<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 14, 1998
REGISTRATION NO. 333-43339
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
KNOLOGY HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
4812
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
58-2203141
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
312 WEST 8TH STREET
WEST POINT, GEORGIA 31833
(706) 645-3903
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------
WILLIAM E. MORROW
KNOLOGY HOLDINGS, INC.
312 WEST 8TH STREET
WEST POINT, GEORGIA 31833
(706) 645-8553
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------
Copies to:
STEVEN M. KAUFMAN, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 637-5600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT PRICE(1) FEE(2)
- -----------------------------------------------------------------------------------------------
11 7/8% Senior Discount Notes Due 2007..... $444,100,000 56.1449% $249,339,526 $73,556
===============================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended.
(2) Calculated pursuant to Rule 457(f) based on the book value, calculated as of
November 30, 1997, of the outstanding 11 7/8% Senior Discount Notes Due 2007
of KNOLOGY Holdings, Inc. to be canceled in the exchange transaction
hereunder. Such amount was previously paid.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 1 is being submitted to file the following exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
10.4 Sub-Lease Indenture dated November 1, 1995 by and between J. Smith Lanier & Co.
Financial Services, Inc. and ITC Holding Company, Inc.
10.5 Lease Agreement dated April 15, 1996 by and between D.L. Jordan and American
Cable Company, Inc.
10.6 Lease Agreement dated April 19, 1996 by and between B.E. Satterwhite and American
Cable Company, Inc.
10.7 Pole Attachment Agreement dated January 1, 1998 by and between Gulf Power Company
and Beach Cable, Inc.
10.8 Lease Agreement dated August 19, 1996 by and between Vaughn/Taylor, L.L.C. and
Montgomery Cablevision and Entertainment, Inc.
10.9 Lease Agreement dated August 20, 1996 by and between William H. McLemore and
Montgomery Cablevision and Entertainment, Inc.
10.10 Lease Agreement dated November 7, 1996 by and between Samuel B. Hewitt and
American Cable Company, Inc.
10.11 Site Agreement dated November 19, 1996 by and between John Walter Stowers and
Montgomery Cablevision and Entertainment, Inc.
10.12 Office Lease Agreement dated February 15, 1997 by and between Scott P. Pinckard
and Cybernet Holdings, Inc.
+10.13 Lease Agreement dated April 2, 1997 by and between Interstate Telephone Company
and Cybernet Holding, Inc.
10.14 Lease Agreement dated May 15, 1997 by and between Southern Boulevard Corporation
and Cybernet Holding d/b/a Montgomery Cablevision and Entertainment, Inc.
10.15 Lease Agreement dated August 23, 1997 by and between Interstate Fibernet, Inc.
and KNOLOGY Holdings, Inc.
+10.16 Telecommunications Facility Lease and Capacity Agreement, dated September 10,
1996, by and between Troup EMC Communications, Inc. and Cybernet Holding, Inc.
10.18 Pole Attachment Agreement dated May 21, 1990 by and between the Georgia Power
Company and American Cable Company.
10.19 License Agreement for Pole Attachments dated June 19, 1990 by and between South
Central Bell Telephone Company and Montgomery Cablevision and Entertainment, Inc.
10.20 Agreement for Attachments of Cables, Amplifiers, and Associated Equipment for the
Provision of Cable Television Service dated March 1, 1993 by and between Alabama
Power Company and Montgomery Cablevision and Entertainment, Inc.
10.25 Lease Agreement, dated December 5, 1997 by and between The Hilton Company and
KNOLOGY of Panama City, Inc.
+10.26 Billing and Collection Services Agreement dated April 2, 1997 by and between
Interstate Telephone Company and Cybernet Holding, Inc.
+10.27 Operator and Related Services Agreement dated April 14, 1997 by and between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
+10.28 Agreement for Telecommunication Services dated May 1, 1997 by and between
Cybernet Holding, Inc. and DeltaCom, Inc.
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
+10.29 First Addendum to Service Agreement dated July 7, 1997 by and between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
10.45 Ordinance No. 50-76 (Montgomery, Alabama).
10.45.1 Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
+10.51 Collocation Agreement between Interstate FiberNet and Cybernet Holding, Inc.,
dated July 1, 1997.
23.1 Consent of Arthur Andersen LLP.
24.1 Power of attorney (included on signature page).
</TABLE>
- ---------------
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidential treatment request.
<PAGE> 4
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees) as well as judgments, fines and
settlements, actually and reasonably incurred in connection with the defense of
any action, suit or proceeding in which they or any of them were or are made
parties or are threatened to be made parties by reason of their serving or
having served in such capacity. The DGCL provides, however, that such person
must have acted in good faith and in a manner such person reasonably believed to
be in (or not opposed to) the best interests of the corporation and, in the case
of a criminal action, such person must have had no reasonable cause to believe
his or her conduct was unlawful. In addition, the DGCL does not permit
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation, unless, and only
to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for costs the court deems proper in light of liability
adjudication. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended.
