that it will use and
occupy the said Demised Premises and appurtenances in a careful, safe, and
proper manner; and will, at its expense, comply with the direction of the public
office as to the use and maintenance thereof; and will not allow said Demised
Premises to be used for any purpose or in any way that will increase the rate of
insurance upon the Demised Premises and the premises contiguous thereto, nor for
any purpose other than hereinbefore specified, and will not bring nor suffer to
be brought in or upon said Demised Premises any substance that will increase the
hazard of fire casualty in or on said Demised Premises and on the premises
contiguous thereto; and will not permit said Demised Premises to be used for any
unlawful purpose nor in any way to injure the reputation of the same or of the
building or buildings of which it is a part, or create a nuisance or bring about
trespass thereon; and will not permit said Demised Premises to remain vacant or
unoccupied for more than thirty (30) consecutive days.
7. CONTINUED POSSESSION OF DEMISED PREMISES:
-----------------------------------------
If DeltaCom continues to occupy the Demised Premises after the last day
of the Term hereof, (if the Term hereof or any extension thereof are not
extended), and BMTC accepts or agrees to accept rent thereafter, tenancy from
month to month terminable by either party on not less than ninety (90) days
notice, would then be created which monthly tenancy shall be upon the same terms
and conditions as those herein contained.
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8. INSURANCE:
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8.1 During the Term of this Agreement, and any renewals or extensions
thereof, unless otherwise agreed to in writing by the authorized
representatives, DeltaCom shall, at its own expense, maintain in effect
insurance coverage with limits not less than those set forth herein:
(a) Employer's liability Insurance, for employee bodily injuries and
deaths, with limits of $500,000 per occurrence; and
(b) Commercial general liability insurance, covering claims for bodily
injury, death and property damage, including comprehensive form, premises and
operations, independent contractors, products and completed operations, personal
injury, contractual, and broad form property damage liability coverage, with
limits of $1,000,000 per occurrence and general aggregate of $5,000,000.
8.2 All such policies of insurance shall provide that the same shall
not be cancelled nor the coverage modified, nor the limits changed, without
first giving thirty (30) days prior written notice thereof to BMTC. No such
cancellation, modification or change shall affect DeltaCom's obligation to
maintain the insurance coverage required by this Agreement. All liability
insurance policies shall be written on an "occurrence" policy form. DeltaCom
shall be responsible for payment of any and all deductibles from insured claims
under its policies. Upon reasonable request, DeltaCom shall furnish to BMTC a
certificate of insurance as evidence of compliance with the aforementioned
requirements.
8.3 The foregoing insurance requirements are not intended to and shall
not in any manner limit or qualify the liabilities and obligations assumed by
DeltaCom under this Agreement.
9. USE OF COMMUNITY AREA AND SIGNS:
--------------------------------
9.1 DeltaCom agrees to abide by all reasonable rules and regulations
which may be promulgated by BMTC in connection with loading, unloading, parking
or other controls of the use of the Demised Premises by DeltaCom, its agents,
employees and customers.
9.2 DeltaCom shall not erect, install or maintain any sign on the
exterior of the Demised Premises or upon any other part of the Demised Premises
without the prior written approval thereof by BMTC, and DeltaCom upon written
notice from BMTC shall promptly remove any sign, advertising, or display device
erected or maintained in violation of this provision. If DeltaCom fails to
remove same promptly upon receipt of such notice
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from BMTC, then in such event BMTC may cause such sign, advertising, or display
device to be removed and the cost of such removal and the restoration of the
Demised Premises resulting from the removal of the sign shall be paid by
DeltaCom as additional rental, which amount is to be included within the Rent
due for the month following such removal. The location of the sign and the
color, size and design thereof shall be subject to the approval of BMTC.
