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EXHIBIT 10.10
RETURN RECORDED INSTRUMENT TO
Hatcher, Stubbs, Land, Xxxxxx &
Xxxxxxxxxx
Xxxxxx X. Xxxx, Xx.
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered into this 7 day of
November, 1996, by and between XXXXXX X. XXXXXX ("Lessor") and AMERICAN CABLE
COMPANY, INC. ("Lessee").
WHEREAS, Lessor owns certain real property located in Muscogee County,
Georgia being known as 0000 00xx Xxxxxx, and being more particularly described
on Exhibit "A", attached hereto (the Lessor's Property); and
WHEREAS, Lessee desires to lease from Lessor and Lessor desires to lease
to Lessee a portion of Lessor's Property for the hereinafter described
purposes.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee agree as
follows:
1. Property. Subject to the following terms and conditions,
Lessor leases to Lessee the property which is described in Exhibit "B" attached
hereto (the "Property").
2. Use. The Property may be used by Lessee to construct, operate
and maintain a building and facilities to house Lessee's equipment and other
property (the "Improvements"), including without limitation, fiber optic cable
and equipment for the purpose of transmitting and receiving various types of
communication, digital, electronic and/or other signals in any and all
frequencies; and to build, construct or do any other related facilities and
activities (the "Intended Use"). Lessor agrees to cooperate with Lessee in
obtaining, at Lessee's expanse, all licenses and permits required for Lessee's
use of the Property (the "Governmental Approvals"). Lessee represents and
warrants that the Intended Use will not adversely affect or interfere with
Lessor's current use of Lessor's Property.
3. Initial Term. The initial term of this Lease shall be five
(5) years, commencing on the earlier of the date that Lessee has completed
construction of the Improvements, or the 1st day of December, 1996
("Commencement Date") and terminating on the fifth anniversary of the
Commencement Date ("Initial Term").
4. Renewal Terms. Lessee shall have the right to extend this
Lease for four (4) additional five (5) year terms ("Renewal Terms"). Each
Renewal Term shall be on the same terms and conditions as set forth in this
Lease except that Rent shall increase as provided in Paragraph 5(c). This
Lease shall automatically be renewed for each successive Renewal Term unless
Lessee notifies Lessor of Lessee's intention not to renew the Lease at least 30
days prior to the expiration of the Initial Term or the Renewal Term which is
then in effect.
5. Consideration.
(a) Upon the Commencement Date, Lessee shall pay Lessor
the sum of Two Hundred and No/100 Dollars ($200.00) per month as rental
("Rent"). Rent shall be payable in advance to Lessor at Lessor's address as
specified in Paragraph 20 below, on the first day of each month during the
Initial Term or any Renewal Term beginning on the first day of the month
following the Commencement Date;
(b) If this Lease is terminated for any reason other than
Lessee's default, then all Rent paid in advance shall be prorated to the date
of termination and shall be refunded to Lessee;
(c) The Rent payable by Lessee during each successive
year of the Initial Term and any Renewal Term commencing on the first (1st) day
of the thirteenth (13th) month of the Initial Term, shall be adjusted at that
time and every twelve (12) months thereafter (the "Adjustment Month") for the
remainder of the Initial Term and any Renewal Term as follows: the monthly
installment of Rent for the immediately preceding twelve (12) month period
shall be increased by multiplying said amount times a fraction, the denominator
of which is the Consumer Price Index number, published by the U.S. Department
of Labor, Bureau of Labor Statistics in the Consumer Price Index for All Urban
Consumers - U.S. City Average, All Items (1982-84=100) (the "CPI"), for the
calendar month preceding the Commencement Date and the numerator of which is
the CPI number for the month preceding the Adjustment Month of each successive
12-month period for which the computation is made. If the CPI is discontinued,
then Lessor and Lessee shall mutually designate a comparable index to be used
in lieu thereof for the purposes hereof; and
(d) Lessee shall pay to Lessor on the Commencement Date a
prorated amount of the Rent for the period from the Commencement Date to the
end of the calendar month in which the Commencement Date occurs.
6. Lessor's Representations and Warranties. Lessor represents
and warrants that (i) the Intended Use is not prohibited by any covenants,
restrictions, reciprocal easements, servitudes, subdivision rules or
regulations; (ii) there are no easements, licenses, covenants, rights of use or
other encumbrances on the Property which will interfere with or constructively
prohibit the Intended Use; (iii) the Property is zoned C-3; (iv), the
execution, delivery and full performance of this Lease by Lessor does not
constitute a violation of any contract, judgment, decree, security deed or
other restriction of any kind of which Lessor is a party or of which Lessor is
bound; (v) Lessor has executed and entered into this Lease free from fraud,
undue influence, duress, coercion or any other defenses to the execution of
this Lease; and (vi) this Lease constitutes the valid binding obligation of
Lessor enforceable against Lessor in accordance with its terms.