The Company's Certificate of Incorporation (the "Certificate") contains
provisions that provide that no director of the Company shall be liable for
breach of fiduciary duty as a director except for (1) any breach of the
directors' duty of loyalty to the Company or its stockholders; (2) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law; (3) liability under Section 174 of the DGCL; or (4) any
transaction from which the director derived an improper personal benefit. Under
the Bylaws of the Company, the Company is required to advance expenses incurred
by an officer or director in defending or participating in any action which such
director or officer is made a party to or is threatened to be made a party to by
reason of his or her serving or having served as an officer or director if the
director or officer undertakes to repay such amount if it is determined that the
director or officer is not entitled to indemnification. In addition, the Company
intends to enter into indemnity agreements with each of its directors pursuant
to which the Company will agree to indemnify the directors as permitted by the
DGCL.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*1.1 Placement Agreement, dated October 16, 1997, between KNOLOGY Holdings, Inc. and
Morgan Stanley & Co. Incorporated, for itself and the other Placement Agents
named therein (the "Placement Agents").
*2.1 Agreement and Plan of Merger, dated December 5, 1997, by and among KNOLOGY
Holdings, Inc., KNOLOGY of Panama City, Inc., Beach Cable, Inc. and L. Charles
Hilton.
*3.1 Certificate of Incorporation of KNOLOGY Holdings, Inc.
*3.2 Amended and Restated Bylaws of KNOLOGY Holdings, Inc.
*4.1 Indenture dated as of October 22, 1997 between KNOLOGY Holdings, Inc. and United
States Trust Company of New York, as Trustee, relating to the 11 7/8% Senior
Discount Notes Due 2007 of KNOLOGY Holdings, Inc.
*4.2 Registration Rights Agreement, dated October 22, 1997, between KNOLOGY Holdings,
Inc., the Placement Agents and SCANA Communications, Inc.
*4.3 Form of Senior Discount Note (contained in Indenture filed as Exhibit 4.1).
*4.4 Form of Exchange Note (contained in Indenture filed as Exhibit 4.1).
</TABLE>
II-1
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
**5.1 Opinion of Hogan & Hartson L.L.P.
**8.1 Tax Opinion of Hogan & Hartson L.L.P.
*10.1 Unit Purchase Agreement, dated as of October 16, 1997 between KNOLOGY Holdings,
Inc. and SCANA Communications, Inc.
*10.2 Warrant Agreement, dated as of October 22, 1997, between KNOLOGY Holdings, Inc.
and United States Trust Company of New York (including form of Warrant
Certificate).
*10.3 Warrant Registration Rights Agreement, dated as of October 22, 1997, between
KNOLOGY Holdings, Inc. and United States Trust Company of New York.
10.4 Sub-Lease Indenture dated November 1, 1995 by and between J. Smith Lanier & Co.
Financial Services, Inc. and ITC Holding Company, Inc.
10.5 Lease Agreement dated April 15, 1996 by and between D.L. Jordan and American
Cable Company, Inc.
10.6 Lease Agreement dated April 19, 1996 by and between B.E. Satterwhite and American
Cable Company, Inc.
10.7 Pole Attachment Agreement dated January 1, 1998 by and between Gulf Power Company
and Beach Cable, Inc.
10.8 Lease Agreement dated August 19, 1996 by and between Vaughn/Taylor, L.L.C. and
Montgomery Cablevision and Entertainment, Inc.
10.9 Lease Agreement dated August 20, 1996 by and between William H. McLemore and
Montgomery Cablevision and Entertainment, Inc.
10.10 Lease Agreement dated November 7, 1996 by and between Samuel B. Hewitt and
American Cable Company, Inc.
10.11 Site Agreement dated November 19, 1996 by and between John Walter Stowers and
Montgomery Cablevision and Entertainment, Inc.
10.12 Office Lease Agreement dated February 15, 1997 by and between Scott P. Pinckard
and Cybernet Holdings, Inc.
+10.13 Lease Agreement dated April 2, 1997 by and between Interstate Telephone Company
and Cybernet Holding, Inc.
10.14 Lease Agreement dated May 15, 1997 by and between Southern Boulevard Corporation
and Cybernet Holding d/b/a Montgomery Cablevision and Entertainment, Inc.
10.15 Lease Agreement dated August 23, 1997 by and between Interstate Fibernet, Inc.
and KNOLOGY Holdings, Inc.
+10.16 Telecommunications Facility Lease and Capacity Agreement, dated September 10,
1996, by and between Troup EMC Communications, Inc. and Cybernet Holding, Inc.
10.17 [Intentionally left blank.]
10.18 Pole Attachment Agreement dated May 21, 1990 by and between the Georgia Power
Company and American Cable Company.
10.19 License Agreement for Pole Attachments dated June 19, 1990 by and between South
Central Bell Telephone Company and Montgomery Cablevision and Entertainment, Inc.
10.20 Agreement for Attachments of Cables, Amplifiers, and Associated Equipment for the
Provision of Cable Television Service dated March 1, 1993 by and between Alabama
Power Company and Montgomery Cablevision and Entertainment, Inc.
</TABLE>
II-2
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
**10.21 License Agreement for Pole Attachments and/or Conduit Occupancy dated July 28,
1993 by and between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph Company and American Cable Company.