10. REPAIRS, DELTACOM MAINTENANCE, WAIVER OF LIABILITY:
--------------------------------------------------
10.1 DeltaCom shall, at its own expense, keep and maintain the Demised
Premises and appurtenances thereof, including sprinkler, if any, heating, air
conditioning, water and sewer systems, electrical, machinery, fixtures,
plumbing, plumbing fixtures and equipment, in good order and repair throughout
the Term of this Agreement and any extensions thereof, except such portions of
the Demised Premises which are to be repaired by BMTC pursuant to the specific
and applicable terms contained in this Agreement. DeltaCom shall be liable for
any damage or injury which may be caused by or resulting from DeltaCom's failure
to faithfully comply with all of the terms and conditions contained herein and
which are to be complied with by DeltaCom.
10.2 In the event DeltaCom desires to penetrate the roof or any wall of
said Demised Premises for any type of ventilation, DeltaCom shall be solely
responsible for any damage which may be caused by or result from such
penetration. Such penetration shall not be constructed except with the written
consent and approval of BMTC first obtained and it shall be constructed at the
sole cost of DeltaCom.
10.3 DeltaCom covenants and agrees to indemnify and save harmless, at
its own cost, BMTC from and against any and all liability, damage, injury,
actions or causes of action whatsoever resulting from the operation, conduct and
use of the interior of the Demised Premises.
11. REPAIRS BY BMTC:
---------------
Subject to the provision in this Agreement (wherein BMTC agrees to
repair or reconstruct the Demised Premises in event of casualty or in the event
of the taking of the Demised Premises by Eminent Domain, all as set forth in the
provisions relating thereto), BMTC agrees to keep in good repair, or caused to
be kept in good repair, the foundations exterior walls (excluding the exterior
and interior of all windows and doors), downspouts, gutters and roof of the
Demised Premises, except, however, for any damage or injury thereto caused by or
resulting from any negligence, act, or omission of DeltaCom or any of DeltaCom's
agents, servants, employees, sub-lessees, licensees, invitees, and customers. It
is expressly agreed by the parties hereto, and it is a condition precedent to
all of the
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obligations of BMTC to repair and maintain the exterior of the Demised Premises,
as aforesaid, that DeltaCom shall have notified BMTC, in writing, of the need of
such repairs. If BMTC shall fail to commence making of such repairs within
fifteen (15) days after written notice thereof is received by BMTC, then, in
such event, DeltaCom's sole right and remedy for such failure on the part of
BMTC shall be, after notifying BMTC, to cause such repairs to be made and to
deduct the cost thereof from the rent payable thereafter, but the amount of such
deduction shall not exceed the reasonable value of such repairs.
12. ADDITIONS AND ALTERATIONS:
-------------------------
DeltaCom agrees not to make any additions, alterations or improvements
in and to the Demised Premises without the prior written consent of BMTC, which
consent shall not be unreasonably withheld, but in no event shall such
additions, alterations or improvements in any way, in the judgment of BMTC,
impair the structural strength or soundness of the building of which the Demised
Premises are a part, except as may be specifically allowed by the terms of this
Agreement.
13. POLE AND TOWER ATTACHMENTS:
--------------------------
13.1 DeltaCom shall have the right to attach, maintain, repair,
replace, and remove fiber optic cable and associated equipment on BMTC's poles
in BMTC's customer territory and attach, maintain, repair, replace, and remove
microwave antennas, cabling, and other associated equipment on BMTC's tower
located at 000 Xxxxx Xxxx Xxxxxx in Arab, Alabama. DeltaCom shall be solely
responsible for determining and assuring the safety of all attachments to the
poles and tower and the structural integrity of the tower prior to the
attachment of any new antennas or equipment thereto. No additional attachments
not in existence as of the date of this Agreement shall be attached to BMTC's
poles or tower without the written consent of BMTC, which consent shall not be
unreasonably withheld, and (a) so long as the attachment(s) will not have an
adverse affect upon BMTC's or its other current lessees' use of the poles and
tower and (b) DeltaCom provides assurance to BMTC that the proposed
attachment(s) will not be adverse to the structural integrity of the poles and
tower.
