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EXHIBIT 10.62
*** Confidential treatment has been requested for portions of this agreement.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made as of this 19th day of November, 1999, by
and between KNOLOGY of Columbus, Inc., a Delaware Corporation ("Grantor") with
address for purposes of this Agreement at 0000 X.X. Xxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, and ITC Service Company, a Georgia Corporation ("Grantee") with
address for purposes of this Agreement at 0000 X.X. Xxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000 (Grantor and Grantee collectively referred to herein as the
"Parties" and each individually, a "Party").
WHEREAS, Grantor wishes to make available to Grantee, for a fee, the right of
first refusal and an option to lease up to four (4) strands of fiber optic cable
from the Grantor; and
WHEREAS, Grantee wishes to purchase such right and option;
NOW, THEREFORE, for and in consideration of [*****], payable as set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereby promise, covenant and agree as
follows:
X. XXXXX OF REFUSAL RIGHT AND OPTION.
For and in consideration of the payment by Grantee to Grantor of the sum of
[*****] (the "Option Payment"), Grantor hereby agree as follows:
Grantor hereby grants a First Right of Refusal (the "Refusal Right")
and an Option to Lease up to Four Additional Dark Fibers (the "Option")
to Grantee for the specified fiber count as set forth in the Lease
attached as Exhibit "1" (the "Fibers"). Prior to leasing to a third
party the Fibers detailed in Exhibit 1, Grantor shall provide to
Grantee written notice of the proposed lease. Grantee can exercise this
Option, at a lease price and on other terms no less favorable than
those specified on Exhibit 1, up to 30 days after the date of Grantor
informing Grantee in writing (the "Grantee Notice") that it has a bona
fide offer to lease to a third party the Fibers detailed in Exhibit 1.
In the event that Grantee does not provide written notice to Grantor of
its intent to exercise the Option within the 30 day period after the
Grantee Notice, Grantor has the right to execute the lease of these
Fibers to a third party within a period of 60 days unencumbered by the
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Refusal Right and the Option of Grantee. In the event that Grantor does
not consummate the lease to that third party within 180 days, Grantee's
Refusal Right and Option are restored and any subsequent offer to lease
the Fibers will require the above notice requirements, provided that
the Refusal Right has not expired
II. EXERCISE BY GRANTEE.
The election by Grantee to exercise the Refusal Right or the Option must be
evidenced by a written Notice of Exercise delivered to Grantor in accordance
with the provisions below. Grantee, in its Notice of Exercise for the Option,
shall designate a date and time for the effective date of the Lease, which shall
not be earlier than ninety (90) days after the date Grantee delivered the Notice
of Exercise to the Grantor, unless an earlier time is agreed upon by the Parties
in writing. In the event Grantee fails to exercise this Option during the Term,
the Option shall automatically expire and this Agreement shall immediately
terminate and be of no further force or effect.
III. NOTICES
Any notice required or permitted to be given hereunder shall be in writing and
effective on the first business day following the date of receipt. All notices
given under this Agreement shall be addressed, in the case of Grantor, as
follows:
KNOLOGY of Columbus, Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Xx.
Senior Vice President,
Business Development
With a copy to:
KNOLOGY of Columbus, Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
General Counsel
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And, in the case of Grantee, as follows:
ITC Service Company.
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, III
President
IV. TERM.
The term of the Refusal Right and the Option is ten (10) years, commencing with
the date first above written, unless terminated earlier pursuant to the terms
and conditions of this Agreement.
V. MISCELLANEOUS
1. NO WAIVERS. Neither Party shall be deemed to waive any of its rights, powers
or remedies under this Agreement unless such waiver is in writing and signed by
said Party. No delay or failure by a Party in exercising any of said rights,
powers or remedies shall operate as a waiver thereof. The effective waiver by a
Party of any breach of the covenants, conditions or agreements binding on the
other Party on one or more occasions shall not be construed as a waiver or
consent to such breach on any future occasion or a waiver of any other covenant,
condition, or provision of this Agreement.
2. INDEMNITY. Grantee shall indemnify and save harmless the Grantor from failure
by Grantee to secure and obtain any required governmental approvals, consents,
licenses, or permits necessary for Grantee to legally obtain title, own or
operate the Fibers, or to in any other manner comply with rules, regulations,
Laws or ordinances of any governmental or quasi-governmental body. A Party
claiming indemnity under this provision shall notify the other Party promptly of
written claims or demands against such claiming Party for which it asserts the
other Party is responsible. Each Party shall cooperate fully with the other, and
the indemnifying Party shall control the right to settle, appeal (provided it
pays the cost of any required appeal bond), compromise or otherwise resolve any
such claim or resulting judgment; provided that such settlement, compromise or
other resolution of such claim does not result in any liability to the
indemnified Party.
