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EXHIBIT 10.39
CONFIDENTIAL TREATMENT REQUESTED
Confidential portions of this Agreement which have been redacted are marked with
brackets ("[ ]"). The omitted material has been filed separately with the
Securities and Exchange Commission.
FILE XX. 00000.00000
XXXXX XX XXXXXXX
XXXXXX XXXXXX
LEASE AGREEMENT
(Commercial Lease)
THIS LEASE AGREEMENT ("Lease") is made and entered into this 12th day
of October, 1998, between SOUTHERN COMPANY SERVICES, INC., an Alabama
corporation, on its own behalf and as agent for Georgia Power Company with an
office located at 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Lessor"), and KNOLOGY HOLDINGS, INC., a
Delaware corporation with offices at 0000 X.X. Xxxxxxx, Xxxx Xxxxx, XX 00000
(hereinafter referred to as "Lessee").
W I T N E S S E T H:
WHEREAS, Lessor either owns or has the authority to lease that certain
tract of land, more particularly described on Exhibit "A" attached hereto and
by reference made a part hereof ("Land"), together with the improvements located
thereon, being known as the Augusta 00xx Xxxxxx Substation; and
WHEREAS, Lessee desires to lease a portion of the Land to install,
maintain and operate a communications building and to use certain conduits/fiber
connector ducts for communications cables, all as more particularly shown on
Exhibit "B" attached hereto and by reference made a part hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations, agreements, representations, warranties and covenants, the parties
agree as follows:
1. Leased Premises. Lessor hereby leases and rents to Lessee, and
Lessee hereby leases and rents from Lessor the "Leased Premises." "Leased
Premises" shall mean that certain portion of the Land depicted as the
crosshatched area on Exhibit "B", together with (i) a non-exclusive right to
install and use certain conduits and fiber connector ducts; (ii) a non-exclusive
right to attach to certain existing poles; (iii) a non-exclusive right of
vehicular and pedestrian access to and from the Leased Premises to a public
right-of-way, on a route designated by Lessor in Lessor's sole discretion over
and across Lessor's driveways and parking areas as they may be located and
relocated from time to time at Lessor's sole discretion; and (iv) nonexclusive
easements over and across a portion of the Land for purposes of providing
electricity and other utilities to the Leased Premises (the easements and rights
set forth in (i) - (iv) being at locations identified on Exhibit "B").
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[ ] -- CONFIDENTIAL TREATMENT REQUESTED
2. Term. (a) The initial term of this Lease shall be for twenty
(20) years ("Original Term"), commencing on November 1, 1998 and ending on
October 30, 2018, at 11:59 PM, subject, however, to termination by Lessor or by
Lessee, as hereinafter provided.
(b) Lessor hereby grants to Lessee the right and option to extend
the Original Term for two (2) additional periods (each such additional period
being an "Extended Term") of ten (10) years each by giving Lessor written notice
thereof at least six (6) months prior to the expiration of the Original Term or
the then applicable Extended Term. Lessee shall have the right to exercise these
options to extend the Original Term provided that on the date of such exercise
there exists no uncured default by Lessee with respect to which Lessor has given
written notice to Lessee pursuant to the provisions of this Lease.
(c) Each Extended Term shall be on the terms, covenants and
conditions of this Lease then applicable, except that after the exercise of the
option for the first Extended Term, Lessee shall have only one (1) option to
extend, and after the exercise of the option for the second Extended Term,
Lessee shall have no further options to extend the term.
3. Rent. As rental for the Leased Premises for the entire term,
Lessee has paid Lessor the sum of [ ] Dollars. In addition, Lessor may
from time to time send written notice to Lessee setting forth any and all actual
costs incurred by Lessor (and not previously reimbursed by Lessee) relating to
the Lease, including, but not limited to: (i) survey costs, (ii) design and
construction costs, (iii) maintenance costs, and (iv) legal fees in preparing
and implementing this Lease. Lessee shall pay to Lessor the costs specified in
such notice within ten (10) days of receipt thereof.
4. Use. The Leased Premises shall be used by Lessee for any
lawful telecommunications purposes, so long as such use does not interfere with
or in any way prevent the everyday operation and use of the Land for Lessor's
business purposes, including specifically, but without limitation, the
generation, transmission and distribution of electricity. Lessee agrees that the
Leased Premises may or may not be suitable for the use Lessee desires to make of
the Leased Premises and that the Leased Premises may not be in a safe or proper
condition for such use. LESSEE AGREES THAT LESSEE IS LEASING, AND ACCEPTS, THE
LEASED PREMISES "AS IS", "WHERE IS", "WITH ALL FAULTS" AND LESSOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO FITNESS, MERCHANTABILITY, USE OR
CONDITION OF THE LEASED PREMISES.
