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EXHIBIT 10.9
LEASE
THIS AGREEMENT, made as of the 20 day of August, 1996 by and between
W.M.H. XxXxxxxx, located at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx. 00000,
Alabama ("Lessor"), and Montgomery Cablevision and Entertainment Incorporated,
an Alabama corporation with its principal office located at 0000 Xxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx ("Lessee").
W I T N E S S E T H :
SECTION 1
PREMISES
1.1 Lessor hereby leases to Lessee and Lessee hereby takes from
Lessor, for the term and upon the terms, covenants and conditions set forth in
this Lease, a parcel of land containing approximately 15' by 15' (.01) acre(s)
and being more particularly described as follows:
Commence at the intersection of the North Right of Way of the Old CSX
Railroad Right of Way and the South Right of Way of Atlanta Highway; Thence
along the South Atlanta Highway Run N89 degrees 16' 30"E, 57.21 Feet;
Thence leaving said Right of Way run S00 degrees 33'30"E, 18.59 feet to
the Point of Beginning; Thence from said Point of Beginning run N89
degrees 16'30"E, 15.00 feet; Thence run S00 degrees 33'30"E, 15.00 feet;
Thence run S89 degrees 16'30"W, 15.00 feet; Thence run N00 degrees 33'30"W,
15.00 feet to the Point of Beginning.
together with the unrestricted right of ingress, egress and access to Lessee's
installations as shown on Schedule A attached hereto and made a part hereof
(the "Premises"). It is further agreed that the Premises will be bounded and
enclosed by a chain-link or comparable fence to be erected by Lessee, which
shall remain the property of the Lessee.
1.2 (a) Lessee shall, at its sole expense, construct
communication facilities, including an equipment building to shelter electrical
and other telecommunications equipment for the provision
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of communication services by Lessee. All of the above improvements are
together called "Lessee's installations".
(b) The procurement of all necessary licenses,
certificates and permits for the erection, construction, maintenance and
operation of Lessee's installations and any other certificates or permits which
may be required or necessary are the obligation of Lessee, and all fees and
expenses in connection therewith shall be paid by Lessee. Provided that,
Lessor agrees to join in and cooperate with Lessee in obtaining from any
governmental or other public agency all licenses, certificates, permits and
applications necessary, from time to time, for Lessee's intended use of the
Premises. In the construction of all improvements upon the Premises, Lessee
will comply with all laws, ordinances and regulations of all governments and
bureaus concerned with said construction.
SECTION 2
TERM
2.1 The term of this Lease shall be for a period of 5 years,
commencing on the date this Lease is executed, or the date of possession of the
Premises by Lessee, whichever is later. Said date is hereafter called the
"Term Commencement Date."
SECTION 3
RENT, TAXES AND UTILITIES
3.1 Lessee covenants and agrees to pay to Lessor by way of rental
for the Premises the sum of One Thousand Two Hundred Dollars ($1,200.00), as
annual rent, said annual rent to be paid in equal monthly installments in
advance in the amount of One Hundred Dollars ($100.00), on the first day of
each and every month during the initial term of this Lease. Lessee shall
provide and pay for its own electric and telephone service. Lessee also
covenants and agrees to provide to Lessor by
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way of rental for the premises basic, expanded basic and premium channels when,
and so long as, Lessor's primary residence becomes a serviceable address during
the term of this Lease. Lessee also covenants and agrees to provide to
Lessor's adult children, Xxxxxxx X. XxXxxxxx, Xx. and Senior, Xxxxx X. XxXxxxxx
and Xxxxxx X. XxXxxxxx, by way of rental for the premises basic, expanded basic
and premium channels when and so long as, their primary residences become a
serviceable address, during the term of this Lease.
3.2 Commencing on the sixth anniversary of the Term Commencement
Date, the annual rent to be paid by the Lessee to the Lessor shall be adjusted.
The annual rent shall be One Thousand Two Hundred Dollars ($1,200.00) plus an
amount equal to the annual percentage increase, if any, in the Consumer Price
Index ("CPI") for the year immediately preceding said adjustment date. The
annual rent to be paid by the Lessee to the Lessor shall likewise be adjusted
on the eighth anniversary of the Term Commencement Date.
If the percentage increase in the CPI is a negative number on the
fifth or eighth anniversary of the term commencement date, then the rent shall
be One Thousand Two Hundred Dollars ($1,200.00) less an amount equal to the
annual percentage decrease, if any, in the CPI for the year immediately
preceding said adjustment date.