3. INTERPRETATION AND CONSTRUCTION. All of the terms and provisions of this
Agreement shall be construed and interpreted pursuant to the law of the State of
Georgia, without reference to its choice of law provisions. Each party shall, in
the event of a dispute, consent and submit itself to the exclusive jurisdiction
of the State of Georgia.
4. ASSIGNMENT. Either party may assign or delegate its obligations hereunder
without the prior written consent of the other party, but upon reasonable
written notice to the other party; provided, however, such assignment shall not
relieve the assigning party of any of its liabilities.
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This Agreement shall be binding upon and inure to the benefit of the parties
their successors and their assigns.
5. SEVERABILITY. Any provision of this Agreement held or determined by an
arbitrator or by a court (or other legal authority) of competent jurisdiction to
be illegal, invalid, or unenforceable in any jurisdiction shall be deemed
separate, distinct and independent, and shall be ineffective to the extent of
such holding or determination without (i) affecting or invalidating the
remaining provisions of this Agreement in that jurisdiction or (ii) affecting
the legality, validity or enforceability of such provision in any other
jurisdiction.
6. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same Agreement.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the Parties with respect to the subject matter hereof, and is
intended as the Parties' final expression and complete and exclusive statement
of the terms thereof, superseding all prior or contemporaneous agreements,
representations, promises and understandings, whether written or oral. Except as
otherwise expressly provided in this Agreement, neither Party is to be bound by
any pre-printed terms appearing in the other Party's form documents, tariffs,
purchase orders, quotations, acknowledgments, invoices, or other instruments.
After the date of this Agreement, it may be amended or modified only by an
instrument in writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized officers to execute this Agreement the day and year first above
written.
KNOLOGY OF COLUMBUS, INC.
"GRANTOR"
By: /s/ Xxxxx X. Buccucci, Jr.
---------------------------------
Name:
-------------------------------
Title: VP -- Business Development
------------------------------
ITC SERVICE COMPANY
"GRANTEE"
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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EXHIBIT "1"
FIBER LEASE AGREEMENT
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FIBER LEASE AGREEMENT
BETWEEN
KNOLOGY OF COLUMBUS, INC.
AND
ITC SERVICE COMPANY
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FIBER LEASE
THIS AGREEMENT (hereinafter the "Agreement"), made as of the ____ day
of ______________, (the "Effective Date") by and between KNOLOGY of Columbus,
Inc., a Delaware corporation ("LESSOR") and ITC Service Company ("LESSEE"), a
Georgia corporation, sets forth the terms and conditions for the provision of
certain telecommunications facilities and services as hereinafter described.
WHEREAS, LESSOR has existing fiber optic facilities between Xxxx Xxxxx,
Xxxxxxx xxx Xxxxxxxx, Xxxxxxx; and
WHEREAS, LESSEE desires to lease dark fibers from LESSOR pursuant to
the terms and conditions of this Agreement, and LESSOR is willing to lease
certain designated dark optical fibers for the purpose of transmission of
digital telecommunications signals to LESSEE pursuant to the terms and
conditions of this Agreement; and
WHEREAS, LESSEE desires, at its own expense, to obtain, supply, install
and maintain any and all equipment that LESSEE lawfully chooses to use in
connection with the Leased Fibers in order to lawfully transmit digital
telecommunications signals; and
WHEREAS, LESSEE is able and willing to pay LESSOR all payments required
under the terms and conditions of this Agreement; and
WHEREAS, the parties desire to define and set forth the terms and
conditions under which such rights will be accomplished; and
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and premises hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1. DEFINITIONS
1.1 AFFILIATE - an "Affiliate" of a party means any corporation,
partnership (general or limited), limited liability company, joint venture,
corporate or government instrumentality, or other person or entity that is
controlled by or is under common control with that Party; "control" in this
context means either (i) directly or indirectly owning or having the right to
vote ownership interests possessing a majority of the aggregate voting power of
all ownership interests in that entity, or (ii) in fact having the power to
control and direct, either directly or indirectly, the business and affairs of
that entity or to elect or appoint the person (or if more than one, a majority
of the persons) who is responsible for the management and control of the
business and affairs of that entity.
1.2 EQUIPMENT - all power, electronic, optronic and telecommunications
equipment, including, without limitation, transmission, testing, switching,
alarm-monitoring, and repair equipment and all other articles of personal
property used in conjunction with the Leased Fibers.
1.3 EVENTS OF DEFAULT - has the meaning set forth in paragraph 16.
1.4 FIBER TERMINATION POINT(S) - physical locations along LESSOR's
network where LESSEE splices its facilities to the Leased Fibers.