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5. Lessee's Improvements. (a) Subject to the provisions of this
Lease, Lessee shall have the right to construct, install, operate and maintain
on the Leased Premises those improvements more particularly shown on Exhibit "B"
hereto and including a one-story equipment building with dimensions of
approximately 60 feet by 24 feet ("Equipment Building"), an aboveground
generator and aboveground fuel storage tank, certain conduits, ducts and
communications fibers and cables ("Lessee's Improvements"), as Lessee's
Improvements are more particularly described on Exhibit "B-1" attached hereto
and by reference made a part hereof. In the event Lessee installs a generator,
(i) Lessee shall indemnify and hold Lessor harmless from and against all losses,
costs, claims, damages, suits, actions, liabilities, demands, and expenses,
including, without limitation, attorney's fees and other professional fees and
costs, arising out of or in any manner connected with the installation,
maintenance, use or operation of such generator or fuel storage tank, including,
without limitation, fuel storage and use, and (ii) Lessee shall be solely
responsible for complying with, and waives and releases, and indemnifies and
holds harmless, Lessor, Lessor's agents, employees, officers, directors and
stockholders of and from any and all claims (including without limitation strict
liability), demands, liabilities and obligations of whatsoever kind or nature,
direct or indirect, and whether contingent, conditional or otherwise, known or
unknown, arising under, pursuant to, from or by reason of or in connection with,
any and all federal, state and local laws (including but not limited to
decisional law), statutes, ordinances, rules, regulations, permits, or
standards, including but not limited to those relating to the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of any pollutant, contaminant, toxic, hazardous or
regulated substance, material or waste, including, without limitation, oil or
petroleum products or their derivatives, solvents, polychlorinated biphenyls,
asbestos, asbestos containing materials, radioactive materials or waste, and any
other toxic, ignitable, reactive, or corrosive materials which are now or in the
future subject to governmental regulation (individually, a "Hazardous Substance"
and collectively "Hazardous Substances"), and arising out of or in any manner
connected with the use, operation, installation, maintenance, repair,
replacement or removal of the generator or fuel storage tank, and (iii) if
Lessee installs and utilizes an aboveground fuel storage tank, Lessee shall
comply with all federal, state and local environmental laws, including, but not
limited to, the Oil Pollution Act of 1990 (OPA) and OPA's regulations, and
Lessee shall prepare and implement a Spill Prevention Control and
Countermeasures Plan which meets all applicable requirements of OPA. The
sentence immediately preceding this sentence shall survive the termination or
expiration of the term of this Lease.
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(b) Except for Lessee's Improvements, Lessee shall not
any construct any improvements on the Leased Premises or make any alterations,
modifications or additions to Lessee's Improvements or make any changes to the
Leased Premises (collectively referred to as "Alterations") without first
obtaining Lessor's prior written consent. All Alterations shall be performed at
the sole expense of Lessee and by Lessor's employees, or, in Lessor's sole
discretion, by Lessor's approved contractors. All Lessee's Improvements and all
Alterations must be aesthetically and structurally compatible with the
surrounding improvements on the Land and be constructed in a good and
workmanlike manner and in compliance with all applicable laws.
6. Assignment and Subletting. Neither this Lease nor the interest
of Lessee in this Lease or in the Leased Premises (including without limitation
Lessee's Improvements), or any part thereof, shall be sold, assigned, sublet or
otherwise transferred by Lessee, in whole or in part, whether by operation of
law or otherwise, without the prior written consent of Lessor, and any such
assignment or sublease without said consent shall be null and void. A change in
the controlling ownership of Lessee, directly or indirectly, shall be deemed to
be an assignment of this Lease. In the event that (a) Lessee shall sell the
business that Lessee is conducting (if such business is permitted under the
terms of this Lease) on the Leased Premises, and (b) Lessee is not then in
default under this Lease, then Lessor agrees to allow Lessee to assign this
Lease to the new owner of such business upon such owner assuming all of the
obligations of Lessee under this Lease, but the transferring Lessee shall not be
released from liability under this Lease.
7. Lessee Compliance. Lessee, at Lessee's sole cost and expense,
shall obtain any and all municipal, county and state permits required for
Lessee's business on the Leased Premises and shall at all times use, occupy and
operate the Leased Premises in compliance with all applicable city, county,
state, federal and local laws, ordinances, statutes, rules and regulations now
in effect or hereafter enacted. Lessee hereby covenants that Lessee and its
agents, employees and contractors will not generate, store, use, treat or
dispose of any "Hazardous Substances" (as hereinafter defined) in, on or at the
Leased Premises, except for Hazardous Substances as are commonly legally used or
stored (and in such amounts as are commonly legally used or stored) as a
consequence of using the Leased Premises for the permitted purposes set forth in
this Lease, but only so long as the quantities thereof do not pose a threat to
public health or to the environment or would necessitate a "response action",
as that term is defined in CERCLA (as hereinafter defined), and so long as
Lessee strictly complies or causes compliance with all laws,
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statues, rules, orders, regulations, ordinances and decrees concerning the use
or storage of such Hazardous Substances. Lessee further covenants that the
Leased Premises shall not be used by Lessee or its agents, contractors or
employees as a dump site or storage site (whether permanent or temporary) for
any Hazardous Substances during the term to this Lease.