**10.22 License Agreement dated September 29, 1995 by and between Montgomery Cablevision
and Entertainment, Inc. and American Communications Services of Montgomery, Inc.
**10.23 License Agreement dated January 17, 1996 by and between American Cable, Inc. and
American Communication Services of Columbus, Inc.
**10.24 Addendum to License Agreement dated April 21, 1997 by and between American Cable,
Inc. and American Communication Services of Columbus, Inc.
10.25 Lease Agreement, dated December 5, 1997 by and between The Hilton Company and
KNOLOGY of Panama City, Inc.
+10.26 Billing and Collection Services Agreement dated April 2, 1997 by and between
Interstate Telephone Company and Cybernet Holding, Inc.
+10.27 Operator and Related Services Agreement dated April 14, 1997 by and between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
+10.28 Agreement for Telecommunication Services dated May 1, 1997 by and between
Cybernet Holding, Inc. and DeltaCom, Inc.
+10.29 First Addendum to Service Agreement dated July 7, 1997 by and between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
*10.30 Interconnection Agreement by and among BellSouth Communications, Inc., Cybernet
Holding, Inc., American Cable, Inc. and Montgomery Cablevision & Entertainment,
Inc., dated April 15, 1997.
*10.31 Amendment To Interconnection Agreement by and among BellSouth Telecommunications,
Inc., Cybernet Holding, Inc., American Cable, Inc. and Montgomery Cablevision &
Entertainment, dated May 1, 1997.
*10.32 Second Amendment To Interconnection Agreement by and among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc. and
Montgomery Cablevision & Entertainment, dated July 7, 1997.
*10.33 Commitment Letter from First Union National Bank to KNOLOGY Holdings, Inc., dated
October 15, 1997.
*10.33.1 Commitment Extension Letter from First Union National Bank to KNOLOGY Holdings,
Inc., dated December 12, 1997.
*10.34 Certificate of Membership with National Cable Television Cooperative, dated
January 29, 1996, of Cybernet Holding, Inc.
*10.35 Stockholders' Agreement among KNOLOGY Holdings, Inc. and Certain Stockholders
Thereof dated as of December 8, 1995.
*10.36 Amendment No. 1 to Stockholders' Agreement dated as of January 25, 1996.
*10.37 Amendment No. 2 to Stockholders' Agreement dated as of April 18, 1996.
*10.38 Amended and Restated Agreement Among Shareholders Among KNOLOGY Holdings, Inc.
and Certain Shareholders thereof dated as of July 28, 1997.
*10.39 Ordinance (Harris County, Georgia) dated April 6, 1982.
*10.40 Ordinance (Harris County, Georgia) to Amend Cable Franchise Ordinance of April 6,
1982, dated November 5, 1996.
*10.41 Ordinance (Bibb City, Georgia) dated October 5, 1990.
*10.42 Ordinance No. 88-53 (Columbus, Georgia) dated May 17, 1988.
</TABLE>
II-3
<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*10.43 Ordinance No. 89-3 (Columbus, Georgia) dated January 10, 1989.
*10.44 Ordinance No. 16-90 (Montgomery, Alabama) dated March 6, 1990.
10.45 Ordinance No. 50-76 (Montgomery, Alabama).
10.45.1 Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
*10.46 Resolution No. 58-95 (Montgomery, Alabama) dated April 6, 1995.
*10.47 Resolution No. 92-7 (Panama City Beach, Florida) dated July 23, 1992.
*10.48 License (Bay County, Florida) dated January 5, 1993.
*10.49 Resolution No. 97-22 (Panama City Beach, Florida) dated December 3, 1997.
*10.50 Resolution No. 2075 (Bay County, Florida) dated November 18, 1997.
+10.51 Collocation Agreement between Interstate FiberNet and Cybernet Holding, Inc.,
dated July 1, 1997.
*11.1 Computation of Earnings Per Share of Common Stock.
*12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges.
*21.1 Subsidiaries of KNOLOGY Holdings, Inc.
23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
24.1 Power of attorney (included on signature page).
*25.1 Statement on Form T-1 of Eligibility of Trustee.
*27.1 Financial Data Schedule for the year ended December 31, 1996.
*27.2 Financial Data Schedule for the nine month period ended September 30, 1997.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
*99.3 Form of Letter to Brokers, et al.
*99.4 Form of Letter to Clients.
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment.
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidential treatment request.
(b) Financial Statement Schedules
The following financial statement schedule is filed herewith:
Schedule I--Valuation and Qualifying Accounts
Schedules not listed above have been omitted because they are inapplicable
or the information required to be set forth therein is provided in the Combined
Financial Statements of the Company or notes thereto.
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the
II-4
<PAGE> 8
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of this Registration Statement through
the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
The undersigned registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement when it becomes
effective; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
II-5
<PAGE> 9
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECURITIES ACT, THE COMPANY HAS DULY CAUSED
THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF WEST POINT, GEORGIA, ON THIS 14TH DAY
OF JANUARY, 1998.
KNOLOGY Holdings, Inc.
By /s/ WILLIAM E. MORROW
------------------------------------
WILLIAM E. MORROW
CHIEF EXECUTIVE OFFICER
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints O. Gene Gabbard, William E. Morrow and James K.