7. Conditions Precedent. Lessee's obligation to perform under
this Lease shall be subject to and conditioned upon:
(a) Lessee securing appropriate approvals for the
Intended Use from any federal, state or local regulatory authority having
jurisdiction over the Intended Use;
(b) Lessee obtaining a title report or commitment for a
title policy which shows, in Lessee's opinion, no defects of title or any liens
or encumbrances which adversely affects the Intended Use or Lessee's ability to
obtain leasehold financing;
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(c) Lessee having the Property surveyed and soil borings
and analysis tests run which show, in the opinion of the Lessee, that the
Property is suited for the Intended Use;
(d) Lessee having an environmental audit of the Property
performed by an environmental consulting firm of Lessee's choice which reveals
that the Property is not contaminated with Hazardous Materials; and
(e) Lessee confirming that the Property is properly zoned
so as to allow the Intended Use. If the Property is not so zoned, then Lessee
shall have the option of rescinding this Lease and having no liability
hereunder or, at Lessee's expense, seek to amend the applicable zoning
ordinance or obtain the appropriate variance or exception so as to allow the
Intended Use. If Lessee elects to so amend or seek to obtain such variance or
exception, and the same is unsuccessful, the Lessee may rescind this Lease and
have no further liability hereunder.
If any of the above conditions are not satisfied, Lessee shall have no
obligations under this Lease and shall be entitled to restitution of any Rent
or other consideration which has been paid to Lessor.
8. Conditions Subsequent. In the event that the Intended Use is
actually or constructively prohibited through no fault of Lessee or the
Property is, in Lessee's opinion, unacceptable to Lessee then this Lease shall
terminate and be of no further force or effect and Lessee shall be entitled to
a refund from Lessor of any deposits or prorated Rent paid to Lessor prior to
the date upon which Lessee gives Lessor notice of its intent to terminate this
Lease pursuant to this Paragraph.
9. Interference. Lessor shall not use, nor shall Lessor permit
its lessees, licensees, invitees or agents to use any portion of adjacent real
property owned by Lessor in any way which interferes with the operations of
Lessee. Such interference shall be deemed a material breach of this Lease by
Lessor and Lessor shall have the responsibility to terminate said interference.
In the event any such interference does not cease or is not promptly rectified,
Lessor acknowledges that continuing interference will cause irreparable injury
to Lessee, and Lessee shall have the right, in addition to any other rights
that it may have at law or in equity, to bring action to enjoin such
interference or to terminate this Lease immediately upon notice to Lessor.
10. Improvements; Utilities; Access.
(a) Lessee shall have the right, at Lessee's sole cost
and expense, to erect and maintain the Improvements on the Property. The
Improvements shall remain the exclusive property of the Lessee, and Lessee
shall have the right but not the obligation to remove all or part of the
Improvements following any termination of this Lease. Upon the termination of
this Lease, Lessee may offer to sell to Lessor any portion of the Improvements
at a mutually acceptable price.
(b) Lessor hereby grants to Lessee the right and easement
to install utilities, at Lessee's expense, improve present utilities on the
Property (including hut not limited to the installation of emergency power
generators), and to permanently place utilities on (or to bring utilities
across or under) the Lessor's Property to service the Property and the
Improvements. Lessor shall, upon Lessee's request, execute a separate written
easement to the utility company providing the service or Lessee in a form which
may be filed of record evidencing this right.
(c) Lessor hereby grants to Lessee and Lessee's
successors, sublessees and assigns at all times during the Initial Term and any
Renewal Term, the nonexclusive right and easement of ingress, egress, and
access from the Property across the Lessor's Property to an open and improved
public road which presently exists (the Basements) which Easement shall be
adequate to service the Property and the Improvements. If no such public road
exists or ceases to exist in the future, Lessor will grant an appropriate
easement to Lessee, Lessee's successors, sublessees and assigns so that Lessee
may, at its own expense, construct a suitable private access drive to the
Property and the Improvements. This Paragraph grants and is evidence of the
granting of an Easement for ingress, egress and access, however, Lessor agrees,
upon Lessee's request, that Lessor shall execute an easement evidencing this
right. Lessor shall maintain access to the Easement in a free and open
condition so that no interference is caused to Lessee by other lessees,
licensees, invitees or agents of the Lessor which may utilize the Easement.