Lessee hereby agrees to indemnify Lessor and hold Lessor harmless from
and against any and all losses, liabilities, including strict liability,
damages, injuries, expenses, including reasonable attorneys' fees actually
incurred, costs of any settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against, Lessor by any
person or entity or governmental agency for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or release on or from, the Leased
Premises or Lessee's Improvements of any Hazardous Substance [including, without
limitation, any losses, liabilities, including without limitation strict
liability, damages, injuries, expenses, including without limitation reasonable
attorneys' fees actually incurred, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), any so called federal, state or local "Superfund"
or "Superlien" laws, or any federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to or imposing
liability, including strict liability, or standards of conduct concerning any
Hazardous Substance]; provided, however, that the foregoing indemnity is limited
to matters arising solely from the violation of the covenants and agreements of
Lessee contained in the preceding paragraph and (i) excludes matters caused by
Lessor and (ii) does not extend to Hazardous Substances on the Leased Premises
as of the date Lessee first goes onto the Leased Premises to exercise rights
pursuant to this Lease.
For purposes of this Lease, "Hazardous Substances" shall mean and
include those elements or compounds which are contained in the lists of
hazardous substances or wastes now or hereafter adopted by the United States
Environmental Protection Agency (the "EPA") or the lists of toxic pollutants
designated now or hereafter by Congress or the EPA or which are defined as
hazardous, toxic, pollutant, infectious or radioactive by CERCLA or any
Superfund law or any Superlien law or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to,
or imposing liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter in
effect.
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Lessor shall have the right but not the obligation, and without
limitation of Lessor's rights under this Lease, to enter onto the Leased
Premises or to take such other actions as it deems necessary or advisable to
clean up, remove, resolve or minimize the impact of, or otherwise deal with, any
Hazardous Substance following receipt of any notice from any person or entity
(including without limitation the EPA) asserting the existence of any Hazardous
Substance in, on or at the Leased Premises or any part thereof which, if true,
could result in an order, suit or other action against Lessee and/or Lessor;
provided, however, Lessor agrees that, except in the case of an emergency,
Lessor will take such action only after written notice to Lessee of the alleged
existence of Hazardous Substances and the failure by Lessee within a reasonable
period of time following receipt of such notice to commence, or the failure by
Lessee to thereafter diligently pursue to completion, the appropriate action to
clean-up, remove, resolve or minimize the impact of such Hazardous Substances.
All reasonable costs and expenses incurred by Lessor in the exercise of any such
rights, which costs and expenses result from the violation of the covenants and
agreements of Lessee contained in this paragraph, shall be deemed additional
Rent under this Lease and shall be payable by Lessee upon demand.
Lessee hereby indemnifies Lessor from any and all loss, cost, damage or expense
ever incurred by Lessor as a result of Lessee's breach of the foregoing
covenants and agreements of Lessee, and such indemnification shall survive the
termination or expiration of the term of this Lease.
8. Lessee Maintenance. (a) Lessee, at Lessee's sole cost and
expense, shall maintain and keep in good order and repair the Leased Premises
and Lessee's Improvements. Lessor shall be under no obligation to inspect the
Leased Premises. Lessor shall not be required to make any repairs or
improvements to the Leased Premises.
(b) All maintenance work relating to the Leased Premises and
Lessee's Improvements, except for such work inside the Equipment Building, shall
be performed, at Lessee's sole cost and expense, by Lessor's employees or, in
the sole discretion of Lessor, by Lessor's approved contractors.
9. Utilities and Liens. Lessee shall pay all utility bills
relating to the Leased Premises including, but not limited to, telephone,
electricity and fuel. If Lessee fails to pay any of said utility bills, Lessor
may pay the same and Lessee shall immediately reimburse Lessor for all such
payments. Lessee shall not create or permit to be created or to remain, and,
shall promptly discharge, at its sole cost and expense, any lien,
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encumbrance or charge upon the Land or Leased Premises, or any part thereof or
upon Lessee's rights under this Lease that arises from the use or occupancy of
the Leased Premises by Lessee or by reason of any labor, service or material
furnished or claimed to have been furnished to or for the benefit of Lessee or
by reason of any construction, repairs or demolition by or at the direction of
Lessee.
10. Lessor's Access to Leased Premises. (a) Lessor shall at all
times throughout the term of this Lease have access to the Leased Premises for
the performance of Lessor's obligations. In the exercise of such rights, Lessor
shall not be liable for damages to any improvements or personal property which
Lessee may place on the Leased Premises or for interference with or interruption
of any activities which Lessee may conduct on the Leased Premises.
(b) Lessor may enter the Leased Premises at reasonable
hours to exhibit same to prospective purchasers. Lessor shall further have
access to the Leased Premises at all reasonable times to make repairs required
of Lessor under the terms hereof and to otherwise inspect the Leased Premises.
11. Casualty. If fifty percent (50%) or more of the floor area of
Lessee's Equipment Building is destroyed or rendered wholly untenantable by
storm, fire, lightning, earthquake or other casualty or cause whatsoever
("Casualty"), Lessee shall have the option to rebuild the Equipment Building or
terminate this Lease, subject to the conditions set forth in this Lease. Lessee
shall have thirty (30) days from the date of the Casualty within which to notify
Lessor in writing that it is exercising its option to terminate the Lease and if
Lessee fails to notify Lessor of such termination within such thirty (30) day
period, then this Lease shall not be terminated and Lessee, at Lessee's sole
cost and expense, shall restore the Equipment Building to substantially the same
condition as before the Casualty as soon as practicable. If less than fifty
percent (50%) of the floor area of Lessee's Equipment Building is destroyed or
rendered wholly untenantable by Casualty, Lessee, at Lessee's sole cost and
expense, shall restore the Equipment Building to substantially the same
condition as before the Casualty as soon as practicable.