13.2 DeltaCom covenants and agrees to indemnify and save harmless, at
its own cost, BMTC from and against any and all liability, damage, injury,
actions or causes of action whatsoever resulting from the attachment,
maintenance, repair, replacement, removal, and use of BMTC's poles and tower.
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14. UTILITIES:
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Unless the following charges are metered separately or are incurred
separately by DeltaCom, BMTC agrees to pay all charges for utilities, including
heating, water, gas, electricity and sewerage, and also for trash and garbage
removal, as and when said charges become due and payable. DeltaCom shall
reimburse BMTC upon receipt of invoice for that portion of the said charges
equal to the proportionate share of the Demised Premises located at 113 and 000
0/0 Xxxxx Xxxx Xxxxxx to the total BMTC space located at 113 and 000 0/0 Xxxxx
Xxxx Xxxxxx.
15. BANKRUPTCY OR INSOLVENCY:
------------------------
If at any time during the term of this Agreement or any extensions
thereof, a petition has been filed to have DeltaCom adjudicated a bankrupt, or a
petition for reorganization or arrangement under any of the laws of the United
States Bankruptcy Act be filed by DeltaCom or be filed against DeltaCom and not
be dismissed within sixty (60) days from the date of such filing, or if DeltaCom
has filed a petition to be adjudicated a bankrupt, or if the assets of DeltaCom
or the business conducted by DeltaCom on the Demised Premises be taken over or
sequestered by a trustee or any other person pursuant to any judicial
proceedings, or if DeltaCom makes an assignment for the benefit of creditors,
then the occurrence of any such act shall be deemed, at the option of BMTC, to
constitute a breach of this Agreement by DeltaCom. BMTC, at its election, may
terminate this Agreement in the event of occurrence of any of the events
enumerated herein, by giving not less than five (5) days written notice to
DeltaCom or to the assignee or to the trustee or such other person appointed
pursuant to the order of a court, and thereupon BMTC may re-enter the Demised
Premises and this Agreement shall not be treated as an asset of DeltaCom's
estate. However, BMTC shall be entitled to exercise all available rights and
remedies and to recover from DeltaCom all moneys which may be due or become due,
including damages resulting from the breach of the terms of this Agreement by
DeltaCom.
16. TAXES:
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16.1 BMTC shall pay all real estate taxes assessed against the realty
constituting the Demised Premises, of which the Demised Premises is a part, as
same become due and payable. DeltaCom shall pay all taxes and assessments
assessed against or by reason of the property which DeltaCom owns or uses within
the Demised Premises, and all licenses and other fees in connection with and in
the conduct of DeltaCom business.
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16.2 DeltaCom shall pay to BMTC as additional rental the fractional
portion of the Tax Increase, if any, in any Tax Fiscal Year subsequent to the
Base Tax Year, as hereinafter more fully provided. For the purpose herein the
term Tax Increase shall mean the amount, if any, by which the taxes and
assessments levied and assessed in any Tax Fiscal Year, during the term of this
Agreement and any extensions thereof, applicable to all of the land and
improvements comprising the Demised Premises, exceed the amount of taxes and
assessments levied and applicable to and upon the land and buildings comprising
the Demised Premises for such Base Tax Year. The term Base Tax Year shall mean
the first tax fiscal or calendar year for or during which year the Demised
Premises are occupied by DeltaCom. DeltaCom's portion of the Tax Increase shall
be in the percentage which the floor space area of the Demised Premises bears to
the total floor space area of the buildings in which the Demised Premises are
located.
16.3 In addition thereto, if the taxes and assessments upon the Demised
Premises in and/or after the year during which additions or improvements are
made by DeltaCom or by BMTC, are increased by reason of any such additions or
improvements, then DeltaCom shall pay BMTC the amount representing such increase
for each year. In the event less than a full lease year is involved in computing
such increase or in the event the Base Tax Year and lease year are not
identical, then the amount of such tax increase shall be prorated on a monthly
basis between the parties hereto, to the end that DeltaCom shall pay the tax
increase only attributable to the applicable portion of the Base Tax Year. In
each event the aforesaid amounts shall be paid to BMTC semi-annually or
periodically by DeltaCom within fifteen (15) days after submission by BMTC or
his agent to DeltaCom of the bills and the substantiating data therefore.