1.5 LEASED FIBERS - the optical fibers which LESSOR permits LESSEE to
use pursuant to the terms and conditions of this Agreement. The number of Leased
Fibers and the particular fibers available to LESSEE under this Agreement is set
forth in Exhibit "A", attached hereto and made a part hereof. The term "Leased
Fibers" refers solely to the optical fibers themselves, and does not include any
associated Equipment that may be necessary or desirable to enable LESSEE or any
other person or entity to use such Leased Fibers for the purpose of transmitting
or receiving telecommunications signals.
1.6 SERVICE AFFECTING OUTAGE - any interruption or reduction in
transmission capacity or quality of the Leased Fibers that materially adversely
affects LESSEE's ability to operate and use the Leased Fibers so long as such
interruption or reduction is not caused by LESSEE's Equipment or is not due to
LESSEE's acts or omissions.
1.7 SPECIFICATIONS - the performance specifications for the Leased
Fibers that are the subject of this Agreement and are set forth in Exhibit "B",
attached hereto and made a part hereof.
ARTICLE 2. TERM
2.0 The original term of this Agreement shall commence on the Effective
Date of this Agreement and shall end on the fifteenth (15) anniversary of the
Effective Date (the "Term").
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***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
ARTICLE 3. OBLIGATIONS OF LESSOR
3.1 LEASE. Subject to the terms and conditions of this Agreement,
LESSOR hereby grants to LESSEE the right to use the Leased Fibers during the
Term in a lawful manner for the purpose of transmitting digital
telecommunications signals and for any other lawful purpose that does not
interfere with, impair or adversely effect LESSOR or any other present or future
use of the LESSOR's fiber network or communication system.
3.2 PROVISION OF LEASED FIBERS. Subject to the terms and conditions of
this Agreement, LESSOR shall lease to LESSEE the Leased Fibers substantially in
accordance with the Specifications on Exhibit "B".
3.3 FIBER TERMINATION. Fiber Termination Point(s) shall be mutually
agreed upon by the Parties and shall be the only points at which LESSEE's
Equipment is connected to the Leased Fibers.
3.4 INTERCONNECTION POINT. LESSOR shall provide collocation space in
the POP sites (as shown on Exhibit "A") if requested by LESSEE to extent space
is available. LESSEE agress to pay a collocation charge for this service at the
then prevailing fair market rates for such collocation space. If LESSOR is
unable to provide entrance facilities into the POP sites when requested by
LESSEE during the Term, LESSOR shall install a splice can at a point in
reasonable proximity to the POP sites and LESSEE shall access the Leased Fibers
through the splice cans.
3.5 MAINTENANCE AND REPAIR. LESSOR, at its sole cost and expense, will
maintain, repair and restore the Leased Fibers in accordance with sound industry
practices.
3.6 SERVICES NOTIFICATION. Except in the case of an emergency where
notice is not feasible, LESSOR will notify LESSEE by telephone twenty-four hours
before performing maintenance, repair or restoration services which, in LESSOR's
reasonable opinion, present a risk of damage to or interference with service
over the Leased Fibers.
3.7 SERVICE RESTORATION PRIORITY. If LESSOR notifies LESSEE of any
potential or actual failure, interruption or impairment in the Leased Fibers
that LESSOR reasonably considers an emergency, then LESSOR will use good faith
efforts to take remedial action within a commercially reasonable time.
ARTICLE 4. OBLIGATIONS OF LESSEE
4.1 PAYMENT. LESSEE shall pay [*****] per month for each fiber leased
by LESSEE from LESSOR under this Agreement during the Term ("Rent").
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4.2 DISCONNECTION OF EQUIPMENT. Upon termination of this Agreement for
any cause or reason whatsoever, LESSEE shall immediately cease and desist from
using the Leased Fibers for any purpose whatsoever. LESSOR shall have the right
to immediately disconnect, at LESSEE's sole expense, any and all splices on the
Leased Fiber joining LESSEE's Equipment, if any, to the Leased Fibers.
ARTICLE 5. APPROVALS AND CONSULTATION
5.1 NON-LIABILITY GENERALLY. Except as provided in Paragraph 5.2 below,
LESSOR shall not be liable to LESSEE for any Service Affecting Outage caused, in
whole or in part by:
5.1.1 an event of Force Majeure, as described in Article 14 of
this Agreement, below; or
5.1.2 construction, maintenance, repairs, replacements,
installation of equipment, investigations and inspections, of or
related to the Leased Fibers, performed by, on behalf of, or at the
direction of LESSEE, except to the extent that such activities are
performed by LESSOR on behalf of LESSEE.