12. Insurance. (a) Lessee agrees to acquire and maintain during
the term of this Lease, at Lessee's sole cost and expense, commercial general
liability insurance covering the liability of Lessor and Lessee for bodily
injury or death of persons and for damage to or destruction of property
occurring on the Leased Premises and arising out of the use or occupation of the
Leased Premises with a Combined Single Limit per occurrence for bodily
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injury liability and property damage liability of not less than $2,000,000.00.
Lessee shall have Lessor named as an additional insured under such insurance
policy.
(b) All insurance policies procured and maintained by Lessee
pursuant to this Section 12 shall be carried with an insurance company licensed
to do business in the State of Georgia having a rating from Best's Insurance
Reports of not less than A-/VII, and shall be endorsed to cover the liability
assumed by Lessee under the provisions of this Lease. The endorsement shall be
worded substantially as follows:
"During the effective period of the policies referenced herein, it is
agreed that this insurance specifically covers liability assumed by the
insured under the provisions of a certain agreement entered into by the
insured and Southern Company Services, Inc., dated*."
(c) Lessee shall further carry, at Lessee's sole cost and expense,
all-risk hazard insurance for the full replacement value of all improvements
located on the Leased Premises. Such insurance shall be in the name of Lessor
and Lessee as their interests may appear.
(d) Each of the above required insurance policies shall be
endorsed with a provision whereby the insurance company shall notify Lessor at
least ten (10) days prior to the effective date of cancellation or material
change in any of the said policies. As evidence of this insurance and prior to
Lessee's occupancy of the Leased Premises, Lessee shall submit to Lessor a
certificate providing the above coverage which certifies that the said policies
have been properly endorsed to meet all requirements set forth herein. Renewals
of such policies shall be delivered to Lessor at least thirty (30) days prior to
the expiration of each respective policy term. Proof of payment of the premium
therefor shall be delivered to Lessor from time to time upon written request.
To the extent of the insurance required to be maintained by Lessee (but in no
event in excess of the fullest extent permitted under O.C.G.A. Section 13-8-2),
Lessee hereby releases Lessor, its agents and employees from any liability for
damage to property or injury to persons, regardless of the cause of such damage
or injury. Except as provided in the sentence immediately preceding this
sentence, the provisions of Paragraph 11 and the waivers and indemnities in this
Lease shall not apply to damages arising out of bodily injury to persons or
damage to property caused by or resulting from the sole negligence of Lessor,
its agents or employees to the extent O.C.G.A. Section 13-8-2 is applicable
thereto. In no event shall the insurance requirements
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of this paragraph be deemed to limit the liability or responsibility of Lessee
in any manner.
13. Indemnification. Lessee shall, and does hereby agree to,
indemnify, save harmless and defend Lessor (its agents and employees) from any
and all loss, cost, claim, suit, damage or expense [including but not limited to
the payment of any sum or sums of money to any person whomsoever (including but
not limited to third persons, subcontractors, Lessee, Lessor, and agents and
employees of them)] arising from or due to injuries to persons (including but
not limited to death) or damage to property (including but not limited to
property of Lessor) in any way attributable to or arising out of the use or
occupancy of the Leased Premises [including but not limited to any and all loss,
cost, claim, suit, damage or expense arising from the claimed or actual, sole or
joint, negligence of Lessee (Lessee's agents, employees, sub-contractors,
invitees and guests) or negligence of Lessor (its agents, employees or
sub-contractors) or any combination of these including (but without limiting the
generality of the foregoing) all claims for injuries to persons or damage to
property, liens, garnishments, attachments, claims, suits, costs, attorneys
fees, cost of investigation and of defense]. Lessee shall be responsible for the
payment of any and all loss, cost, claim, suit, damage or expense of any nature
and character in any way related to the Leased Premises or attributable to or
asserted against Lessor or Lessee (or both).
14. Default and Remedies. In the event Lessee shall default in the
performance of any of its covenants or obligations contained in this Lease and
such default shall continue for five (5) days after written notice thereof has
been given by Lessor to Lessee, then in such event, at Lessor's option:
(i) Lessor may terminate this Lease by written notice to
Lessee, in which event Lessee shall immediately surrender the Leased
Premises, and if Lessee fails to do so, Lessor may, without prejudice
to any other right or remedy which Lessor may have, enter upon and take
possession of the Leased Premises (by force, summary proceedings,
ejectment or otherwise) and remove Lessee without being liable for
prosecution or any claim for damages therefor, and Lessee hereby waives
its rights to any legal proceedings in connection with such reentry.