17. INSPECTION AND ACCESS TO PREMISES:
---------------------------------
17.1 BMTC, its agents and employees, shall have the right, at all
reasonable times, to enter the Demised Premises or any part thereof to inspect
and examine same and for the purpose of making any repairs to or within the
Demised Premises which BMTC has agreed to make under the terms of this
Agreement, and/or which BMTC deems advisable to make in order to preserve and/or
maintain the Demised Premises.
17.2 BMTC, its agents and employees shall have free access to and
within the Demised Premises at all reasonable times of the day for the purpose
of examining the same and also to make any repairs or alterations to or within
said Demised Premises that BMTC may deem necessary for the safety or
preservation of the property.
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18. PARKING:
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DeltaCom shall have the non-exclusive right, in common with other
occupants of the buildings in which the Demised Premises are located, of parking
in the spaces as may be designated by BMTC from time to time in the future, and
BMTC agrees to keep the parking area clean and in good repair with reasonably
sufficient space for parking.
19. ASSIGNMENT AND SUBLETTING:
--------------------------
19.1 DeltaCom shall not, without the prior written consent of BMTC
first obtained, which consent shall not be unreasonably withheld, assign this
Agreement, or sublet the Demised Premises or any part thereof, or permit the use
of the Demised Premises by any party other than DeltaCom. However, DeltaCom may
sublet portions of the Demised Premises provided such subleasee's operation is
related to the general operation of DeltaCom and under the supervision and
control of DeltaCom, and provided further that such operation is within the
purposes for which said Demised Premises are let. Consent given by BMTC to any
assignment or sublease a except as provided herein, shall be made only subject
to the obtaining of prior written consent of BMTC. The assignee of DeltaCom, at
the option of BMTC, shall become directly liable to BMTC for all obligations of
DeltaCom hereunder, but no sublease or assignment by DeltaCom shall relieve
DeltaCom of any primary liability hereunder nor of its obligations to comply
promptly and faithfully with all of the terms and conditions of this Agreement.
19.2 However, in any event, it is agreed that DeltaCom shall have the
right to sublease or assign this Agreement to any wholly owned corporation or to
any corporation by which it is wholly owned, its subsidiaries, affiliated, and
successors or its successors or assigns resulting from a merger or
consolidation.
20. FIXTURES:
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Upon the expiration of the Term of this Agreement, or any extension
thereof, DeltaCom, if not in default in the terms of this Agreement, shall have
the right to remove, at its cost, all trade fixtures and trade equipment which
it has placed on the Demised Premises without loss in rental to BMTC.
21. CANCELLATION OF LEASE BY BMTC:
------------------------------
In the event DeltaCom shall default in the payment of rent herein
reserved, when due, or if DeltaCom shall default in performing any of the other
terms or provisions of this Agreement which are to be performed by DeltaCom,
and fails to cure such default within
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thirty (30) days after the date of written notice from BMTC of such default,
then, in each such event, BMTC, at its option, may terminate this Agreement by
written notice to DeltaCom, whereupon this Agreement shall end and terminate.
After an authorized assignment of this Agreement or subletting of part or all of
the entire Demised Premises as authorized by the terms of this Agreement, the
occurring of any of the foregoing defaults or events shall affect this Agreement
whether caused by DeltaCom or the assignee or subleasee. Upon termination by
BMTC of the tenancy, DeltaCom shall surrender at once possession of the Demised
Premises to BMTC and remove all of DeltaCom's effects therefrom; and BMTC shall
have the right forthwith to re-enter the Demised Premises, repossess the same,
and remove all persons and effects therefrom, using such force as may be
necessary without being guilty of trespass, forcible entry or detainer or other
tort.