11. Termination. Except as otherwise provided herein, this Lease
may be terminated, without any penalty or further liability, upon written
notice as follows:
(a) By either party upon a default of any covenant or
term hereof by the other party which default is not cured within 60 days of
receipt of written notice of default (without, however, limiting any other
rights available to the parties pursuant to any other provisions hereof);
provided, that if the defaulting party commences good faith efforts to cure the
default within such period and diligently pursues to completion such cure, the
non-defaulting party shall no longer be entitled to declare a default;
(b) Upon 30 days' written notice by Lessee to Lessor if
Lessee is unable to obtain or maintain through no fault of Lessee any license,
permit or other Governmental Approval necessary to the construction and
operation of the Improvements or Lessee's business; or
(c) By Lessee for any reason or no reason at all upon six
(6) months advance written notice from Lessee to Lessor.
12. Assignment; Subleases. Lessee at its sole discretion shall
have the right to assign its interest in this Lease or to sublease the Property
and space in or on the Improvements to others who would use the Property for
the Intended Use. Lessee's sublessee(s) and assignee(s) shall be subject to
the terms hereof and entitled to rights provided herein as if said sublessee or
assignee were the Lessee under this Lease.
13. Taxes. Lessee shall pay any personal property taxes assessed
on, or any portion of such taxes directly attributable to, the Improvements.
Lessor shall pay when due all real and other personal property taxes and all
other fees and assessments attributable to the Property. Lessee shall pay as
additional Rent any increase in real property taxes levied against the Property
which are directly attributable to the Improvements or Lessee's use of the
Property and Lessor agrees to furnish proof of such increase to Lessee.
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14. Destruction of Premises. If the Property or the Improvements
are destroyed or damaged so as to hinder the effective use of the Improvements
in Lessee's judgment, Lessee may elect to terminate this Lease as of the date
of the damage or destruction by so notifying the Lessor. In such event, all
rights and obligations of Lessee to Lessor shall cease as of the date of the
damage or destruction and Lessee shall be entitled to the reimbursement of any
Rent prepaid by Lessee.
15. Condemnation. If a condemning authority takes all of the
Property, or a portion sufficient in Lessee's determination, to render the
Property in the opinion of Lessee unsuitable for the use which Lessee was then
making of the Property, this Lease shall terminate as of the date the title
vests in the condemning authority. Lessor and Lessee shall share in the
condemnation proceeds in proportion to the values of their respective interests
in the Property (which for Lessee shall include, where applicable, the value of
its Improvements, moving expenses, prepaid rent and business dislocation
expenses). A sale of all or part of the Property to a purchaser with the power
of eminent domain in the face of the exercise of eminent domain power shall be
treated as a taking by condemnation for the purposes of this Paragraph.
16. Hold Harmless. Lessee agrees to hold Lessor harmless from any
and all claims arising from the installation, use, maintenance, repair or
removal of the Improvements, except for claims arising from the negligence or
intentional acts of Lessor, and Lessor's employees, agents or independent
contractors.
17. Environmental Compliance. Lessor warrants and represents that
the Property, the Easement and the improvements thereon are free of
contaminants, oils, asbestos, radon, PCB's, hazardous substances or wastes as
defined by federal, state or local environmental laws, regulations or
administrative orders or other materials the removal of which is required or
the maintenance of which is prohibited, regulated or penalized by any federal,
state or local government authority ("Hazardous Materials"). Lessee may have
an environmental audit of the Property performed and if the audit reveals that
the Property is not free of Hazardous Materials, Lessee shall not be obligated
to take possession of the Property under this Lease. This Lease shall be void
and of no further force or effect if Hazardous Materials are discovered to
exist on the Property after Lessee takes possession of the Property and Lessee
shall be entitled to a refund of all the consideration given Lessor under this
Lease.
18. Environmental Indemnities.
(a) Lessor, Lessor's heirs, grantees, successors, and
assigns shall indemnify, defend, reimburse and hold harmless Lessee from and
against any and all environmental damages arising from the presence of
Hazardous Materials upon, about or beneath the Property or migrating to or from
the Property or arising in any manner whatsoever out of the violation of any
environmental requirements pertaining to the Property and any activities
thereon, which conditions exist or existed prior to or at the time of the
execution of this Lease or which may occur at any time in the future by the
actions of Lessor.