(ii) Lessor may enter upon and take possession of the
Leased Premises, without termination of this Lease, and remove Lessee
by force, summary proceedings, ejectment or otherwise, without being
liable for prosecution or any claim for damages therefor, and Lessee
hereby waives its rights to any legal proceedings in connection with
such reentry. If
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Lessor elects, Lessor may take such action as is necessary to relet the
Leased Premises and may so relet the Leased Premises at such rent and
upon such terms and conditions as Lessor may deem advisable and receive
the rent therefor. Upon such reletting, all rentals received by Lessor
from such reletting shall be applied first to the payment of any
expenses of such reletting, including but not limited to brokerage fees
and attorneys' fees and the costs of alterations and repairs, second to
the payment of any charges due and unpaid hereunder, and the residue,
if any, shall be held by Lessor and applied against future charges
under this Lease.
15. Taxes. Lessee agrees to assume and pay any additional taxes or
license fees that may be assessed against the Leased Premises as a result of the
use thereof by Lessee.
16. Termination. Either party shall have the right to terminate
this Lease for any cause whatsoever, or without cause, at any time upon giving
the other party one hundred and eighty (180) days' notice in writing of such
termination.
17. Notices. Lessee hereby appoints as Lessee's agent to receive
service of all dispossessory or distraint proceedings and notices hereunder the
person in charge of the Leased Premises at the time or occupying the Leased
Premises, and if no person is in charge of or occupying the Leased Premises,
then such service or notice may be made by attaching the same on the main
entrance of the Equipment Building. A copy of all notices under this Lease shall
be sent to the parties at the following addresses:
LESSEE: Knology Holdings, Inc.
0000 X.X. Xxxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxx
General Council
LESSOR: Georgia Power Company
Xxxx Xxxxxxxxxx
00xx Xxxxx
XXX 00000
Xxxx: Xxx Xxxxxx
000 Xxxxx XxXxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
or at such other address or to the attention of such other person as the parties
shall notify pursuant to this paragraph. Wherever this Lease provides for the
giving of notice by the parties, the same shall be deemed received by the other
party upon the date
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said notice shall have been duly mailed, postage prepaid, through the United
States mail.
18. Subordination. Lessee's rights hereunder shall be subject to
any mortgage, indenture or deed to secure debt which is now, or may hereafter
be, placed upon the Leased Premises by Lessor.
19. Surrender of Leased Premises. (a) Upon the termination or
expiration of the term of this Lease, Lessee shall vacate the Leased Premises
and surrender the Leased Premises to Lessor in as good order and condition as on
the date hereof, reasonable wear and tear excepted.
(b) Upon termination or expiration of the term of this
Lease, provided that Lessee is not in default under this Lease, Lessee may
remove all trade fixtures and personal property which it owns and has placed in
or on the Leased Premises; provided, however, that Lessee repairs all damage to
the Leased Premises caused by such removal, thereby restoring the Leased
Premises to as good order and condition as on the date hereof, reasonable wear
and tear excepted. Any improvements made by Lessee in or on the Leased Premises
(including without limitation Lessee's Improvements) shall become the sole
property of Lessor and absolute beneficial ownership of such improvements shall
pass to Lessor. All property of Lessee remaining in or on the Leased Premises
after expiration of the term or earlier termination of this Lease (including
without limitation Lessee's Improvements) shall be deemed conclusively abandoned
and may be removed by Lessor and disposed of by Lessor or, at Lessor's option,
retained by Lessor for Lessor's own account, without compensation to Lessee, and
Lessee shall reimburse Lessor for the actual cost of removing and disposing of
the same.
20. High Voltage Safety Act. Lessee hereby agrees and covenants
not to use, and will prohibit agents, employees and contractors of Lessee from
using, any tools, equipment or machinery within ten (10) feet of Lessor's
overhead conductors located on or in the vicinity of the Leased Premises. Lessee
agrees to comply with Official Code of Georgia Section 46-3-30 et seq. (HIGH
VOLTAGE SAFETY ACT), and the Rules and Regulations of the State of Georgia
Section 300-3-7.01 et seq. Lessee further agrees to notify any contractors that
may be employed by Lessee of the existence of said code sections and
regulations, and to require that all work be performed in compliance with said
code sections and regulations by including same as a requirement in any contract
let as a result of said bid. Lessee further agrees and covenants to warn all
persons whom Lessee knows or should reasonably anticipate for any reason may
conduct any activity whatsoever on or in the vicinity of the Leased Premises of
the
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fact that such conductors are (a) electrical conductors, (b) energized, (c)
uninsulated, and (d) dangerous.
21. Condemnation. If the whole of the Leased Premises, or such
portion thereof as will make the Leased Premises unusable for the purposes
herein leased, is condemned by any legally constituted authority, or conveyed to
such authority in lieu of such condemnation, then in either of said events, the
term of this Lease shall end on the date when possession thereof is taken by the
condemning authority. In the event any portion of the Leased Premises is taken
by condemnation or a conveyance in lieu thereof (other than as set forth in the
preceding sentence), at Lessor's option, Lessor may (i) terminate this Lease, or
(ii) if the Leased Premises may still be used for Lessee's intended use
therefor, elect to continue this Lease and Lessee shall promptly restore the
remaining portion of Lessee's Improvements. In the event of any such taking of
all or any portion of the Leased Premises or conveyance in lieu thereof, Lessor
shall be entitled to all compensation which may be paid or made in connection
therewith, and Lessee shall have no claim for the value of the unexpired
leasehold, and hereby assigns to Lessor any right Lessee may have to participate
in any award paid on account of any such taking. Lessee shall, however, be
permitted to pursue a claim for improvements placed on the Leased Premises at
Lessee's sole cost and expense, provided that such claim shall not reduce or
diminish Lessor's award.
