1
EXHIBIT 10.15
AGREEMENT
THIS AGREEMENT (hereinafter "Agreement") is made and entered into as of
the 23rd day of August, 1997, between INTERSTATE FIBERNET, INC. and KNOLOGY,
INC., (hereinafter "Knology")
WITNESSETH:
WHEREAS, Knology desires to lease space from IFN at IFN's Network
Management Facilities located in West Point, Georgia; and
WHEREAS, IFN desires to provide certain lease space to Knology pursuant
to a lease arrangement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth in this Agreement, the parties hereto do hereby agree as
follows:
1. TERM: The term of this agreement will commence on June 9, 1997
(hereinafter referred to as the "Commencement Date") and run for an initial term
of 2 years, with an option in favor of Knology to extend the agreement under the
same terms and conditions for an additional 2 years upon notice to IFN not later
than 30 days prior to the expiration of the initial term, unless the agreement
is otherwise terminated prior to that date.
2. COVENANTS AND RENTS: IFN agrees to provide or perform the
following: A) provide two cubicle spaces as previously designated by the
parties to permit Knology technicians to share and utilize IFN's telemetry
system for the purpose of monitoring Knology's telemetry in Montgomery,
Alabama and Columbus, Georgia; and B) provide general management supervision
for the Knology technicians monitoring Knology's network at the Network
Management Facilities.
In return, Knology agrees to the following: A) Knology shall, at their
sole expense, purchase necessary hardware, software, projection mechanism, and a
screen for installation at the Network Management Facilities, which shall be
used jointly by IFN and Knology for the purpose of monitoring telemetry data; B)
shall pay to IFN the sum of Nine Hundred Dollars ($900.00) per month for floor
rental space; and C) shall pay to IFN the sum of Two Thousand Dollars
($2,000.00) per month for Knology personnel management at the Network Management
Facilities. Knology's obligation to pay the applicable monthly rent and
management amounts provided herein shall commence on the day Knology personnel
actually occupy the cubicles. In the event the cubicles were occupied on any day
other than the first day of the month, Knology shall pay rent for the fractional
month on a per diem basis until the first day of the next following month, and
thereafter the monthly rent shall be paid on the first day of each month in
advance. Any rent payment not received by IFN by the fifth (5th) 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%) or the
maximum amount permitted by law, whichever is less, monthly until the same is
paid in full.
2
Page 2
GENERAL PROVISIONS
3. RELOCATION OF THE CUBICLES: Knology recognizes that, from time to time,
IFN may elect or be required to relocate the cubicles designated for the use by
Knology employees. IFN shall use best efforts to do so in a manner that will not
cause any interruption in Knology's use thereof or negatively affect Knology's
ability to use the joint assets in the Network Management Facilities. IFN agrees
to notify Knology as soon as possible of any relocation. In the event that the
relocation is for the benefit of IFN, IFN agrees to pay the cost of the
relocation.
4. TELEMETRY SYSTEM ADDITIONS: For a period of two years from the
Commencement Date, Knology may add additional cities to the Telemetry System for
monitoring. Knology understands that this will be undertaken at their sole cost
and expense, and shall not negatively impact IFN's use of the Telemetry system
or the Network Management Facilities.
5. PURCHASE OF EQUIPMENT: Unless otherwise agreed to herein, at the
termination of this agreement, IFN has the option to purchase any equipment or
office furnishings purchased by Knology and installed on the premises at the
Network Management Facilities at a fair market price to be established at the
time of termination.
6. INSURANCE: During the Initial Term of this Agreement, and any renewals
or extensions thereof, unless otherwise agreed to in writing by the authorized
representatives, Knology shall, at its own expense and for the benefit and
protection of IFN, maintain in effect insurance coverage with limits not less
than those set forth herein:
(a) Worker's compensation insurance with statutory limits as required
by the laws and regulations applicable to the employees of Knology or its
contractors who are engaged in the performance of the Agreement;
(b) Employer's liability Insurance, for employee bodily injuries and
deaths, with limits of $500,000 per occurrence;
(c) 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;
No cancellation, modification or change to any insurance policy owned or
obtained by Knology shall affect Knology's obligation to maintain the insurance
coverage required by this Agreement. All liability insurance policies shall be
written on an "occurrence" policy form. Knology shall be responsible for payment
of any and all deductibles from insured claims under its policies. Upon
reasonable request, Knology shall furnish to IFN a certificate of insurance as
evidence of compliance with the aforementioned requirements. The foregoing
insurance requirements are not intended to and shall not in any manner limit or
qualify the liabilities and
3
Page 3
obligations assumed by Knology under this Agreement. Knology understands and
agrees that, while IFN agrees to provide supervision of Knology's employees
located in the Network Management Facilities, no employer/employee relationship
is established by and between IFN and any Knology employees, wherever said
employees may be located.