However, the annual rent shall never increase or decrease more than
One Hundred Dollars ($100.00) at any adjustment period.
3.3 If the Lease is terminated at a time other than the
anniversary of Term Commencement Date, the rent shall be prorated as of the
date of termination, and in the event of termination for any reason other than
nonpayment of Rent, all Rents paid in advance of the date of termination for
that period after said date of termination shall be refunded to the Lessee.
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3.4 Lessor shall promptly pay any and all real property taxes,
assessments and charges levied against the real property of which the Premises
form a part, but Lessee shall be responsible for the payment of any and all
real property taxes, assessments or charges levied against Lessee's
installations, if any.
3.5 Lessee shall promptly pay to Lessor any increases in ad
valorem taxes and/or any ad valorem recapture taxes, if any, due solely to the
addition of Lessee's installations to the real property, upon notification, in
writing, by Lessor of said increased taxes applicable to the Premises, due
solely as a result of the addition of Lessee's installations. If requested by
Lessee, Lessor shall provide documentation from appropriate officials
reflecting said increased taxes and Lessee's proportional share. Lessee shall
thereafter pay to Lessor, in annual lump sum payments, Lessee's proportional
share of the additional taxes. If Lessor obtains an abatement of any such tax,
Lessee's proportional share of such abatement shall be refunded to Lessee.
3.6 Lessee shall be obligated for additional ad valorem taxes only
for periods within the lease term. Lessee's liability to pay additional ad
valorem taxes as referred to in the foregoing Section 3.5 shall be prorated on
the basis of a 365 day year to account for any fractional portion of a fiscal
tax year included in the lease term at its expiration or termination.
SECTION 4
OPTION TO RENEW; RENEWAL RENT
4.1 Lessor covenants and agrees to renew this Lease for two (2)
additional periods, one of three (3) years followed by one of two (2) years, at
the option of Lessee, under the same terms and conditions continued herein
provided Lessee has duly performed the agreements, terms and conditions herein
set forth, and provided that Lessee shall give to Lessor notice in writing of
its election to renew thirty (30) days before the termination of the initial
term of this Lease. If prior to the expiration of the initial term of this
Lease, Lessee has not given Lessor notice in writing of its
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election to renew as provided herein, then the Lessee shall be deemed to be a
Lessee from month to month only.
4.2 The monthly rent for any holdover period shall be one-twelfth
of the annual rent currently in effect at the expiration of the initial term of
this Lease, plus One Hundred Dollars ($100.00). All other terms and conditions
are to remain the same as specified in this Lease, during any holdover period.
Upon notification to the Lessor of an intent to renew, the Lessee will no
longer be considered as holding over.
SECTION 5
INSURANCE
5.1 Lessee shall carry, in an approved casualty company, at its
own expense, comprehensive general liability insurance in an amount no less
than One Million Dollars ($1,000,000.00) combined single limit covering
personal injury and property damage for the benefit of both Lessor and Lessee.
Lessor shall be added as a named insured under Lessee's said liability
insurance and a copy of Lessee's Certificate of Insurance shall be provided to
Lessor.
5.2 Lessee shall maintain at its expense policies insuring against
loss or damage to the Premises and Lessee's installations by reason of fire or
other casualty.
5.3 All insurance required by this Lease may be provided under
Lessee's blanket policies from time to time in effect.
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SECTION 6
REPAIRS, ALTERATIONS AND TITLE TO IMPROVEMENTS
6.1 Lessee may make any alterations, additions and improvements to
Lessee's installations or to the Premises necessary to continue the provision
of communication services thereon without Lessor's prior consent. Provided
that, should Lessee desire to utilize the Premises for any other purpose,
Lessee shall not do so without prior written consent of the Lessor. Lessee
shall take good care of the Premises and shall make all necessary repairs to
Lessee's installations. Upon the expiration or other termination of this
Lease, Lessee shall surrender the Premises to Lessor in good condition,
ordinary wear and tear, and loss by casualty or condemnation excepted.
6.2 Lessee's installations will remain, at all times, Lessee's
property and, upon termination of this Lease, Lessee shall have the right but
not the obligation to remove Lessee's installations.
SECTION 7
WAIVER OF LESSOR'S LIEN
7.1 Lessor hereby waives any and all liens rights it may have, by
statute or otherwise, in and to Lessee's installations or any portion thereof
placed upon the Premises, regardless of whether or not the same is deemed real
or personal property under applicable laws. Provided that, if Lessee is deemed
in default, as that term is defined in Section 10(a) of this Lease, then Lessor
may enforce any and all lien rights it may have, by statute or otherwise, in
and to Lessee's installations.