22. Signage. With the exception of signs already in place, Lessee
shall place no signs upon the outside walls or roof of the Equipment Building or
on the Leased Premises except with the prior written consent of Lessor. Any and
all signs placed on the Leased Premises by Lessee shall be maintained in
compliance with the applicable local, city, county, state or federal statutes,
ordinances, laws, rules and regulations governing such signs. Lessee shall be
responsible to Lessor for any damage caused by the installation, use or
maintenance of said signs, and Lessee agrees upon removal of said signs to
repair all damage incident to such removal.
23. Holdover. In the event Lessee remains in possession of the
Leased Premises after termination or expiration of the term of this Lease,
without any express agreement of the parties, Lessee shall be a tenant at
sufferance, at a daily rental rate equal to one hundred dollars ($100.00).
24. Lessor's Reserved Easements. Lessor hereby retains unto
itself, its successors and assigns, for the benefit of Lessor, its successors,
assigns and such others (such as but not limited to Lessor's agents,
contractors, subcontractors, licensees and permittees) as Lessor shall from time
to time
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designate, the rights, interests and easements from time to time and at any
time, upon, over, across and under the Leased Premises (i) to construct,
install, use, patrol, obtain access to, operate, maintain, repair, inspect,
renew, rebuild, reconstruct, replace, improve, upgrade, enhance and add onto
overhead and underground electric transmission and distribution lines, poles,
towers, frames, manholes, conduits, fixtures, appliances, wires, cables and
equipment, and protective wires and devices, and communications lines, cables
and equipment (including, without limitation, "Communications Facilities" as
hereinafter defined); and (ii) to construct, install, use, patrol, obtain access
to, operate, maintain, repair, inspect, renew, rebuild, reconstruct, replace,
improve, upgrade, enhance and add onto additional transmission, distribution,
and communications lines, poles, towers, frames, manholes, conduits, fixtures,
appliances, wires, cables and equipment, and protective wires and devices,
including, without limitation, Communications Facilities ["Communications
Facilities" shall mean (x) equipment, systems or facilities used for or in
connection with communications by radio, including without limitation, microwave
towers, mobile base radio towers, radio base repeater towers, telemeter
transmitters, multiple address system radios or power line carrier equipment,
and any permits, licenses or leases relating to any one or more of the
foregoing, and (y) equipment, systems or facilities used for or in connection
with light wave communications over optical fibers, including without
limitation, optical fibers, optronic or photo-optronic equipment, repeaters,
junctions, splice enclosures or equipment for the conversion of light signals to
or from radio or electronic signals, and any permits, licenses or leases
relating to any one or more of the foregoing], and, in addition to and not in
limitation of the foregoing, the terms and provisions of the form of Easement
for Right-of-Way attached hereto as Exhibit "D" and by reference made a part
hereof shall apply to such easements as if "Lessor" referred to Lessor and "the
Undersigned" referred to Lessee, and with such changes as may be necessary to
reflect that such easements were reserved by Lessor rather than granted by
Lessee.
25. Relocation. Upon prior notice to Lessee, Lessor reserves the
right at any time to relocate the Leased Premises or any portion of the Leased
Premises (including without limitation Lessee's Improvements); provided,
however, that Lessor agrees to use good faith efforts to relocate the Leased
Premises, or such portion thereof, as soon as practicable to another location on
the Land. Lessee shall at its sole expense pay for all costs incurred by Lessor
or Lessee relating to said relocation.
26. No Estate. This Lease shall create a landlord-tenant
relationship between the parties hereto and no estate shall pass out of Lessor.
Lessee has only a usufruct, not subject to levy
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and sale, and not assignable by Lessee except with Lessor's prior written
consent.
27. Waiver. No failure of Lessor to exercise any power given to
Lessor hereunder, or to insist upon strict compliance by Lessee with its
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver of Lessor's right to demand exact
compliance with the terms hereof.
28. Severability. In the event any one or more of the provisions
contained in this Lease shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof and this Lease shall be continued as
if such invalid, illegal, or unenforceable provisions had never been contained
herein.
29. Entire Agreement. This Lease contains the entire agreement of
the parties hereto and no representations, inducements, promises or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. This Lease may not be modified except by an amendment signed by both
Lessor and Lessee.
30. Time is of the Essence; Georgia Law. Time is of the essence in
this Lease. This Lease shall be governed by the laws of the State of Georgia. No
remedy conferred upon or reserved to Lessor in this Lease, at law or in equity
is intended to be exclusive of any other available remedies, but each and every
remedy shall be cumulative and shall be in addition to every other remedy given
in this Lease or now or hereafter existing in law or in equity.