McCormick, jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact, with full power of substitution, for him and his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents with full power and authority to do so and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of Securities Act, this Registration Statement
has been signed below by the following persons, in the capacities indicated
below, on this 14th day of January, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
* Chairman of the Board and Director
- ---------------------------------------------
O. GENE GABBARD
/s/ WILLIAM E. MORROW President, Chief Executive Officer and
- --------------------------------------------- Director (Principal executive officer)
WILLIAM E. MORROW
/s/ JAMES K. MCCORMICK Chief Financial Officer and Secretary
- --------------------------------------------- (Principal financial officer and principal
JAMES K. MCCORMICK accounting officer)
* Director
- ---------------------------------------------
RICHARD BODMAN
* Director
- ---------------------------------------------
DONALD W. BURTON
* Director
- ---------------------------------------------
CAMPBELL B. LANIER, III
</TABLE>
II-6
<PAGE> 10
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
* Director
- ---------------------------------------------
CLARENCE MARSHALL
/s/ WILLIAM H. SCOTT, III Director
- ---------------------------------------------
WILLIAM H. SCOTT, III
* Director
- ---------------------------------------------
ANDREW M. WALKER
*By: /s/ WILLIAM E. MORROW
- ---------------------------------------------
WILLIAM E. MORROW
ATTORNEY-IN-FACT
</TABLE>
II-7
<PAGE> 11
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
We have audited in accordance with generally accepted auditing standards,
the financial statements of KNOLOGY Holdings, Inc. included in the Company's
Registration Statement on Form S-4 (No. 333-43339) and have issued our report
thereon dated May 14, 1997 (except with respect to Note 10, as to which the date
is December 19, 1997). Our audit was made for the purpose of forming an opinion
on the basic financial statements taken as a whole. The schedule listed in the
index above is the responsibility of the Company's management and is presented
for purposes of complying with the Securities and Exchange Commission's rules
and is not part of the basic financial statements. This schedule has been
subjected to the auditing procedures applied in the audit of the basic financial
statements and, in our opinion, fairly states in all material respects the
financial data required to be set forth therein in relation to the basic
financial statements taken as a whole.
ARTHUR ANDERSEN LLP
May 14, 1997
<PAGE> 12
SCHEDULE I
KNOLOGY HOLDINGS, INC. AND SUBSIDIARIES
(SUCCESSOR COMPANY)
AND KNOLOGY OF MONTGOMERY, INC.
(PREDECESSOR COMPANY)
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEAR ENDED DECEMBER 31, 1994, THE FOUR MONTHS
ENDED APRIL 30, 1995, THE EIGHT MONTHS ENDED DECEMBER 31, 1995,
AND THE YEAR ENDED DECEMBER 31, 1996,
<TABLE>
<CAPTION>
PREDECESSOR COMPANY SUCCESSOR COMPANY
------------------------- ----------------------------
FOUR EIGHT
YEAR MONTHS MONTHS YEAR
ENDED ENDED ENDED ENDED
DECEMBER 31, APRIL 30, DECEMBER 31, DECEMBER 31,
1994 1995 1995 1996
------------ --------- ------------ ------------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts, balance at
beginning of year............................ $ 57,147 $ 4,147 $ 931 $ 17,113
Addition charged to cost and expense........... 47,000 16,754 36,848 81,082
Deductions..................................... (100,000) (19,970) (20,666) (74,853)
-------- ------- ------- -------
Allowance for doubtful accounts, balance at end
of year...................................... $ 4,147 $ 931 $ 17,113 $ 23,342
======== ======= ======= =======
</TABLE>
<PAGE> 13
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*1.1 Placement Agreement, dated October 16, 1997, between KNOLOGY Holdings, Inc. and
Morgan Stanley & Co. Incorporated, for itself and the other Placement Agents
named therein (the "Placement Agents").
*2.1 Agreement and Plan of Merger, dated December 5, 1997, by and among KNOLOGY
Holdings, Inc., KNOLOGY of Panama City, Inc., Beach Cable, Inc. and L. Charles
Hilton.
*3.1 Certificate of Incorporation of KNOLOGY Holdings, Inc.
*3.2 Amended and Restated Bylaws of KNOLOGY Holdings, Inc.
*4.1 Indenture dated as of October 22, 1997 between KNOLOGY Holdings, Inc. and United
States Trust Company of New York, as Trustee, relating to the 11 7/8% Senior
Discount Notes Due 2007 of KNOLOGY Holdings, Inc.
*4.2 Registration Rights Agreement, dated October 22, 1997, between KNOLOGY Holdings,
Inc., the Placement Agents and SCANA Communications, Inc.
*4.3 Form of Senior Discount Note (contained in Indenture filed as Exhibit 4.1).
*4.4 Form of Exchange Note (contained in Indenture filed as Exhibit 4.1).
**5.1 Opinion of Hogan & Hartson L.L.P.
**8.1 Tax Opinion of Hogan & Hartson L.L.P.
*10.1 Unit Purchase Agreement, dated as of October 16, 1997 between KNOLOGY Holdings,
Inc. and SCANA Communications, Inc.