(b) Notwithstanding the obligation of Lessor to indemnify
Lessee pursuant to this agreement, Lessor shall, upon demand of Lessee, and at
Lessor's sole cost and expense, promptly take all actions to remediate the
Property which are required by any federal, state or local governmental agency
or political subdivision or which are reasonably necessary to mitigate
environmental damages or to allow full economic use of the Property, which
remediation is necessitated from the presence upon, about or beneath the
Property of a Hazardous Material. Such actions shall include but not be
limited to the investigation of the environmental condition of the Property,
the preparation of any feasibility studies, reports or remedial plans, and the
performance of any cleanup, remediation, containment, operation, maintenance,
monitoring or actions necessary to restore the Property to the condition
existing prior to the introduction of Hazardous Material upon, about or beneath
the Property notwithstanding any lesser standard of remediation allowable under
applicable law or governmental policies.
19. Right of First Refusal. During the Initial Team and any
Renewal Terms of this Lease, Lessor shall, prior to selling the Property or any
real property of which the Property is a part, notify Lessee in writing of the
sales price and terms offered by a third party, together with a copy of the
third party's offer. Lessee shall have the right of first refusal to purchase
the real property being sold by Lessor on the same terms and conditions (or
cash equivalent terms, if a property exchange is proposed), or only the
Property the purchase price of which shall be determined by multiplying the
purchase price for the entire property by a fraction the numerator of which
shall be the area of the Property and the denominator of which shall be the
total area of the real property to be sold by Lessor. Lessee shall give Lessor
notice of its intention to purchase the same within 30 days of receipt of
Lessor's notice. If Lessee gives no such notice of its intention to purchase
the real property, Lessor may sell the real property to the third party on the
stated terms and price, as long as such sale is made subject to the terms of
this Lease. Notwithstanding the foregoing, Lessee shall not have such right of
first refusal in those instances which Lessor is an individual and Lessor
proposes to convey the real property to another member of Lessor's family;
however, any such property (including the Property) shall be conveyed by Lessor
subject to this Lease.
20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed given if
personally delivered or mailed, certified mail, return receipt requested, to
the following addresses:
If to Lessor, to: Xxxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
If to Lessee, to: American Cable Company, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, XX 00000
Attention: General Manager
with a copy to: CyberNet Holding, Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxxx Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
21. Title and Quiet Enjoyment. Lessor warrants that (i) Lessor
has the full right, power, and authority to execute this Lease; (ii) Lessor has
good and marketable title to the Property and the Easement free and clear of
any liens encumbrances or mortgages; and (iii)
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the Property constitutes a legal lot that may be leased without the need for
any subdivision or platting approval. Lessor further warrants that Lessee
shall have the quiet enjoyment of the Property during the term of this Lease.
22. Leasehold Financing. Lessee may mortgage or grant a security
interest in this Lease and the Improvements, and may assign this Lease and the
Improvements to any such mortgagees or holders of security interests including
their successors and assigns (hereinafter collectively referred to as
"Mortgagees"). In such event, Lessor shall execute such consent to leasehold
financing, as may reasonably be required by Mortgagees and a subordination to
such Mortgagees with respect to the Improvements. Lessor agrees to notify
Lessee and Lessee's Mortgagees simultaneously of any default by Lessee and to
give Mortgagees the same right to cure any default as Lessee except that the
cure period for any Mortgagee shall not be less than 10 days after the receipt
of the default notice.
23. Successors and Assigns. This Lease shall run with the
Property and shall be binding upon and inure to the benefit of the parties,
their respective heirs, successors, personal representatives and assigns.
24. Waiver of Lessor's Lien. Lessor hereby waives any and all
lien rights it may have, statutory or otherwise, in and to the Improvements or
any portion thereof, regardless of whether or not the same is deemed real or
personal property under applicable laws.
25. Miscellaneous.
(a) The substantially prevailing party in any litigation
arising hereunder shall be entitled to its reasonable attorney's fees and court
costs, including appeals, if any.
(b) Each party agrees to furnish to the other, within 10
days after request, such truthful estoppel information as the other may
reasonably request.
(c) This Lease constitutes the entire agreement and
understanding of Lessor and Lessee, and supersedes all offers, negotiations and
other agreements. There are no representations or understandings of any kind
not set forth herein. Any amendments to said Lease must be in writing and
executed by Lessor and Lessee.
(d) If either Lessor or Lessee is represented by a real
estate broker in this transaction, that party shall be fully responsible for
any fees due such broker and shall hold the other party harmless from any
claims for commission by such broker.
(e) Lessor agrees to cooperate with Lessee in executing
any documents necessary to protect Lessee's rights under this Lease or Lessee's
use of the Property and to take any further action which Lessee may reasonably
require as to effect the intent of this Lease.
(f) This Lease shall be construed in accordance with the
laws of the state in which the Property is situated.