31. Counterparts. This Lease may be simultaneously executed in
several counterparts, and all such counterparts shall constitute but one and the
same instrument.
32. Parties. "Lessor" as used in this Lease shall include Lessor,
its representatives, assigns, and successors in title to the Leased Premises.
"Lessee" shall include Lessee, its representatives, and if this Lease shall be
validly assigned in accordance with the provisions of this Lease, shall include
also Lessee's assigns or successors under this Lease. "Lessor" and "Lessee"
include male and female, singular and plural, corporation, partnership or
individual, as may fit the particular parties.
33. Confidentiality. It is agreed by all the parties hereto that,
absent a bona fide dispute between the parties to
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15
this Lease as to the terms of this Lease, the terms of this Lease shall not be
disclosed to any individual, entity or organization other than the parties
hereto and their counsel without the written consent of all parties to this
Lease.
Nothing in this provision, however, shall in any way be construed to
limit the ability of any party to this Lease upon specific written request from
any of the entities listed herein below, to divulge any aspect of this Lease,
including this Lease in its entirety and all other documents relating to the
transactions contemplated hereby, to:
1. Any state, federal or local governmental authority,
department, board, commission, court, officer or agency,
including, but not limited to, the Internal Revenue Service
and the Revenue Department of the State of Georgia;
2. Any attorney, accountant, auditor or other licensed
professional consultant to the parties hereto;
3. Any partner in any party hereto; or
4. Any lender to a party hereto;
provided that disclosure of this Lease is material to the business of the party
and disclosure of this Lease serves a significant and valid business purpose in
the party's dealings with the entity to whom this Lease is disclosed. In
addition, nothing in this provision shall in any way be construed to limit the
ability of any party to this Lease to divulge or disclose any aspect of this
Lease, including the Lease in its entirety and all other documents relating to
the transactions contemplated hereby, if, in the discretion of such party or its
tax advisors, such disclosure or divulgence is necessary to maintain such
party's tax position in response to inquiries from, or is necessary to sustain
such party's tax position upon scrutiny by, the Internal Revenue Service or the
Revenue Department of the State of Georgia.
No party hereto shall be under any obligation to obtain a covenant of
nondisclosure from any party to which it discloses any information under the
exceptions listed above.
34. Additional Terms and Conditions. In addition to the terms and
conditions set forth in the body of this Lease, this Lease and Lessee's rights
hereunder shall be subject to the Additional Terms and Conditions set forth in
Exhibit "C" attached hereto and by reference made a part hereof. In the event of
a conflict between a term, condition or provision set forth in the
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16
body of this Lease and a term, condition or provision set forth in Exhibit "C",
the term, condition or provision set forth in the body of this Lease shall
prevail except to the extent that Exhibit "C" expressly provides by specific
reference that the term, condition or provision set forth therein is in lieu of
the specific term, condition or provision set forth in the body of this Lease
with which it conflicts.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals, the day and year first above written.
LESSEE:
Signed, sealed and KNOLOGY HOLDINGS, INC.,
delivered in the a Delaware corporation
presence of:
/s/ Xxxxx Xxxxxx By: /s/ Xxxx X. XxXxxxx
------------------------------ ------------------------------------
Witness Name: Xxxx X. XxXxxxx
----------------------------------
Title: VP - Construction
/s/ Xxxxx Xxxxxx --------------------------------
------------------------------
Notary Public Date: 10/5/98
-----------------------------------
My Commission Expires:
July 21, 2002
------------------------------
(NOTARIAL SEAL)
LESSOR:
Signed, sealed and SOUTHERN COMPANY SERVICES, INC., an
delivered in the Alabama corporation
presence of:
By:
------------------------------ ------------------------------------
Witness Name:
----------------------------------
Title:
--------------------------------
------------------------------
Notary Public Date:
-----------------------------------
My Commission Expires:
------------------------------
(NOTARIAL SEAL)
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17
Exhibit "A"
[Legal Description of Land]
18
Exhibit "B-1"
(Lessee's Improvements)
KNOLOGY Holdings, Inc. improvements include the following:
- One 25 foot by 50 foot prefabricated concrete building
- One 125 kW auxiliary generator
- Four fiber pull boxes
- Four inch PVC conduit for ingress and egress and connecting
KNOLOGY's building to the Georgia Power POP building
- Aerial and buried communications cable for ingress and egress
and connecting KNOLOGY's building to the Georgia Power POP
building
19
Exhibit "C"
[Additional Terms and Conditions]
20
Exhibit "D"