5.2 RESTORATION SCHEDULE; COMPENSATION FOR LATE RESTORATION OF A
SERVICE AFFECTING OUTAGE. In the event of a Service Affecting Outage, LESSOR
will use its reasonable best efforts to restore LESSEE's use of the Leased
Fibers within six (6) hours after LESSOR's receipt of notice from LESSEE of the
Service Affecting Outage (the "Repair Period"). If LESSEE's use of the Leased
Fibers is not restored within twenty-four (24) continuous hours after LESSOR's
receipt of notice of such Service Affecting Outage then (i) LESSEE shall be
entitled to a credit against Rent in an amount equal to one month's Rent for the
Leased Fiber(s) (the "Rent Credit"). The Rent Credit, expense reimbursement and
rights to restore set forth in Paragraph 5.2 shall be the sole and exclusive
remedies available to LESSEE for any Service Affecting Outage.
5.3 LESSOR NOTICE OF WORK. Notwithstanding anything to the contrary in
paragraphs 5.1 and 5.2, LESSOR shall use its reasonable efforts to give LESSEE
advance notice of work that may cause a Service Affecting Outage, and, in the
event of such Service Affecting Outage caused in whole or in part by work
undertaken by or on behalf of LESSOR, LESSOR shall use its reasonable efforts to
restore LESSEE's use of the Leased Fibers as promptly as possible. Except to the
extent that such action is delayed by an event of Force Majeure as described in
Article 14 of this Agreement, or by an event set forth in subparagraph 5.1.2 of
this Agreement, all maintenance, repairs, replacements, installation of
equipment, investigations and/or inspections by LESSOR shall be performed in
accordance with a mutually agreed-upon schedule, so as to minimize inconvenience
by both Parties (hereinafter "Scheduled Maintenance").
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ARTICLE 6. TITLE AND USE OF LESSOR SYSTEM
6.1 LEASED FIBERS. As between LESSOR and LESSEE, it is expressly
understood that LESSOR is and will at all times remain the sole owner and holder
of title to the Leased Fibers and the conduits and all real property associated
with the Leased Fiber. Nothing in this Agreement shall be construed as conveying
to LESSEE any right, title or interest in the Leased Fibers, except for the
license and right to use the Leased Fibers for the transmission of digital
telecommunications signals or any other lawful purpose pursuant to this
Agreement that does not interfere with or adversely affect LESSOR or any other
present or future use of the LESSOR's fiber optic network.
ARTICLE 7. ALTERATION OF ROUTE
7.1 RELOCATION OPTIONS. Before LESSOR significantly changes any part of
the Leased Fibers (including, without limitation, relocating or dismantling any
part of the fiber network of which the Leased Fiber is a part) or substantially
alters the character of any part of the Leased Fibers, LESSOR will give LESSEE
at least three (3) months notice, or if such notice period is impractical, then
as much notice as practical. LESSEE agrees to the extent alternative facilities
are available and re-routing is technically feasible and economically viable, to
re-route such affected part of the Leased Fiber to a new or existing fiber optic
network facilities on an alternate route between the origination and termination
points shown on Exhibit "A";
7.2 RELOCATION EXPENSES. If LESSOR makes a significant change or
alteration described in Section 7.1 upon LESSEE's request, then LESSEE will pay
all costs of such change or alteration. In all other cases, LESSOR will pay the
full costs of re-routing due to such change or alteration.
ARTICLE 8. REGULATION
8.1 LESSOR and LESSEE specifically acknowledge that this Agreement has
been negotiated and tailored to satisfy special requirements of LESSEE. LESSOR
and LESSEE intend that the transactions contemplated by this Agreement not be
classified as regulated common carriage, whether according to the classification
scheme of the Federal Communications Commission, the Georgia Public Service
Commission, or otherwise.
8.2 The Parties agree that in the event a decision by a
telecommunications regulatory authority at the federal, state or local level
necessitates modifications in this Agreement the Parties will negotiate in good
faith to modify such documents in light of such decision to permit each Party,
to the extent practicable, to enjoy the intended benefits of this Agreement.
ARTICLE 9. CONFIDENTIALITY
9.1 CONFIDENTIALITY. Neither Party hereto shall, without the other
Party's specific prior written consent, disclose to any third party any
information supplied to it by such other Party in connection with this
Agreement, which such other Party designated as confidential, proprietary or
private, if such information is not otherwise generally available to the public.
LESSOR hereby
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designates the terms, conditions, and Exhibits of this Agreement as
confidential. Each Party's obligation under this Section 9.1 shall survive
termination of this Agreement to the fullest extent permitted by applicable law.