*10.2 Warrant Agreement, dated as of October 22, 1997, between KNOLOGY Holdings, Inc.
and United States Trust Company of New York (including form of Warrant
Certificate).
*10.3 Warrant Registration Rights Agreement, dated as of October 22, 1997, between
KNOLOGY Holdings, Inc. and United States Trust Company of New York.
10.4 Sub-Lease Indenture dated November 1, 1995 by and between J. Smith Lanier & Co.
Financial Services, Inc. and ITC Holding Company, Inc.
10.5 Lease Agreement dated April 15, 1996 by and between D.L. Jordan and American
Cable Company, Inc.
10.6 Lease Agreement dated April 19, 1996 by and between B.E. Satterwhite and American
Cable Company, Inc.
10.7 Pole Attachment Agreement dated January 1, 1998 by and between Gulf Power Company
and Beach Cable, Inc.
10.8 Lease Agreement dated August 19, 1996 by and between Vaughn/Taylor, L.L.C. and
Montgomery Cablevision and Entertainment, Inc.
10.9 Lease Agreement dated August 20, 1996 by and between William H. McLemore and
Montgomery Cablevision and Entertainment, Inc.
10.10 Lease Agreement dated November 7, 1996 by and between Samuel B. Hewitt and
American Cable Company, Inc.
10.11 Site Agreement dated November 19, 1996 by and between John Walter Stowers and
Montgomery Cablevision and Entertainment, Inc.
10.12 Office Lease Agreement dated February 15, 1997 by and between Scott P. Pinckard
and Cybernet Holdings, Inc.
+10.13 Lease Agreement dated April 2, 1997 by and between Interstate Telephone Company
and Cybernet Holding, Inc.
10.14 Lease Agreement dated May 15, 1997 by and between Southern Boulevard Corporation
and Cybernet Holding d/b/a Montgomery Cablevision and Entertainment, Inc.
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
10.15 Lease Agreement dated August 23, 1997 by and between Interstate Fibernet, Inc.
and KNOLOGY Holdings, Inc.
+10.16 Telecommunications Facility Lease and Capacity Agreement, dated September 10,
1996, by and between Troup EMC Communications, Inc. and Cybernet Holding, Inc.
10.17 [Intentionally left blank.]
10.18 Pole Attachment Agreement dated May 21, 1990 by and between the Georgia Power
Company and American Cable Company.
10.19 License Agreement for Pole Attachments dated June 19, 1990 by and between South
Central Bell Telephone Company and Montgomery Cablevision and Entertainment, Inc.
10.20 Agreement for Attachments of Cables, Amplifiers, and Associated Equipment for the
Provision of Cable Television Service dated March 1, 1993 by and between Alabama
Power Company and Montgomery Cablevision and Entertainment, Inc.
**10.21 License Agreement for Pole Attachments and/or Conduit Occupancy dated July 28,
1993 by and between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph Company and American Cable Company.
**10.22 License Agreement dated September 29, 1995 by and between Montgomery Cablevision
and Entertainment, Inc. and American Communications Services of Montgomery, Inc.
**10.23 License Agreement dated January 17, 1996 by and between American Cable, Inc. and
American Communication Services of Columbus, Inc.
**10.24 Addendum to License Agreement dated April 21, 1997 by and between American Cable,
Inc. and American Communication Services of Columbus, Inc.
10.25 Lease Agreement, dated December 5, 1997 by and between The Hilton Company and
KNOLOGY of Panama City, Inc.
+10.26 Billing and Collection Services Agreement dated April 2, 1997 by and between
Interstate Telephone Company and Cybernet Holding, Inc.
+10.27 Operator and Related Services Agreement dated April 14, 1997 by and between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
+10.28 Agreement for Telecommunication Services dated May 1, 1997 by and between
Cybernet Holding, Inc. and DeltaCom, Inc.
+10.29 First Addendum to Service Agreement dated July 7, 1997 by and between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
*10.30 Interconnection Agreement by and among BellSouth Communications, Inc., Cybernet
Holding, Inc., American Cable, Inc. and Montgomery Cablevision & Entertainment,
Inc., dated April 15, 1997.
*10.31 Amendment To Interconnection Agreement by and among BellSouth Telecommunications,
Inc., Cybernet Holding, Inc., American Cable, Inc. and Montgomery Cablevision &
Entertainment, dated May 1, 1997.
*10.32 Second Amendment To Interconnection Agreement by and among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc. and
Montgomery Cablevision & Entertainment, dated July 7, 1997.
*10.33 Commitment Letter from First Union National Bank to KNOLOGY Holdings, Inc., dated
October 15, 1997.
*10.33.1 Commitment Extension Letter from First Union National Bank to KNOLOGY Holdings,
Inc., dated December 12, 1997.
*10.34 Certificate of Membership with National Cable Television Cooperative, dated
January 29, 1996, of Cybernet Holding, Inc.
</TABLE>
<PAGE> 15
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*10.35 Stockholders' Agreement among KNOLOGY Holdings, Inc. and Certain Stockholders
Thereof dated as of December 8, 1995.
*10.36 Amendment No. 1 to Stockholders' Agreement dated as of January 25, 1996.