FORM TRANSMISSION EASEMENT
Acct No.______________________Draft No.__________________R.C. No._______________
EASEMENT FOR RIGHT-OF-WAY
STATE OF GEORGIA,
_________________COUNTY.
For and in consideration of the sum of ______________________________
($________) Dollars, in hand paid by GEORGIA POWER COMPANY, a Georgia
corporation (hereinafter referred to as "Georgia Power," which term shall
include successors and assigns), the receipt and sufficiency of which is hereby
acknowledged, ______________________________ (hereinafter referred to as "the
Undersigned," which term shall include heirs, successors and assigns), whose
Post Office address is ______________________________ does hereby grant to
Georgia Power the rights to, from time to time, construct, operate, maintain,
renew and rebuild overhead and underground electric transmission, distribution
and communication lines, together with necessary or convenient towers, frames,
poles, wires, manholes, conduits, fixtures, appliances, and protective wires and
devices in connection therewith (all being hereinafter referred to as "the
Facilities") upon or under a tract of land being more fully located and
described below (hereinafter referred to as "the Leased Premises"), together
with the right of Georgia Power to grant, or permit the exercise of, the same
rights, either in whole or in part, to others, and said rights are granted to
Georgia Power together with all rights, privileges and easements necessary or
convenient for the full enjoyment and use of the Leased Premises for the
purposes above described, including the right of ingress and egress to and from
the Leased Premises over lands of the Undersigned and the right to cut away and
keep clear, remove and dispose of all trees and undergrowth and to remove and
dispose of all obstructions now on the Leased Premises or that may hereafter be
placed on the Leased Premises by the Undersigned or any other person. Further,
Georgia Power shall have the right to cut, remove and dispose of dead, diseased,
weak or leaning tree (hereinafter referred to as "danger trees") on lands of the
Undersigned adjacent to the Leased Premises which may now or hereafter strike,
injure, endanger or interfere with the maintenance and operation of any of the
Facilities located on the Leased Premises, provided that on future cutting of
such danger trees Georgia Power shall pay to the Undersigned the fair market
value of the merchantable timber so cut, timber so cut to become the property of
Georgia Power. The Undersigned shall notify Georgia Power of any party with whom
it contracts, and who owns as a result thereof, any danger trees to be cut as
set forth above. Georgia Power shall also have, and is hereby granted, the right
to install, maintain and use anchors or guy wires on lands of the Undersigned
adjacent to the Leased Premises, and the right, when required by law or
government regulations, to conduct scientific or other studies, including but
not limited to environmental and archaeological studies, on or below the ground
surface of the Leased Premises.
The Leased Premises are shown on a plat made by or for Georgia Power,
and on file in Georgia Power's Land Department, and are as described as
follows:
Georgia Power shall pay or tender to the Undersigned or owner thereof a
fair market value for any growing crops, fruit trees or fences cut, damaged or
destroyed on the Leased Premises by employees of Georgia Power and its agents,
in the construction, reconstruction, operation and maintenance of the
Facilities, except those crops, fruit trees and fences which are an obstruction
to the use of the Leased Premises as herein provided or which interfere with or
may be likely to interfere with or endanger the Facilities or their proper
maintenance and operation, provided the Undersigned shall give Georgia Power
written notice of the alleged damage within thirty (30) days after the alleged
damage shall have been done. The Undersigned shall notify Georgia Power of any
party with whom the Undersigned contracts and who owns, as a result thereof, any
growing crops, fruit trees or fences; and the Undersigned shall inform said
party of the notification provision set forth herein. Any growing crops, fruit
trees or fences so cut or damaged on the Leased Premises in the construction,
reconstruction, operation and maintenance of the Facilities are to remain the
property of the owner thereof.
It is agreed that part of the within named consideration is in full
payment for all timber cut or to be cut in the initial clearing and construction
of the Facilities and that timber so cut is to become the property of Georgia
Power. The Undersigned will notify Georgia Power in the event the Undersigned
has contracted with another party who owns as a result thereof the timber to be
so cut.
The Undersigned has the right to use the Leased Premises for
agricultural or any other purposes not inconsistent with the rights hereby
granted, provided such use shall not injure or interfere with the proper
operation, maintenance, repair of, extensions or additions to the Facilities;
and provided further that no buildings or structures other than fences (which
shall not exceed eight (8) feet in height and shall neither obstruct nor
otherwise interfere with any of the rights granted to Georgia Power hereby) may
be erected upon the Leased Premises.
The Undersigned expressly grants to Georgia Power the right to take any
action, whether at law or in equity, and whether by injunction, ejectment or
other means, to prevent the construction, or after erection thereof to cause the
removal, of any building or other structure(s) located on the Leased Premises
(other than fences as provided for herein), regardless of whether the offending
party is the Undersigned or not. The undersigned will notify Georgia Power in
the event the Undersigned contracts with a third party who owns, as a result
thereof, any buildings or other such structures. The Undersigned acknowledges
and agrees that said rights are necessary for the safe and proper exercise and
use of the rights, privileges, easements and interests herein granted to
Georgia Power.
Georgia Power shall not be liable for or bound by any statement,
agreement or understanding not expressed herein.
TO HAVE AND TO HOLD forever unto Georgia Power the rights, privileges.
easements, powers, and interests granted herein, which shall be a covenant
running with the title to the Leased Premises.
The Undersigned warrants and will forever defend the title to the
rights, privileges an easements granted herein to Georgia Power against the
claims of all persons whatsoever.
IN WITNESS WHEREOF, the Undersigned ____________ hereunto set ________
_____________ hand(s) and seal(s), this ___________________ day of
__________________, 19 __.
Signed, sealed and delivered in the presence of:
(SEAL)
-------------------------------- ------------------------------------
Witness
(SEAL)
-------------------------------- ------------------------------------
Notary Public