9.2 REMEDIES. Each Party acknowledges that a violation by it of the
covenants and terms of Paragraph 9.1 shall cause the other Party material and
irreparable harm and shall entitle such other Party, in addition to any other
remedy available to such other Party, including an award of monetary damages, to
a temporary restraining order and permanent injunction restraining and enjoining
the breaching Party from further violations of Paragraph 9.1.
ARTICLE 10. COMPLIANCE WITH LAWS
10.1 Each Party to this Agreement shall materially comply, at its own
expense, with all applicable laws, statutes, regulations, rules, ordinances,
orders, injunctions, writs, decrees or awards of any government or political
subdivision thereof, or any agency, authority, bureau, commission, department or
instrumentality thereof, or any court, tribunal, or arbitrator, in all
applicable, material respects in connection with this Agreement.
10.2 Each Party hereto agrees to comply, and to cause its employees to
comply, with all applicable requirements of law pertaining to its activities in
connection with this Agreement.
ARTICLE 11. LIMITATION OF LIABILITY
11.1 LIMITATION OF DAMAGES. Neither Party nor its affiliates will be
liable to the other Party for any special, indirect or consequential damages or
loss of use, lost revenues or lost profits arising out of this Agreement or the
performance or non-performance thereof, even if it or any of its affiliates has
been informed of the possibility of such damages.
11.2 TIME TO BRING CLAIMS. Either Party's failure to bring a claim
against the other Party within six (6) months after the date on which the
claiming Party knows or should have known of the existence of a potential claim
constitutes a waiver of such claim.
11.3 DISCLAIMER OF ANY IMPLIED WARRANTIES. Other than the warranties
expressly provided herein regarding the Specifications to be met by the Leased
Fibers, LESSOR does not warrant the Leased Fibers, or any other product,
equipment or service to be provided in connection with this Agreement, and
LESSOR HEREBY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE OR USE. LESSOR MAKES NO WARRANTY TO LESSEE OR ANY THIRD PERSON OR ENTITY
AS TO THE AVAILABILITY OR GRADE OF SERVICE TO BE PROVIDED BY OR OVER THE LEASED
FIBERS.
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ARTICLE 12. INDEMNIFICATION
12.1 LESSEE INDEMNIFICATION OF LESSOR. LESSEE shall and hereby agrees
to indemnify and hold harmless and defend LESSOR and all employees, directors,
officers, shareholders, agents, representatives, counsel, affiliates, Parents,
successors and permitted assigns of LESSOR (the "Indemnified LESSOR Parties")
from and for any and all liabilities, damages, lawsuits, obligations, claims,
costs, expenses, assessments, and penalties, including reasonable attorneys'
fees and expenses and court costs, incurred by or asserted against any such
Indemnified LESSOR Parties by reason of, arising out of, or related to:
12.1.1 any work on or near the Leased Fibers or other portion
of the LESSEE System (including transit to or from any such work) which
work is undertaken by or at the direction or request of LESSEE or of
any of LESSEE's employees, agents, representatives or contractors
(other than work undertaken by or at the direction of LESSOR or any of
its employees, agents, representatives or contractors);
12.1.2 any use, nonuse, possession, occupation, operation,
maintenance, or management of the Leased Fibers by LESSEE or its
employees, agents, representatives, contractors, customers, licensees
or invitees, or for which LESSEE or any of its employees, agents,
representatives, contractors, customers, licensees or invitees is
directly or indirectly responsible;
12.1.3 any negligent or tortious or illegal act of LESSEE or
any of its employees, agents, representatives, contractors, customers,
licensees, or invitees;
12.1.4 any failure by LESSEE, whether knowing or unknowing, to
perform any of its material obligations under this Agreement;
12.1.5 any claim for or liability to any person using part or
all of the transmission capacity leased by LESSEE for transmission
purposes to the extent such claim, judgment, or liability is related to
such use of the leased transmission capacity and exceeds the relief
available to LESSEE under this Agreement;
12.1.6 LESSEE's use, misuse, abuse, misapplication or improper
use of the Leased Fibers, including without limitation claims for
defective transmission, actions for libel, slander, and actions for
infringement of copyright and/or unauthorized use of material; or
12.1.7 property damage, bodily injury or death caused by
LESSEE's acts or omissions related to this Agreement.