SECTION 8
LESSOR'S LIABILITY
8.1 Lessee agrees to hold harmless and indemnify Lessor and
Lessor's Agents of and from any and all costs, expenses, damages, including
reasonable attorney's fees, resulting from any
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occurrence or accident upon the Premises, except for injury or damages
resulting from either the willful/intentional or negligent acts of Lessor or
Lessor's agents and employees.
SECTION 9
CONDITIONS PRECEDENT TO VALIDITY OF LEASE
9.1 The enforceability and validity of this Lease is subject to
the fulfillment of each of the following conditions:
(a) Title. Lessee shall receive a favorable title
opinion, reflecting that Lessor has good and marketable title to the
Premises. Lessee shall be responsible for the costs associated with
obtaining a title opinion.
(b) Soil Tests. Lessee shall receive a favorable
engineering report, reflecting that the soil of the Premises is
suitable for Lessee's installations and intended use. Lessee shall be
responsible for the costs of obtaining an engineering report
concerning the soil of the Premises.
(c) Consents and Approvals. Lessee shall receive
appropriate approvals, consents or permits for Lessee's intended use
of the Premises from any Federal, State, County or Local regulatory
authority having jurisdiction over Lessee's proposed use of the
Premises. Lessee shall be responsible for the costs of obtaining any
necessary consents and approvals.
(d) Environmental Audit. Lessee shall receive a
favorable audit from an environmental consulting firm of Lessee's
choice, reflecting, among other things that the property is not
contaminated with hazardous materials. Hazardous materials are
defined as contaminants, oils, asbestos, radon, PCB's, hazardous
substances or
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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 Governmental authority.
Provided further, if after Lessee takes possession of the Premises,
hazardous materials are discovered to exist on, about or beneath the
Premises, or migrating to or from the Premises or arising in any other
manner whatsoever, the Lessee may immediately terminate this Lease and
owe no further duties, obligations or liabilities to the Lessor.
Lessee will responsible for the cost of obtaining an environmental
audit.
9.2 If any of the aforelisted conditions are not met to the
satisfaction of the Lessee, then Lessee may provide notice to the Lessor and
Lessee will have no liability or obligation hereunder and will be entitled to a
refund of any down payment made to the Lessor.
SECTION 10
DEFAULT
10.1 If any one or more of the following events (herein sometimes
called "events of default") shall happen:
(a) If default shall be made in the due and punctual
payment of any rent payable under this Lease when and as the same shall become
due and payable, and such default shall continue for a period of fifteen (15)
days after written notice from Lessor to Lessee specifying the items in
default; or
(b) If default shall be made by Lessee in the performance
or compliance with any of the agreements, terms, covenants or conditions in
this Lease other than those referred to in the
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foregoing subparagraph (a) of this Section 10.1 for a period of thirty (30)
days after written notice from Lessor to Lessee specifying the items in
default, or if, in the case of a default of a covenant which cannot with due
diligence be cured within said thirty (30) day period Lessee fails to commence
within said thirty (30) day period to cure such default and to diligently and
continuously proceed therewith and complete such cure within a reasonable
period of time; or
(c) If Lessee shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future federal, state
or other bankruptcy or insolvency statute, or shall seek or consent to or
acquiesce in the appointment of any bankruptcy or insolvency trustee, receiver
or liquidator of Lessee or of all or any substantial part of its properties or
of the Premises, and if such condition shall continue for a period of sixty
(60) days after notice from Lessor specifying the matter involved.
Then and in such event Lessor at any time thereafter may give written
notice to Lessee specifying such event of default or events of default and
stating that this Lease and the term hereby demised shall expire and terminate
on the date specified in such notice, which shall be at least ten (10) days
after the giving of such notice, and upon the date specified in such notice
this Lease and the term hereby demised and all rights of Lessee under this
Lease shall expire and terminate, and Lessee shall remain liable as hereinafter
provided.
10.2 Any such proceeding or action involving bankruptcy,
insolvency, reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal, state
or other
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statute, above set forth in Sections 10.1(c) and (d) hereof, shall be grounds
for termination of this Lease pursuant to the terms of this Section 11, only
when such proceeding, action or remedy shall be taken or brought by or against
the then holder of the leasehold estate under this Lease.