(g) If any term of this Lease is found to be void or
invalid, such invalidity shall not affect the remaining terms of this Lease,
which shall continue in full force and effect.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease under seal
as of the date first written above.
LESSOR:
/s/ Xxxxxx X. Xxxxxx (SEAL)
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Xxxxxx X. Xxxxxx
Signed, sealed and delivered this 7 day
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of November , 1996, in the presence of:
--------------------------
/s/ Xxxxx Xxxxxxxxxx /s/ Xxx Xxxxxxx
----------------------------- ----------------------
Witness Witness
-----------------------------
Notary Public, Muscogee County, Georgia
My Commission Expires: My Commission Expires August 26, 2000
--------------------------------------
[SEAL]
LESSEE:
AMERICAN CABLE COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxxx Xx.
---------------------------------
Title: Chief Financial Officer
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Signed, sealed and delivered this 5th day
--------------
of November , 1996, in the presence of:
--------------------------
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Witness
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public Muscogee County, Georgia
My Commission Expires: Notary Public, Xxxxx County, Georgia
---------------------------------------
My Commission Expires March 23, 1998
---------------------------------------
[SEAL]
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EXHIBIT "A"
LEGAL DESCRIPTION OF
LESSOR'S PROPERTY
All that tract or parcel of land situate, lying and being in the City of
Columbus, Muscogee County, Georgia, and being known and designated as PART OF
LOT NUMBERED FIFTEEN (15) in BLOCK LETTERED "C" of ARGALYN MANOR SUBDIVISION as
said Lot appears upon a map or plat of said Subdivision recorded in the Office
of the Clerk of the Superior Court of Muscogee County, Georgia, in Plat Book
10, Page 27, said part of said lot hereby conveyed being more particularly
described as follows:
COMMENCING at an iron stake located on the northerly side of 00xx Xxxxxx 162.7
feet easterly (as measured along the northerly side of 49th Street) of an iron
located where the easterly side of Xxxxxxxx Road intersects the northerly side
of 00xx Xxxxxx and from said Beginning Point, running thence northeasterly
along the westerly boundary line of said Lot 15 a distance of 43.57 feet to an
iron stake located at the southwesterly corner of Lot 1 of said Block and
Subdivision; running thence North 87 degrees 34 minutes East along the dividing
line between said Lots 1 and 15 of said Block and Subdivision a distance of
117.22 feet to an iron stake; thence South 02 degrees 26 minutes East through
said Lot 15 a distance of 39.98 feet to an iron located on the northerly side
of 00xx Xxxxxx; running thence South 87 degrees 29 minutes West along the
northerly side of 00xx Xxxxxx a distance of 134 feet to the Point of Beginning
and being the property upon which is located building numbered 0000 00xx
Xxxxxx, according to the present system of numbering buildings in the City of
Columbus, Georgia, and being the identical property conveyed to Climactic
Contracting Company by X. X. Xxxxxxx, Xx. by Warranty Deed dated January 7,
1966, and recorded in said Clerk's Office in Deed Book 1049, Page 119, and the
identical property conveyed by Climactic Contracting Company to Xxxxx X.
Xxxxxxx by Warranty Deed dated September 30,1966, and filed for record in said
Clerk's Office on February 22, 1968, and recorded in Deed Book 1161, Page 51,
of said Clerk's Office.
****************************************************
EXHIBIT "B"
LEGAL DESCRIPTION OF
THE PROPERTY
All that tract, lot or parcel of land lying and being in Land Xxx 00, 0xx
Xxxxxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
To reach the POINT OF BEGINNING of the property herein described, commence at
an iron stake located at the northeast corner of the intersection of 00xx
Xxxxxx and Xxxxxxxx Road, public roads located in said State and County, thence
running along the northern margin of 00xx Xxxxxx North 87 degrees 29' East a
distance of 179.70 feet to a point located on the northern margin of 00xx
Xxxxxx; running thence North 02 degrees 31' West a distance of 10 feet to a
point, which point marks the POINT OF BEGINNING of the property herein
described; thence running North 02 degrees 31' West a distance of 15.0 feet to
a point; running thence North 87 degrees 29' East a distance of 15.0 feet to a
point; running thence South 02 degrees 31' East a distance of 15.0 feet to a
point; running thence South 87 degrees 29' West a distance of 15.0 feet to the
POINT OF BEGINNING of the property herein described.
This property is also shown on a map or plat of said property entitled Easement
Survey Xxx 00, Xxxxx "X" XXXXXXX XXXXX, Lying in Land Xxx 00, 0xx Xxxxxxxx,
Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx dated August 19, 1996 prepared by Moon,
Meeks, Xxxxx & Xxxxxx, Inc.