12.2 LESSOR INDEMNIFICATION OF LESSEE. LESSOR shall and hereby agrees
to indemnify and hold harmless and defend LESSEE and all employees, directors,
officers, shareholders, agents, representatives, counsel, affiliates, Parents,
successors and permitted assigns of LESSEE (the "Indemnified LESSEE Parties")
from and for any and all liabilities, damages, lawsuits, obligations, claims,
costs, expenses, assessments, and penalties, including reasonable attorneys'
fees and expenses
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and court costs, incurred by or asserted against any such Indemnified LESSEE
Parties by reason of, arising out of, or related to:
12.2.1 any work on or near the Leased Fibers or other portion
of the LESSEE System (including transit to or from any such work) which
work is undertaken by or at the direction or request of LESSOR or of
any of LESSOR's employees, agents, representatives or contractors
(other than work undertaken by or at the direction of LESSEE or any of
its employees, agents, representatives or contractors);
12.2.2 any negligent or tortious or illegal act of LESSOR or
any of its employees, agents, representatives, contractors, customers,
licensees, or invitees;
12.2.3 any failure by LESSOR, whether knowing or unknowing, to
perform any of its material obligations under this Agreement; or
12.2.4 property damage, bodily injury or death caused by
LESSOR's acts or omissions related to this Agreement.
ARTICLE 13. INSURANCE
13.1 COVERAGE REQUIRED OF LESSEE. During the Term, LESSEE and all
contractors or subcontractors hired by LESSEE shall take out, pay the premiums
on, and continuously maintain insurance coverages described below. Promptly
after the Effective Date, LESSEE shall deliver to LESSOR, pursuant to the notice
provisions of this Agreement, certificates of insurance, reasonably acceptable
to LESSOR, evidencing at least the following levels of insurance coverage:
13.1.1 worker's compensation insurance coverage complying with
the law of the State of Georgia and employers liability insurance with
limits of not less than $500,000 per occurrence;
13.1.2 comprehensive general liability insurance coverage and
excess umbrella, if necessary, with broad form endorsement attached,
for a combined bodily injury and property damages limit of not less
than $2,000,000 per occurrence, which coverage shall include blanket
contractual, products liability, and completed operations liability
coverage; and
13.2 LESSOR shall be specifically named as an "Additional Insured" on
the liability policy.
13.3 NOTICE OF CANCELLATION. All such insurance coverage described in
this paragraph shall provide for not less than thirty (30) days' prior written
notice to LESSOR of cancellation or material change. LESSEE shall maintain all
such coverage in force at all times during the Term of this Agreement.
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ARTICLE 14. FORCE MAJEURE
14.1 Neither Party shall be liable to the other for any delay,
impairment or failure to perform during any period in which such delay,
impairment or failure is (i) due to causes beyond its control and reasonable
anticipation, and (ii) without such Party's fault or negligence (hereinafter a
"Force Majeure"), including, but not limited to, fires, floods, epidemics,
third-party negligence, quarantine restrictions, war, labor disputes and freight
embargoes.
14.2 Each Party whose performance is impaired under this Section 14
shall exercise best efforts (including interconnection and cooperation with
other carriers) to mitigate the extent of such delay or failure, including those
arising from labor disputes or strikes.
ARTICLE 15. DISPUTE RESOLUTION
15.1 Any controversy or claim arising out of or relating to this
Agreement, including but not limited to a claim based on or arising from an
alleged tort, shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules. All statutes of
limitation which would otherwise be applicable in a judicial action brought by a
party shall apply to any arbitration and shall be given effect by the
arbitrator(s). The arbitrator(s) is authorized, in the exercise of his or her
discretion, to award costs and reasonable attorney's fees to the prevailing
party. The arbitrator shall have no authority to award punitive damages or any
other damages not measured by the prevailing party's actual damages, nor shall
any party seek punitive damages relating to any matter arising of this Agreement
in any other forum.
15.2 The parties acknowledge that this Agreement evidences a
transaction in interstate commerce. The United States Arbitration Act and
federal arbitration law shall govern the interpretation, enforcement and
proceedings pursuant to this arbitration clause. Judgment on the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof. By
signing and delivering this Agreement, each of the parties accepts for itself
and in respect to its property, generally and unconditionally, the jurisdiction
of any court having jurisdiction.