10.3 Upon any such expiration or termination of this Lease, Lessee
shall quit and peacefully surrender the Premises to Lessor, and Lessor, upon or
at any such expiration or termination, may without further notice enter upon
and re-enter the Premises and possess and repossess itself thereof, by force,
summary proceedings, ejectment or otherwise, and may dispossess Lessee and
remove Lessee and all other persons and property from the Premises and may
have, hold and enjoy the Premises and the right to receive all rental income of
and from the same.
10.4 In case of any such termination, re-entry or dispossession by
summary proceedings or otherwise, the rents and all other charges required to
be paid up to the time of such termination, re-entry or dispossession shall be
paid by Lessee and Lessee shall also pay to Lessor all reasonable expenses
which Lessor may then or thereafter incur for legal expenses, attorney's fees,
brokerage commissions and all other reasonable costs paid or incurred by Lessor
for restoring the Premises to good order and condition. Lessor may, at any
time and from time to time, relet the Premises, in whole or in part, for any
rental then obtainable either in its own name or as agent of Lessee, for a term
or terms which, at Lessor's option, may be for the remainder of the then
current term of this Lease or for any longer or shorter period.
10.5 If this Lease be terminated as aforesaid, Lessee nevertheless
covenants and agrees notwithstanding any entry or re-entry by Lessor whether by
summary proceedings, termination or otherwise, to pay and be liable for on the
days originally fixed herein for the payment thereof, amounts equal to the
several installments of rent and other charges reserved as they would, under
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the terms of this Lease, become due if this Lease had not been terminated or if
Lessor had not entered or re-entered as aforesaid, and whether the Premises be
relet or remain vacant in whole or in part or for a period less than the
remainder of the term, and for the whole thereof, but in the event the Premises
be relet by Lessor, Lessee shall be entitled to a credit (but not in excess of
the rent or other charges reserved under the terms of this Lease) in the net
amount of rent received by Lessor in reletting the Premises after deduction of
all expenses and costs incurred or paid in reletting the Premises and in
collecting the rent in connection therewith.
10.6 Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law, by statute or otherwise, and
the exercise or beginning of the exercise by Lessor or Lessee of any one or
more of the rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity, by statute or otherwise, shall not preclude the
simultaneous or later exercise by the part in question of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity, by statute or otherwise.
SECTION 11
DAMAGE AND DESTRUCTION; OBSTRUCTIONS
11.1 In case Lessee's installations are damaged by fire or other
casualty, Lessee shall promptly restore same at its expense, except that if
such damage occurs within two (2) years prior to the expiration of the initial
or any renewal term of this Lease and the estimated cost of restoration exceeds
fifty percent (50%) of the then replacement cost of Lessee's installations,
Lessee may either restore installations or by notice to Lessor, terminate this
Lease as of the date of said damage and in
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such event Lessee shall have the right but not the obligation to remove all or
part of its installations and rent and other charges shall be adjusted pro rata
as of said date.
SECTION 12
EMINENT DOMAIN
12.1 (a) If the fee of the entire property of which the
Premises are a part, or a portion sufficient in Lessee's determination, to
render the Premises in the sole opinion of the Lessee unsuitable for the use
which Lessee was then making of the Premises, is condemned or appropriated by
any apparent competent authority, then, and in that event, the term of this
Lease shall cease and terminate on the date possession is to be given to the
condemning authority. If the fee of less than the entire property is so
condemned or appropriated, and if the Premises can reasonably be used for
substantially the same purposes in Lessee's sole judgment, then this Lease
shall continue in full force and effect without change with respect to the
Premises.
(b) In the event of any condemnation or taking as
aforesaid, whether whole or partial, Lessee shall have the right to claim and
recover from the condemning authority or Lessor, such compensation as may be
awarded or recoverable by Lessee in Lessee's own right, for Lessee's loss of
good will, installations, moving expenses, prepaid rent and business
dislocation expenses. Provided, however, that in no event shall the Lessee's
recovery from the condemning authority or the Lessor, reduce the Lessor's net
award for the taking or condemnation to an amount less than that amount which
Lessor would have been awarded if the Premises had been condemned based on the
Premises prior use.
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(c) A sale of all or part of the Premises 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 purposes of this
Section.
(d) In the event of any termination of the Lease under
this provision, all rentals shall be prorated to the date of the vacation by
Lessee of the Premises.
12.2 Lessor and Lessee agree to promptly execute any all
instruments as may be required to effectuate the provisions of this Section.