22. SUBLETTING BY BMTC OF DEMISED PREMISES:
--------------------------------------
Without terminating this Agreement upon breach thereof by DeltaCom or
its sub-lessees or assignees, or upon DeltaCom's vacation or abandonment of the
Demised Premises or upon ceasing to operate a business therein, BMTC, at its
option, may enter upon and let the Demised Premises to others at the best price
obtainable by reasonable effort, without advertisement and/or by private
negotiation, for any term BMTC deems proper. DeltaCom shall be and remain liable
to BMTC for the difference, if any, between DeltaCom's rent due and to become
due hereunder and the amount of rent actually received by BMTC as a result of
re-letting of the Demised Premises for the balance of the period covered by this
Agreement.
23. EFFECT OF TERMINATION OF LEASE:
------------------------------
No termination of this Agreement prior to the end of the Term hereof
shall affect BMTC's right to collect full rent for the term of this Agreement,
except in the events specifically provided in this Agreement. Notwithstanding
anything to the contrary herein, it is specifically understood that if DeltaCom
shall default in performing any of the terms or provisions of this Agreement, or
the Agreement shall be terminated by BMTC prior to the end of the term hereof as
a result of Tenants default or breach, BMTC shall have the right to accelerate,
without notice to DeltaCom, the entire rent for the term of this Agreement.
24. DAMAGE TO PREMISES:
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If the Demised Premises shall be damaged by fire, the elements,
unavoidable accident or other casualty, but are not thereby rendered
unwarrantable in whole or in part, BMTC shall at its own expense cause such
damage to be repaired, and the rent shall not be abated except as hereinafter
provided. If by any reason of such occurrence, the Demised Premises shall be
rendered untenantable only in part, BMTC shall, at its own
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expense, cause the damage to be repaired with due diligence, and the fixed
minimum rent meanwhile shall be abated proportionately as to that portion of the
Demised Premises rendered wholly untenantable. If the Demised Premises shall be
rendered wholly untenantable by reason of such occurrence, BMTC shall, at its
own expense, cause such damage to be repaired with due diligence, and the fixed
minimum rent meanwhile shall xxxxx until the Demised Premises shall have been
restored and rendered tenantable. If, during the last two (2) years of the term
of this Agreement, or any extension thereof, the Demised Premises are destroyed
by fire or other casualty or are partially destroyed by fire or other casualty,
or are partially destroyed so as to render the Demised Premises wholly unfit for
occupancy, then at such time, if DeltaCom exercises its option, if such option
exists in accordance with the terms of this Agreement, to extend the term of the
Agreement for an option term, then in that event BMTC shall have no option to
terminate this Agreement, but shall be obligated to restore the Demised Premises
with due diligence in the same manner as hereinabove set forth in this
Agreement. However, if DeltaCom does not exercise its option to extend the term
of this Agreement, then in such event either DeltaCom or BMTC, within sixty (60)
days from such destruction by fire or other casualty shall have the right to
terminate this Agreement by written notice to the other. If the Demised Premises
are reconstructed, then the payment of rent by DeltaCom shall xxxxx from the
time of the fire or other destruction until the Demised Premises are again ready
for occupancy and use, whereupon this Agreement shall continue for the unexpired
term, extended by the period during which the Demised Premises are not fit for
occupancy and use, at and for the same rentals and upon the same terms and
conditions as herein provided. If the Demised Premises are not reconstructed and
restored due to the proper election of either DeltaCom or BMTC, then this rental
contract shall cease and terminate from the time of the fire or destruction or
other casualty, and DeltaCom shall be released and discharged from the payment
of all rent accruing after the date of such destruction by fire or other
casualty, and BMTC may re-enter and repossess the Demised Premises.