*10.37 Amendment No. 2 to Stockholders' Agreement dated as of April 18, 1996.
*10.38 Amended and Restated Agreement Among Shareholders Among KNOLOGY Holdings, Inc.
and Certain Shareholders thereof dated as of July 28, 1997.
*10.39 Ordinance (Harris County, Georgia) dated April 6, 1982.
*10.40 Ordinance (Harris County, Georgia) to Amend Cable Franchise Ordinance of April 6,
1982, dated November 5, 1996.
*10.41 Ordinance (Bibb City, Georgia) dated October 5, 1990.
*10.42 Ordinance No. 88-53 (Columbus, Georgia) dated May 17, 1988.
*10.43 Ordinance No. 89-3 (Columbus, Georgia) dated January 10, 1989.
*10.44 Ordinance No. 16-90 (Montgomery, Alabama) dated March 6, 1990.
10.45 Ordinance No. 50-76 (Montgomery, Alabama).
10.45.1 Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
*10.46 Resolution No. 58-95 (Montgomery, Alabama) dated April 6, 1995.
*10.47 Resolution No. 92-7 (Panama City Beach, Florida) dated July 23, 1992.
*10.48 License (Bay County, Florida) dated January 5, 1993.
*10.49 Resolution No. 97-22 (Panama City Beach, Florida) dated December 3, 1997.
*10.50 Resolution No. 2075 (Bay County, Florida) dated November 18, 1997.
+10.51 Collocation Agreement between Interstate FiberNet and Cybernet Holding, Inc.,
dated July 1, 1997.
*11.1 Computation of Earnings Per Share of Common Stock.
*12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges.
*21.1 Subsidiaries of KNOLOGY Holdings, Inc.
23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
24.1 Power of attorney (included on signature page).
*25.1 Statement on Form T-1 of Eligibility of Trustee.
*27.1 Financial Data Schedule for the year ended December 31, 1996.
*27.2 Financial Data Schedule for the nine month period ended September 30, 1997.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
*99.3 Form of Letter to Brokers, et al.
*99.4 Form of Letter to Clients.
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment.
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidential treatment request.
<PAGE> 1
EXHIBIT 10.4
PARTIES: This Sub-Lease Indenture made and entered into this 1st day of
November 1995, by and between J. SMITH LANIER & CO. FINANCIAL
SERVICES, Inc., P.O. Box 550, West Point, GA 31833 hereinafter
referred to as "LANDLORD" and ITC HOLDING COMPANY, INC.
hereinafter referred to as "TENANT".
WITNESSETH
PREMISES: That LANDLORD for and in consideration of the rents reserve to
be paid and the covenants to be performed, has sub-leased and by
these presents does sub-lease, unto TENANT certain premises in
WEST POINT, GEORGIA (TROUP COUNTY) described as follows;
312 West 8th Street in the city of West Point,
Troup County, Georgia.
310 Square feet Common Area
1,740 Square feet Office Space
-----
2,050 TOTAL SQUARE FOOTAGE
RENT AND
TERM To have and to hold the said property from 1st day of November
1995 on a month to month basis, thence next ensuing, TENANT to
pay therefore during said term the sum of Five hundred
ninety-seven dollars and 92/100 ($597.92) on the 1st day of each
month, beginning with the 1st of November 1995, at the office of
LANDLORD'S shown above. All utilities will continue to be
prorated monthly and billed by LANDLORD.
RENEWAL: TENANT shall continue this sub-lease on a month to month basis
at the then effective rate until 90 written notice is given by
either party to the other of the intention to terminate.
USE: Premises are to be sub-leased to and used by TENANT for offices
and/or related business type activities ONLY, TENANT agreeing
that he will not put the premises to any illegal or unlawful use
nor to any use which will increase the insurance thereon.
<PAGE> 2
-2-
REPAIRS: TENANT has examined premises and agrees that they are in good
state of repair, except in the following particulars, which
LANDLORD agrees to repair promptly:
NONE
-----------------------------------------------------------------
-----------------------------------------------------------------
TENANT agrees to bear the expense of keeping the premises,
together with any fixtures installed therein, in good condition,
ordinary wear and tear excepted, except broken glass which shall
be replaced at TENANT'S expense regardless of how caused, and
except the expense of keeping open all water and sewerage pipes,
electrical and heat pump if determined to be caused by neglect of
TENANT. LANDLORD will be responsible for PLUMBING, ELECTRICAL,
HEATING AND AIR as long as it is determined to be from normal
wear and tear. At the expiration, premises will be returned by
TENANT "broom clean" with all keys.
DAMAGES-
INJURIES: TENANT will give LANDLORD notice in writing, specifically
pointing out any defects in the premises which may arise
subsequently and agrees that LANDLORD may have not less than ten
days to remedy such defects. In the absence of such notice and
until the expiration of said ten days, TENANT agrees that
LANDLORD is released of any and all liability therefrom for
injuries or damage to TENANT, his family, servants or guests,
TENANT hereby specifically waiving any law of the State of
Georgia in conflict herewith or requiring inspection by LANDLORD.