SECTION 13
SURRENDER OF PREMISES
13.1 Lessee shall and will, on the last day of the term hereof, as
it may be extended, or upon any earlier termination of this Lease, or upon
re-entry by Lessor upon the Premises, surrender and deliver up the Premises
into the possession and use of Lessor free and clear of all liens and
encumbrances other than those, if any, created, permitted or suffered by
Lessor.
SECTION 14
INVALIDITY OF PARTICULAR PROVISIONS
14.1 If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which such term or
provision is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
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SECTION 15
ASSIGNMENT; SUBLET
15.1 Lessee shall have the right, without Lessor's prior written
consent, to assign its rights under this Lease or to sublet the Premises to a
company, partnership or corporation affiliated with or controlled by Lessee or
to their successors, or to the successor(s) to Lessee's certificates,
franchises or licenses issued by the Federal Communications Commission.
Provided further that Lessee shall have the right to sublet space on Lessee's
installations to service providers other than the affiliates of Lessee, their
successors, or to the successor(s) to Lessee's certificates, franchises or
licenses issued by the Federal Communications Commission without Lessor's prior
consent. Any other assignment of Lessee's rights under this Lease or sublease
of the Premises shall require Lessor's prior written consent, which consent
shall not be unreasonably withheld or delayed.
SECTION 16
NOTICES
16.1 All notices, demands and requests required under this Lease
shall be in writing. All such, polices, demands and requests shall be deemed
to have been properly given if sent by United States Registered or Certified
Mail, postage prepaid, addressed to Lessor at:
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
and to Lessee at: .
Montgomery Cablevision and Entertainment, Incorporated
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
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or to such other persons and addresses as Lessor and Lessee may from time to
time designate by written notice addressed to one another. Notices, demands
and requests which shall be serviced by Registered Certified Mail upon Lessor
or Lessee, in the manner aforesaid, shall be deemed sufficiently served or
given for all purposes hereunder at the time such notice, demand or request
shall be mailed United States Registered or Certified Mail as aforesaid in any
Post Office or Branch Office regularly maintained by the United States
Government.
SECTION 17
QUIET ENJOYMENT
17.1 Lessee, upon paying the rent herein provided and observing and
keeping all covenants and conditions of this Lease on its part to be kept,
shall quietly have and enjoy the Premises during the term of this Lease without
hindrance by anyone.
SECTION 18
EXISTING MORTGAGES
18.1 Lessor hereby certifies that the Premises are/are not (circle
one) subject to an existing mortgage. Lessor, upon request by Lessee, shall
procure and deliver to Lessee an Agreement in writing, duly executed by any
present and future mortgagee, which Agreement shall provide that, for so long
as Lessee is not in default in its performance of the terms, conditions and
provisions of this Lease, Lessee's rights hereunder shall not be disturbed by
any action or suit on the debt or debts secured by such mortgages, deeds of
trust or other forms or methods of financing or refinancing, and that any sale
at foreclosure will be subject to this Lease.
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SECTION 19
EXISTING LEASES
19.1 Lessor hereby certifies that the Premises are not subject to
an existing lease that will interfere with Lessee's installations or with
Lessee's intended use of the Premises.
SECTION 20
OTHER EXISTING ENCUMBRANCES
20.1 Lessor represents and warrants that Lessee's intended use of
the Premises as a site for the transmission and receipt of wireless
communication signals; for the construction and maintenance of towers, antennae
or buildings; and related facilities are not prohibited by any covenants,
restrictions, reciprocal easements, servitudes, subdivision rules or
regulations which would prohibit Lessee's intended use of the Premises. Nor
are there any easements, licenses, rights of use or other encumbrances on the
Premises which will interfere with or constructively prohibit Lessee's intended
use of the Premises.
SECTION 21
ACCESS EASEMENT
21.1 Lessor hereby represents and warrants to Lessee that Lessee
shall at all times during this Lease enjoy ingress, egress and access to and
from the Property by an open and improved public road. If no such public road
exists or ceases to exist in the future, Lessor will grant an appropriate
easement to Lessee, Lessee's affiliates, assigns, successors and/or sublessees
so that Lessee may, at its own expense, construct a suitable private access
drive to the Premises and Lessee's installations. Lessor further agrees not to
place nor allow any Third Party to place any obstruction, either permanent or
temporary, on the premises that would interfere with Lessee's installations, or
to
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otherwise use such access in a manner that interferes with Lessee's use of the
Premises. If said obstruction or interference results in Lessee's inability to
provide its customers adequate service, rent shall xxxxx until the Premises are
restored.