ARTICLE 16. DEFAULT
16.1 EVENTS OF DEFAULT. Events of default shall be and include: (i) the
failure of LESSEE to pay any installment of Rent within thirty (30) days of its
due date; (ii) the failure by either Party to comply in good faith with any or
all of the material terms and conditions of this Agreement and such defaulting
Party's failure to cure such default within thirty (30) days after written
notice thereof or, if such default cannot be cured within thirty (30) days, such
defaulting Party commencing curative actions within such thirty (30) days and
diligently and continuously pursuing such curative action to a conclusion; (iii)
any material misrepresentation or breach of any warranty or representation
contained in this Agreement; (iv) either Party ceasing to do business as a going
concern; or (v) either Party makes a general assignment for the benefit of, or
enters into any composition or arrangement with creditors; is unable to or
admits in writing its inability to pay its
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debts as they become due; authorizes, applies for, or consents to the
appointment of trustee or liquidator of all or substantial part of its assets or
has proceedings seeking such appointment commenced against it which are not
terminated within sixty (60) days of such commencement; files a voluntary
petition under any bankruptcy or insolvency law or files a voluntary petition
under the reorganization or arrangement provisions of the laws of the United
States pertaining to bankruptcy or similar law of any jurisdiction or has
proceedings under any such law instituted against it which are not terminated
within sixty (60) days of such commencement; or has any substantial part of its
property become subject to any levy, seizure, assignment or sale for or by any
creditor or governmental agency without said levy, seizure, assignment or sale
being released, lifted, reversed or satisfied within ten (10) days thereafter.
16.2 REMEDIES UPON AN EVENT OF DEFAULT. Except as otherwise provided in
this Agreement, upon the occurrence of such an Event of Default, the
non-defaulting Party shall have all remedies available to it at law or equity or
under this Agreement. Unless otherwise stated herein, all such remedies shall be
cumulative and non-exclusive.
ARTICLE 17. TERMINATION OF AGREEMENT
17.1 This Agreement and the rights created hereby may be terminated:
17.1.1 upon the mutual written agreement of both Parties;
17.1.2 by either Party for any default of the other Party
hereunder; or
17.1.3 as expressly provided herein.
ARTICLE 18. MISCELLANEOUS
18.1 ASSIGNMENT. Either party may assign or delegate its obligations
hereunder without the prior written consent of the other party, but upon
reasonable written notice to the other party; provided, however, such assignment
shall not relieve the assigning party of any of its liabilities. This Agreement
shall be binding upon and inure to the benefit of the parties their successors
and their assigns.
18.2 MODIFICATION. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by both Parties.
18.3 LIMITATION OF BENEFITS. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective successors
and permitted assigns. The Parties do not intend that this Agreement benefit any
persons or entities other than the Parties hereto. It is the explicit intention
of the Parties
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hereto that no person or entity other than the Parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the Parties hereto, and that the covenants, undertakings, and agreements
set forth in this Agreement shall be enforceable only by, the Parties hereto or
their respective successors or permitted assigns.
18.4 NOTICES. Any notice required or permitted to be given hereunder
shall be (a) in writing, (b) effective on the first business day following the
date of receipt, and (c) delivered by one of the following means: (i) by
personal delivery; (ii) by prepaid, overnight package delivery or courier
service; (iii) by the United States Postal Service, first class, certified mail,
return receipt requested, postage prepaid; or (iv) by prepaid telecopier, telex,
or other similar means of electronic communication (followed by confirmation on
the same or following day by overnight delivery or by mail as aforesaid). All
notices given under this Agreement shall be addressed, in the case of LESSOR, as
follows:
Xxxx X. Xxxxxxx
VP and General Counsel
KNOLOGY Holdings, Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
and, in the case of LESSEE, as follows:
Xxxxxxx X. Xxxxx, III
President
ITC Service Company
0000 X. X. Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
with a copy to:
Xxxxxxxxx X. Xxxxxxxx
Senior Vice President and General Counsel
ITC Service Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
or to such other addresses or telecopier numbers of which the Parties have been
advised in writing by any of the above-described means. Personal delivery to a
Party or to any officer, partner, agent, or employee of such Party at its
address herein shall constitute receipt. The following shall also constitute
receipt: (i) a Party's rejection or other refusal to accept notice, and (ii) the
inability to deliver to a Party because of a changed address or telecopier
number of which no notice has been received by the other Party. Notwithstanding
the foregoing, no notice of change of address or telecopier number shall be
effective until ten (10) days after the date of receipt thereof. This paragraph
shall not be construed in any way to affect or impair any waiver of notice or
demand herein provided.
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18.5 INDEPENDENT CONTRACTORS. In all matters pertaining to this
Agreement, the relationship of LESSOR and LESSEE shall be that of independent
contractors, and neither LESSOR nor LESSEE shall make any representations or
warranties that their relationship is other than that of independent
contractors. This Agreement is not intended to create nor shall it be construed
to create any partnership, joint venture, employment, franchise, or agency
relationship between LESSOR and LESSEE; and no Party hereto shall be liable for
the payment or performance of any debts, obligations, or liabilities of the
other Party, unless expressly assumed in writing herein or otherwise. Each Party
retains full control over the employment, direction, compensation and discharge
of its employees, agents and representatives and will be solely responsible for
all compensation of such employees, agents and representatives, including but
not limited to any applicable social security, insurance, tax withholding and
worker's compensation responsibilities.