25. EMINENT DOMAIN:
--------------
If the whole of the Demised Premises, or such portion thereof as will
make Demised Premises unusable for the purposes for which the Demised Premises
are leased, shall be appropriated or taken pursuant to the power of Eminent
Domain by any public or quasi public authority, then the Term herewith granted
shall cease and terminate from any further liability hereunder, and rent shall
be computed between BMTC and DeltaCom as of the date of taking and be paid to
that day. Such termination, however, shall be without prejudice to the rights of
either BMTC or DeltaCom to recover from the condemner compensation and damage
caused by condemnation and neither party shall have any rights in any award or
settlement so received by the other from the condemning body. If only part of
the Demised Premises shall have been taken under this power of Eminent Domain
and the Demised Premises so taken may be replaced or restored within a period
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of 120 days from date of taking thereof and thereby make said Demised Premises,
as rebuilt or restored, useable for DeltaCom's purposes as herein described,
then in each such event BMTC shall notify DeltaCom within 15 days from the date
of such taking, of BMTC's election to repair or restore such taken area and this
Agreement shall continue in full force and effect, except that during the period
of rebuilding or restoration if DeltaCom can operate its business during such
period, DeltaCom's rent shall be reduced in the same proportion that the amount
of the floor area of the Demised Premises taken bears to the total area of the
Demised Premises immediately prior to such taking. Upon completion of said
reconstruction the rent, as provided herein, shall be paid to BMTC. Sale by BMTC
to any public or quasi public body having the power of Eminent Domain under
threat of condemnation or while condemnation proceedings are pending, shall be
deemed to be a taking by Eminent Domain.
26. SUBORDINATION TO BMTC'S MORTGAGE:
--------------------------------
This Agreement, at the option of BMTC or BMTC's Mortgagee, if any, may
be and at all times after notice thereof shall be subject and subordinate to any
and all present and future mortgages, security deeds, or encumbrances which may
be placed by BMTC on said Demised Premises or any part thereof. DeltaCom
covenants and agrees to execute upon demand of BMTC all instruments
subordinating this Agreement to the lien of any mortgage or mortgages, security
deeds, or encumbrances as shall be required by BMTC. DeltaCom hereby irrevocably
appoints BMTC as attorney in fact of DeltaCom, with power to execute and
deliver, without subjecting BMTC to liability of any kind, such instrument or
instruments for and in the name of DeltaCom, in the event DeltaCom shall fail to
execute such instrument or instruments within five (5) days after written notice
to do so is given to DeltaCom. Provided however, anything to the contrary
contained herein notwithstanding, such mortgagee or encumbrance holder shall,
unless otherwise allowed by state law, recognize the validity and continuance of
this Agreement in the event of a foreclosure of BMTC's interest or otherwise, as
long as DeltaCom shall not be in default under the terms of this Agreement.
27. DELTACOM'S EVIDENCE OF TERM AND RENT:
------------------------------------
Upon BMTC's request, DeltaCom shall execute, acknowledge and deliver to
BMTC, within ten (10) days from date of said request, a statement in writing
certifying that this Agreement is in full force and effect and containing the
dates to which the rent and any other charges have been paid. The statement so
delivered to BMTC may be relied upon by any prospective purchaser of or by any
mortgagee upon the Demised Premises.
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28. RELEASE FROM LIABILITY IN CERTAIN EVENTS:
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28.1 In the event BMTC is delayed or prevented from making any repairs,
rebuilding or restoration or furnishing any services or performing any other
covenant or duty, whether expressed herein or implied to be performed on BMTC's
part due to BMTC's inability or difficulty in obtaining labor, materials
necessary therefore or due to strike, lockout, embargo, war, Governmental orders
or acts of God or any other cause beyond BMTC's control, then BMTC shall not be
liable to DeltaCom for damages resulting therefrom, nor, except as expressly
otherwise provided in connection with casualty losses or condemnation
proceedings, nor shall DeltaCom be entitled to any abatement or reduction of
rent by reason thereof nor shall the same give rise to a claim in DeltaCom's
favor that such failure constitutes actual or constructive, partial or total,
eviction from the Demised Premises.