7. DEFAULT:
(a) Knology shall not be in default under this Agreement, or in
breach of any provision hereof unless and until IFN shall have given Knology
written notice of such breach and Knology shall have failed to cure the same
within fourteen (14) days after receipt of such notice, other than any default
in payment which must be cured within five (5) business days after receipt of
such notice; provided, however, that where such breach cannot reasonably be
cured within such fourteen (14) day period, or five (5) business day period for
a monetary default, if Knology shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such breach shall
be extended for such period of time as may be necessary to complete such curing.
Upon the failure by Knology to timely cure any such breach after notice thereof
from IFN, IFN shall have the right to take such action as it may determine, in
its sole discretion, to be necessary to cure the breach.
(b) IFN shall not be in default under this Agreement or in breach of
any provision hereof unless and until Knology shall have given IFN written
notice of such breach and IFN shall have failed to cure the same within fifteen
(15) days after receipt of such notice; provided, however, that where such
breach cannot reasonably be cured within such fifteen (15) day period, if IFN
shall proceed promptly to cure the same and prosecute such curing with due
diligence, the time for curing such breach shall be extended for such period of
time as may be necessary to complete such curing. Upon the failure by IFN to
timely cure any such breach after notice thereof from Knology, Knology shall
have the right to take such action as it may determine, in its sole discretion,
to be necessary to cure the breach.
(c) If either party shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any present or future federal
or state bankruptcy law or under any similar federal or state law, or shall be
adjudicated a bankrupt or insolvent, or shall make a general assignment for the
benefit of its creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or any involuntary petition proposing the
adjudication of either party as a bankrupt or its reorganization under any
present or future federal or state bankruptcy law or any similar federal or
state law shall be filed in any court and such petition shall not be discharged
or denied within ninety (90) days after the filing thereof, or if a receiver,
trustee or liquidator for all or substantially all of the assets of either party
shall be appointed in any proceeding brought by any party, then the other party
hereto may, at its sole option, immediately terminate this Agreement. Upon the
effective date of termination undertaken in accordance with any of the
provisions of this Section, this Agreement shall become null and void and
neither party hereto shall have any further obligation to the other.
8. FORCE MAJEURE: Neither party shall be liable to the other for
any failure of performance under this Agreement due to causes beyond its
control (except for the fulfillment of
4
Page 4
payment obligations as set forth herein), including, but not limited to: acts
of God, fire, flood or other catastrophes; adverse weather conditions; material
or facility shortages or unavailability not resulting from such party's failure
to timely place orders therefor; lack of transportation; the imposition of any
governmental codes, ordinances, laws, rules, regulations or restrictions;
national emergencies, insurrections, riots, or wars; strikes, lock-outs, work
stoppages or other labor difficulties (collectively, "force majeure events").
9. ASSIGNMENT:
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors or assigns; provided,
however, that no assignment or sublease, assignment, or licensing hereof
(hereinafter collectively referred to as a "Transfer") of any rights or
obligations hereunder shall be valid or permitted; provided, however, that upon
written notice to the other party, either party shall have the right to assign
this Agreement to any parent, subsidiary, or affiliate of that party or to any
person, firm or corporation which shall control, be under the control of, or be
under common control with that party or to any person, firm or corporation into
or with which that party may be merged or consolidated or which purchases all or
substantially all of the assets or stock of that party.
(b) In the event of any assignment or Transfer by either party
undertaken pursuant to paragraph 9(a) above, the assigning or transferring party
shall remain liable for all its obligations under this Agreement, unless the
assignee or transferee shall have affirmatively assumed in writing all of the
obligations of the assigning or transferring party under this Agreement.
10. WAIVER OF TERMS OR CONSENT TO BREACH: No term or provision of this
Agreement shall be waived and no breach excused, unless such waiver or consent
shall be in writing and signed by a duly authorized officer of the party claimed
to have waived or consented to such breach. Any consent by either party to, or
waiver of, a breach by the other party shall not constitute a waiver or consent
to any subsequent or different breach. If either party shall fail to enforce a
breach of this Agreement by the other party, such failure to enforce shall not
be considered a consent to or a waiver of said breach or any subsequent breach
for any purpose whatsoever.
11. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY: The relationship between
IFN and Knology shall not be that of partners or agents for one another and
nothing contained in this Agreement shall be deemed to constitute a partnership,
joint venture or agency agreement between the parties hereto.
12. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the sole benefit
of the parties hereto and their respective permitted successors and assigns, and
shall not be construed as granting rights to any person or entity other than the
parties or imposing on either party obligations to any person or entity other
than a party.
5
Page 5
13 INDEMNIFICATION:
(a) Neither IFN nor Knology shall be liable to the other for any
indirect, special, punitive, or similar damages (including, but not limited to,
any claim for loss of profits) arising under this Agreement or from any breach
or partial breach of the provisions of this Agreement or arising out of any act
or omission of either party hereto, its employees, servants, contractors and/or
agents.
(b) Each party hereto assumes, releases, and agrees to indemnify,
defend, protect and save the other harmless from and against any claim, damage,
loss, liability, cost, and expense (including reasonable attorney's fees) in
connection with any loss or damage to any property or facilities of any party
(including Knology, IFN or any other party operating or using any part of the
Network Management Facilities) arising out of or resulting in any way from the
acts or omissions to act, negligent or otherwise, of such party, its employees,
servants, contractors and/or agents in connection with the exercise of its
rights and obligations under the terms of this Agreement. The parties hereto
expressly recognize and agree that each parties' said obligation to indemnify,
defend, protect and save the other harmless is not a material obligation to the
continuing performance of the parties' other obligations, if any, under the
terms of this Agreement. In the event a party shall fail for any reason to so
indemnify, defend, protect and save the other harmless, the indemnified party
hereby expressly recognizes that its sole remedy in such event shall be the
right to bring suit against the indemnifying party for its damages as a result
of the indemnifying party's failure to so indemnify, defend, protect and save
harmless.
(c) Nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages, including indirect,
special, or punitive damages, or damages for lost profits, against any third
party based on any acts or omissions of such third party as such acts or
omissions may affect the use of the Network Management Facilities; provided,
however, that each party hereto shall assign such rights or claims, execute such
documents and do whatever else may be reasonably necessary to enable the injured
party to pursue any such action against such third party.
14. EFFECT OF SECTION HEADINGS: Section headings appearing in
this Agreement are inserted for convenience only and shall not be
construed as interpretations of text.
15. NOTICES:
(a) Any written notice under this Agreement shall be deemed properly
given if sent by registered or certified mail, postage prepaid, or by
nationally-recognized overnight delivery service to the address specified below,
unless otherwise provided for in this Agreement:
If to Knology:
Xxxx Xxxxxx, President
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xx. 00000
6
Page 6
If to IFN:
IFN
Attention: Xxxxx Xxxxxx
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xx. 00000
With a copy to:
IFN
Attention: General Counsel
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) 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.
(c) Unless otherwise provided herein, notices shall be deemed
delivered: if sent by U.S. Mail, five (5) days after deposit; if sent by
facsimile, upon verification of receipt; or, if sent by commercial overnight
delivery service, one (1) day after deposit.
16. SEVERABILITY: In the event any term, covenant or condition of this
Agreement, or the application of such term, covenant or condition, shall be held
invalid as to any person or circumstance by any court having jurisdiction, all
other terms, covenants and conditions of this Agreement and their application
shall not be affected thereby, but shall remain in force and effect unless a
court holds that the invalid term, covenant or condition is not separable from
all other terms, covenants and conditions of this Agreement.
17. GOVERNING LAW: This Agreement shall be interpreted in
accordance with the laws of the State of Alabama, and all applicable
federal laws, rules and regulations as if this Agreement were executed and
performed wholly within the State of Alabama.
18. PLURALS: In construction of this Agreement, words used in the
singular shall include the plural and the plural the singular in all cases
where such meanings would be appropriate.
19. PARTS OF AGREEMENT: All attachments, exhibits and appendices
attached hereto shall be deemed a part of this Agreement, and shall have
full force and effect.
20. COUNTERPARTS: This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Agreement
by signing any such counterparts.
7
Page 7
21. ENTIRE AGREEMENT: This Agreement constitutes the entire
Agreement between IFN and Knology with respect to the subject matter
hereof; all prior agreements, representations, statements, negotiations and
undertakings are hereby superseded.
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.
KNOLOGY, INC.
WITNESS:
/s/Xxxxx X. Xxxxx By: /s/Xxxxxxx X. Xxxxxx
----------------- --------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
----------------- -------------------
Title: President & CEO
-------------------
INTERSTATE FIBERNET, INC.:
WITNESS:
/s/Xxxxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
------------------ ----------------
Name: Xxxxxxxxx Xxxxx Name: Xxxxx Xxxxxx
---------------- -----------------
Title: VP OPNS
----------------