18.6 NON-EXERCISE OF RIGHT NOT WAIVER. No failure or delay on the part
of either Party hereto in exercising any right, power or privilege hereunder and
no course of dealing between the Parties shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
18.7 SURVIVAL. It is the express intention and agreement of the Parties
hereto that all covenants, agreements, statements, representations, warranties
and indemnities made in this Agreement shall survive the execution and delivery
of this Agreement. It is the express intention and agreement of the Parties that
the obligations of each Party to protect the other Party's Confidential
Information, and the obligations to indemnify the other Party and other persons
and entities, pursuant to the terms and conditions of this Agreement, shall
survive the execution, delivery and termination (whether by expiration, default,
extinguishment or otherwise) of this Agreement.
18.8 HEADINGS. Article headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
18.9 INCORPORATION OF EXHIBITS AND AMENDMENTS THERETO. The Exhibits
referenced in this Agreement, as it may be amended from time to time in writings
executed by both Parties, shall be deemed an integral part hereof to the same
extent as if written at length herein.
18.10 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement and each of its provisions shall be governed by
the laws of the State of Georgia.
18.11 COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of or on behalf of each Party appear on each
counterpart; but it shall be sufficient that the signature of or on behalf of
each Party appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than any counterpart or
counterparts contain signatures of both Parties.
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18.12 ENTIRE AGREEMENT; NO ORAL MODIFICATIONS. This Agreement, together
with all Exhibits attached, constitutes the entire agreement between the parties
with respect to the transaction contemplated herein, and supersedes all prior
oral or written agreements commitments or understandings with respect to the
matters provided for herein. This Agreement shall not be amended or modified
except by a writing executed by both Parties.
18.13 SEVERABILITY. Any provision of this Agreement held or determined
by a court (or other legal authority) of competent jurisdiction to be illegal,
invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct
and independent, and shall be ineffective to the extent of such holding or
determination without (i) invalidating the remaining provisions of this
Agreement in that jurisdiction or (ii) affecting the legality, validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the undersigned Parties have caused this Agreement to be
duly executed on their behalf, as of the day and year first hereinabove set
forth.
SIGNED AND DELIVERED
ITC SERVICE COMPANY KNOLOGY OF COLUMBUS, INC.
By: By:
-------------------------- --------------------------
Its: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
Address: Address:
-------------------------- --------------------------
-------------------------- --------------------------
-------------------------- --------------------------
TEL: TEL:
-------------------------- --------------------------
FAX: FAX:
-------------------------- --------------------------
Contact Person: Contact Person:
-------------- --------------
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EXHIBIT A
LEASED FIBER ROUTE
ROUTE
PROPOSED CIRCUIT
ORIGINATION POINT TERMINATION POINT LENGTH SERVICE DATE
----------------- ---------------- ------ ----------------
97 MILES
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EXHIBIT B
SPECIFICATIONS
FIBER CABLE SPECIFICATIONS. The outside plant cable will contain single
mode, dual window fibers.
FIBER OPTIC SPECIFICATIONS. The Fibers are single mode and conform to
all the following minimum specifications:
Operating Wavelength 1310 NM 1550 NM
Maximum Attenuation .40dB/KM .30 dB/KM
Maximum Dispersion 3.5 PS/NM-KM 4 PS/NM-KM
Core Diameter (Typical) 8.7 microns
Core Noncircularity (Max) 10%
Cladding Diameter 125 microns
3 um
Cladding Noncircularity 2%
Core Cladding Offset 1.0 micron
Proof Test KPSI (100 KPSI
for OPGW)
Fiber Bandwidth Limitation None
Cut Off Wavelength 1100-1310 NM
Note: NM = nanometers; dB = decibels; KM = kilometers; PS = picoseconds
um = microns; KPSI = Kilopounds per square inch
SPLICE SPECIFICATIONS. LESSOR will utilize "Fusion Splicing" and meet
an average of 0.15 dB loss per splice with a maximum splice loss not to exceed
0.3 dB on any individual splice. LESSOR will record the actual dB loss reading
as displayed on the splicer or Optical Time Domain Reflectometer ("OTDR") as the
splice is completed. LESSOR will provide the results to LESSEE.
END TO END ANALYSIS. LESSOR will measure the maximum End to End Optical
Loss for all Fibers on the Route. This will be measured by a laboratory
calibrated optical power meter utilizing a stabilized single mode light source.
LESSOR will provide the results to LESSEE. LESSOR will make the End to End OTDR
tracings at 1300 NM and 1500 NM for each Fiber after all the splicing has been
completed. This tracing will be provided to LESSEE.