28.2 DeltaCom shall not be entitled to any compensation or reduction of
rent by reason of inconvenience or loss arising from the necessity of BMTC's
entering the Demised Premises for any of the purposes authorized in this
Agreement, or for repairing the Demised Premises or any portion of the building
of which the Demised Premises are a part.
29. SUCCESSORS AND ASSIGNS:
----------------------
The covenants, conditions, and stipulations contained in this Agreement
shall bind and inure to the benefit of BMTC and DeltaCom and their respective
successors and assigns except as provided in this Agreement.
30. ATTORNEY'S FEES:
---------------
All past due rent, and any other amount which BMTC has advanced in order
to cure DeltaCom's defaults hereunder, shall bear interest at the monthly rate
of one and one-half percent (1.5%) or the highest legal rate, whichever is
lower, from the date of payment until repaid. Any amounts advanced by BMTC
pursuant to the terms and provisions of this Agreement, shall be repaid to BMTC
by DeltaCom by the first of the calendar month following the date of such
advances. If any rent or such other amounts owing under this Agreement is
collected by or through an attorney-at-law, DeltaCom agrees to pay reasonable
attorneys fees in effecting collections.
31. RIGHTS CUMULATIVE: All rights, powers and privilege available
-----------------
hereunder to the parties hereto are cumulative and are in addition to the rights
granted by law.
13
32. NOTICES:
-------
32.1 Any written notice under this Agreement shall be deemed properly
given if sent by (a) registered or certified mail, postage prepaid, (b) by
nationally recognized overnight delivery service, (c) by facsimile, or (d) by
hand delivery to the address specified below, unless otherwise provided for in
this Agreement:
If to DeltaCom: (One copy to each)
DELTACOM, INC.
Attention: President
and
DELTACOM, INC.
Attention: General Counsel
000 0/0 Xxxxx Xxxx Xxxxxx
Xxxx, XX 00000
Facsimile Number: (000)000-0000
If to BMTC: (One copy to each)
BRINDLEE MOUNTAIN TELEPHONE COMPANY
Attention: President
and
BRINDLEE MOUNTAIN TELEPHONE COMPANY
Attention: General Counsel
000 Xxxxx Xxxx Xxxxxx
Xxxx, XX 00000
Facsimile Number: (000)000-0000
32.2 Either party may, by written notice to the other party, change the
name or address of the person to receive notices pursuant to this Agreement.
32.3 Unless otherwise provided herein, notices shall be deemed
delivered: if sent by U.S. Mail, three (3) days after deposit; if sent by
facsimile, upon verification of receipt; if sent by commercial overnight
delivery service, one (1) day after deposit; or, if by hand delivery, on the
date of receipted delivery.
33. WAIVER OF RIGHTS:
----------------
No failure of BMTC to exercise from time to time any right or privilege
granted BMTC hereunder, or to insist upon strict and faithful compliance by
DeltaCom with all of
14
the obligations hereunder required of DeltaCom, and no custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of BMTC's
right to demand strict compliance with the terms hereof. No waiver by BMTC of
any breach of any covenant of DeltaCom herein contained shall be construed as a
waiver of any subsequent breach of the same or any other covenant herein
contained.
34. CAPTIONS:
--------
Paragraph captions throughout this instrument are inserted for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Agreement or as a limitation of the scope
of the particular paragraph to which they refer.
35. QUIET ENJOYMENT:
---------------
So long as DeltaCom pays the rent and other charges provided in this
Agreement, and faithfully performs and observes all of the covenants and
provisions hereof upon its part to be performed, DeltaCom shall have peaceable
and quiet enjoyment and possession of the Demised Premises together with the use
of the common area facilities, without any let or hindrance from BMTC or of any
person or entities lawfully claiming through the Lessor subject to the aforesaid
rights of redemption.
36. ENTIRE AGREEMENT:
----------------
This Agreement contains and embodies the entire agreement of the parties
hereto and no representations inducements or agreements, oral or otherwise,
between the parties not contained and embodied herein shall be of any force or
effect, and that same may not be modified, changed or terminated in whole or in
part orally or in any other manner than by an agreement in writing duly signed
by all of the parties hereto.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the day and
year first above written.