If a member of TENANT family, a guest or servant recovers against
LANDLORD under such circumstances, TENANT agrees to indemnify and
hold LANDLORD harmless for such loss.
GENERAL: Provisions with reference to remedies in case of default,
abandonment, or bankruptcy, with reference to LANDLORD'S right to
repossess, and with reference to waiver are shown on page 4 and 5
hereof. THEY ARE A PART OF THIS AGREEMENT.
NOTICES: All notices provided for hereunder must be in writing. Such
notices mailed to or left at the within named premises shall
constitute notice to TENANT, and notice to the LANDLORD shall be
accomplished by like document to LANDLORD'S as herein shown.
<PAGE> 3
-3-
INSPECTION: Upon reasonable notice of not less than twelve hours to TENANT,
LANDLORD may enter premises for the purpose of inspection, repair
or showing to prospective purchaser or tenant. After notice of
termination of lease, LANDLORD may place rental signs on the
property.
POSSESSION: If LANDLORD is prevented by law or through no fault of his in
giving possession on the date herein provided, there shall be no
liability for damages of any kind resulting from such failure.
ADVERTISING: All rights to advertise on premises or place signs thereon
shall be reserved to the LANDLORD.
INTEREST AND
COSTS: All sums due thereunder shall bear interest at 5% per ammum
after maturity and if placed with an attorney for collection,
LANDLORD may recover reasonable attorney's fees at 15% as cost of
collection.
FIRE: Should the premises be rendered untenable by fire or other
casualty, the lease is to terminate. Rent shall not abate in case
of partial damage which does not render the dwelling untenable,
in which case repairs will be promptly made.
FIXTURES: No fixtures are to be installed nor alterations and repairs are
to be made by TENANT without the written consent of LANDLORD, but
when so made shall become a part of the building including
fixtures constructively attached, such as stoves and like
fixtures, or others which are covered by written agreement, which
shall be removable by TENANT at the end of the term; provided,
all rent due under this lease has been paid and provided same can
be done without damage to the premises.
SPECIAL: SPECIAL PROVISIONS OF THIS LEASE
1. This is a net lease. LANDLORD will be responsible for
insurance, property taxes and exterior improvements. TENANT
will be responsible for pro-rata share of utilities and
responsible for cleaning service and pest control.
2. Interior improvements and betterments will be made at expense
and liability of TENANT with approval of LANDLORD.
<PAGE> 4
-4-
5. Space may not be used for wholesale or retail liquor or
alcoholic beverage distribution or sale.
ADDITIONAL PROVISIONS OF THIS LEASE
DEFAULT: Upon failure of TENANT to pay any sums hereunder promptly, time
being of the essence, or upon breach by TENANT of any of the
terms of this lease, the balance due, hereunder for the full
remainder of the term shall become due and payable at once by
TENANT. TENANT expressly represents that all furniture, fixtures,
appliances and equipment installed at premises are his property
and that no furniture, fixtures or other property shall be
removed by TENANT from the premises while any provision of this
sub-lease is in default.
ABANDONMENT: If sub-lease is in default and TENANT, his family and servants
have moved from the premises, LANDLORD may thereupon re-enter
take possession of the said premises, and furniture and other
belongings of the TENANT which may be in same, without legal
process, which will terminate any right of TENANT to re-enter.
REPOSSESSION: In case of abandonment of premises by TENANT, or following
default, the surrender of possession on demand, or eviction by
law, LANDLORD may retake possession immediately and the retaking
of possession by LANDLORD, in absence of express election in
writing to do so, shall not terminate this sub-lease. LANDLORD
shall have the right to recover immediately as damages, rentals
to the end of the sub-lease. LANDLORD in subletting premises
shall be acting as TENANT'S agent to reduce TENANT'S loss, any
net sums received by the LANDLORD to apply as payment on any
judgment obtained of balance due. After the same is satisfied,
LANDLORD is to pay anything received to TENANT.
BANKRUPTCY: IN case of bankruptcy, insolvency or receivership of TENANT,
LANDLORD is to have the right at his option to forthwith
terminate the sub-lease and to proceed for any sum then due
hereunder and also damages for the breach of said sub-lease.
TENANT waives and renounces for himself all HOMESTEAD and
EXEMPTION rights of this State, of the United States, or any
other State, and as additional security hereunder, assigns to
LANDLORD as his attorney in fact to file claim for Homestead and
to receive and accept same in TENANT'S name in any bankruptcy
proceedings.
<PAGE> 5
-5-
WAIVER: If in any instance, LANDLORD shall allow a delay or suspend any
provision in this sub-lease, such waiver shall not prevent
LANDLORD from insisting upon a strict observance thereof at any
subsequent date.
Executed under seal in duplicate on the day and year first
above written:
<TABLE>
<S> <C>
/s/ Douglas Cox (L.S.) /s/ J. Smith Lanier II (L.S.)
- ------------------------------------ ------------------------------------
TENANT LANDLORD
ITC HOLDING CO., INC. J. SMITH LANIER & CO.
P.O. BOX 510 FINANCIAL SERVICES, INC.
West Point, Georgia 31833 P.O. BOX 550
West Point, Georgia 31833
/s/ Sue Ellen Lanier (L.S.) /s/ Janice Gaulding (L.S.)