SECTION 22
ENVIRONMENTAL INDEMNITIES
22.1 (a) Lessor, its 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 Premises or migrating to or from the
Premises or arising in any manner whatsoever out of the violation of any
environmental requirements pertaining to the Premises 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 due to the
intentional, wanton or negligent acts of the Lessor.
(b) Notwithstanding the obligation of Lessor to indemnify
Lessee pursuant to this Agreement, Lessee shall have the right to immediately
terminate the Lease in the event of the discovery of environmental
contamination to the property or the presence of Hazardous Materials upon,
about or beneath the Premises or migrating to or from the Premises or arising
in any manner whatsoever out of the violation of any environmental requirements
pertaining to the Premises and any activities thereon. Lessee shall be
entitled to reimbursement from Lessor for the reasonable costs of relocating
its installations in the event that said environmental contamination or the
presence of Hazardous Materials is due to the intentional, wanton or negligent
acts of the Lessor.
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SECTION 23
MISCELLANEOUS PROVISIONS
23.1 Captions. The captions of this Lease are for convenience and
reference and in no way define, limit or describe the scope or intent of this
Lease, nor in any way affect this Lease.
23.2 Alabama Laws to Govern Construction and Enforcement. This
Lease shall be construed and enforced in accordance with the laws of the State
of Alabama.
23.3 Entire Agreement. Upon the execution and delivery hereof,
this Lease shall constitute the entire Agreement between Lessor and Lessee for
the Premises. This Lease cannot be changed orally, but only by an Agreement in
writing and signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
23.4 Successors and Assigns. The covenants and agreements herein
contained shall run with the Premises described on Schedule A and shall bind
and inure to the benefit of Lessor and Lessee, their respective successors and
assigns, except as otherwise provided herein.
23.5 Certificates.
(a) Lessee agrees at any time and from time to time, upon
not less than twenty (20) days' prior notice by Lessor, to execute, acknowledge
and deliver to Lessor a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), the commencement date, and the dates to which the rent has been
paid in advance, if any, and stating whether or not to the best of the
knowledge of the signer of such certificate Lessor is in default in performance
of any covenant, Agreement or condition contained in this Lease and, if so,
specifying each such default of which the signer may have knowledge, it being
intended that any such statement
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delivered pursuant to this Section may be relied upon by any prospective
purchaser of the fee or of the building of which the Premises are a part or of
Lessor's interest in this Lease.
(b) Lessor agrees at any time and from time to time, upon
not less than twenty (20) days' prior notice by Lessee, to execute, acknowledge
and deliver to Lessee a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there shall have been
modifications, that the same is in full force and effect as modified and
stating the modifications), the commencement date, and the dates to which the
rent has been paid and stating whether or not to the best knowledge of the
signer of such certificate Lessee is in default in performance of any covenant,
Agreement or condition contained in this Lease and, if so, specifying each such
default of which the signer may have knowledge, it being intended that any such
statement delivered pursuant to this Section may be relied upon by any
prospective assignee or sublessee of Lessee's interest in this Lease, or any
Lessee or sublessee of Lessee.
23.6 Litigation Expenses. The substantially prevailing party in
any litigation arising due to a dispute over the obligations and rights
hereunder shall be entitled to its reasonable attorney's fees and court costs,
including appeals, if any.
23.7 Broker Fees. If either party is represented by a real estate
broker or any other like agent 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 or like agent.
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IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be
signed and sealed as of the day and year first above written.
LESSOR: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------
By:
--------------------------------------
Its:
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LESSEE: XXXXXXXXXX CABLEVISION AND
ENTERTAINMENT, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
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Its: CFO
-------------------------------------
20
00
XXXXX XX XXXXXXX
XXXXXX XX Xxxxx
-----------------
Xx this 20th day of August, 1996, before me personally came Xxxxx X.
Xxxxxxxx Xx., to me known, who being by me duly sworn, did depose and say that
he is Xxxxx X. Xxxxxxxx. Jr., the Chief Financial Officer of Xxxxxxxxxx
Cablevision and Entertainment, Incorporated, and that he signed his name to the
above instrument on behalf of Xxxxxxxxxx Cablevision, Inc.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
(Seal) NOTARY PUBLIC
My Commission Expires: Notary Public, Xxxxx
County, Georgia
My Commission Expires March 23, 1998
22
SCHEDULE "A"
[A map of the leased premises appears here]