DELTACOM:
--------
ATTEST: DELTACOM, INC.
By: /s/Xxx Xxxxxx By: /s/Xxxxxx XxXxxxxx
-------------------------- --------------------------
Name: Xxx Xxxxxx Name: Xxxxxx XxXxxxxx
------------------------ ------------------------
Title: Secretary Title: President
----------------------- -----------------------
BMTC:
----
ATTEST: BRINDLEE MOUNTAIN TELEPHONE COMPANY
By: /s/Xxx Xxxxxx By: /s/Xxxxxx X. XxXxxxxx
-------------------------- --------------------------
Name: Xxx Xxxxxx Name: Xxxxxx X. XxXxxxxx
------------------------ ------------------------
Title: Secretary Title: President
----------------------- -----------------------
16
STATE OF ALABAMA )
COUNTY OF XXXXXXXX )
CONSENT TO SUBLEASE
-------------------
WHEREAS, the Masonic Lodge of Arab, Alabama, by Xxxxx Xxxxxxx, Xxxxxxx
XxXxxxxxx, and Xxxxx Xxxxxxxxx, as Trustees, (hereinafter referred to as the
"Lodge") leased certain real property (hereinafter referred to as the
"Premises") to Brindlee Mountain Telephone Company (hereinafter referred to as
"BMTC") as described in that certain agreement entitled "LEASE" dated June 1,
1985, (hereinafter referred to as "Lease"), said Lease having been recorded in
the Office of the Judge of Probate for Xxxxxxxx County, Alabama, in Book 780,
Page 490; and
WHEREAS, BMTC desires to sublease the Premises to DeltaCom, Inc., an
Alabama corporation, (hereinafter referred to as "DeltaCom") and BMTC having
requested the consent of the Lodge to the proposed sublease to DeltaCom; and
WHEREAS, the Lodge desires to consent to the sublease of the Premises to
DeltaCom.
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration in hand paid to the Lodge by BMTC, the
receipt and sufficiency of which is hereby acknowledged by the Lodge, the Lodge
does hereby consent to a sublease being made by BMTC to the entire Premises
described in the Lease, to DeltaCom, conditioned upon the following:
1. The sublease from BMTC to DeltaCom shall be for the remainder of
the current term of the Lease, said term to expire on April 30, 2005.
2. The sublease from BMTC to DeltaCom shall be subject to the terms,
covenants and conditions of the Lease and all matters, covenants and things
contained in the Lease, shall prevail over all matters, covenants and things set
forth in the lease agreement between BMTC and DeltaCom.
3. BMTC shall remain primarily responsible to the Lodge for the
fulfillment of all obligations and responsibilities required in the Lease for
which BMTC is currently or may hereafter become obligated or responsible. No
term, covenant or condition of the lease agreement between BMTC and DeltaCom
shall modify or attempt to modify BMTC's obligations and responsibilities to the
Lodge.
IN WITNESS WHEREOF, this Consent to Sublease was given and executed on
behalf of the Lodge and acknowledged by BMTC this 12th day of January, 1996.
LODGE
-----
Witness: MASONIC LODGE OF ARAB, ALABAMA
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxx
---------------------------------- --------------------------------
TRUSTEE
/s/ Xxxxxxx X. Xxxxx
--------------------------------
TRUSTEE
/s/ Xxxxx X. Xxxxxxx
--------------------------------
TRUSTEE
BMTC ACKNOWLEDGEMENT
--------------------
Witness: BRINDLEE MOUNTAIN TELEPHONE
COMPANY
/s/ Xxxxxxx Xxxxxx By: /s/ Xxx Xxxxxx
---------------------------------- --------------------------------
Its VICE PRESIDENT
--------------------------------
THIS INSTRUMENT PREPARED BY:
Xxxxxx X. Xxxxx
X.X. Xxx 000
Xxxx, XX 00000