- ------------------------------------ ------------------------------------
ATTEST ATTEST
</TABLE>
<PAGE> 1
EXHIBIT 10.5
STATE OF GEORGIA
COUNTY OF MUSCOGEE
LEASE
THIS LEASE is made and entered into as of the 15th day of April,
1996, by and between D. L Jordan, an Owner ("Lessor" or "Landlord") and American
Cable Company Inc., a Georgia Corporation ("Lessee" or "Tenant").
1. Definitions. For purposes of this Lease, the following
terms shall have the following meanings, unless the context requires otherwise:
(a) "Additional Rent" shall mean all those payments
required of Lessee and designated as Additional Rent below.
(b) Basic Rent" shall mean the monthly rental specified
and provided for in this Lease.
(c) "Commencement Date" shall mean the date on which the
term of this Lease commences.
(d) "Lessor" shall mean the Lessor named in this Lease,
together with Lessor's successors and assigns.
(e) "Laws" shall mean all federal, state, county,
municipal and other governmental constitutions, statutes, ordinances, codes,
regulations, resolutions, rules and directives and all decisions of courts,
administrative bodies, and other authorities construing any of the foregoing.
"Law" shall be the singular reference to Laws.
(f) "Lessee" shall mean the Lessee named in this Lease,
together with Lessee's successors and permitted assigns.
(g) "Lease" shall mean this Lease, together with any and
all exhibits, special stipulations and attachments which may be part of this
Lease.
(h) "Lease Year" shall mean the twelve (12) month period
beginning on the Commencement Date and ending at midnight the day before the
first anniversary of the Commencement Date, and any similar twelve month periods
occurring throughout the term of this Lease.
(i) "Mortgage" shall mean any deed to secure debt,
mortgage, deed of trust or other conveyance of, or lien or encumbrance against,
the Premises securing any debt, whether now existing or hereafter incurred.
"Mortgages" shall mean more than one "Mortgage."
(j) "Mortgagee" shall mean the holder of any Mortgage
together with the holder's heirs, legal representatives, successors, transferees
and assigns. "Mortgagees" shall mean more than one Mortgagee.
(k) "Premises" shall mean an 8,000 square foot building
on approximately 1.4 acres as shown generally on Exhibit "B" attached. The
exact street address of the property shall be 1701 Boxwood Place, Columbus,
Georgia, 31906, and a legal description shall be, Lot 1 07-A, Boxwood Place
Commercial Park, lying in Land Lots 96 and 113 Coweta Reserve, Columbus,
Muscogee County, Georgia.
2. Lease of Premises. In consideration of the covenants and
agreements to be performed by Lessee and for the rent and upon the terms and
conditions stated, Lessor lets and leases the Premises to Lessee. This Lease is
entered into in conjunction with a "build to suit" agreement in which the
Premises will be constructed by Lessor for Lessee in accordance with certain
plans and specifications that have been mutually agreed to and accepted by the
Lessor and Lessee.
<PAGE> 2
3. Term. The term of this lease shall commence on the 30th
day after Lessee takes possession of the Premises, and shall terminate at
midnight on the last day of the 120th month thereafter, unless the term is
extended as set forth herein and in Exhibit "A" attached hereto and incorporated
herein.
4. Rent. (a) Lessee shall pay to Lessor, at Lessor's
address for notice hereinafter set forth or at such other place as Lessor may
specify, without any prior notice or demand, the Basic Rent of See Special
Stipulations, Exhibit "A" ($ See Exhibit "A") Dollars per year during the term
of this Lease in equal monthly installments of $ See Exhibit "A". Basic Rent
shall be due and payable monthly in advance, beginning on the Commencement Date
and continuing on the first day of each month thereafter throughout the term of
this Lease. If the Commencement Date is other than the first day of a month,
the amount of Basic Rent payable on the Commencement Date shall be
one-thirtieth (1/30) of the monthly Basic Rent for each day prior to the first
day of the next month, and, if the term of this Lease terminates other than on
the last day of a month, the amount of the final installment of Basic Rent
shall be one-thirtieth (1/30) of the monthly Basic Rent for each day then
remaining in the Lease term. Basic Rent not paid when due shall bear interest
at the rate of eighteen percent (18%) per annum from the date due until paid.
(b) Lessee shall also pay to Lessor, as Additional Rent, the
following: See Special Stipulations, Exhibit "A".
5. Use. Lessee shall use the Premises only for the purpose
of Providing interactive broad band network services, including without
limitation, the following related uses: receiving, transmitting, office,
administrative, warehousing, sales and other related uses, and for no other
purpose. In no event shall Lessee use the Premises for any illegal purpose, in
violation of any Law, of in any manner which constitutes a public or private
nuisance. Lessor does not make, and has not made, any representation regarding
the zoning of the Premises. Lessee shall use the Premises and keep them occupied
at all times during the term of this Lease, and Lessee shall not abandon, vacate
or cease to use the Premises during the term of this Lease.
6. Utilities. Except as otherwise provided below, Lessee
shall make all arrangements for, and shall pay when due all charges for, all
utilities and services furnished to the Premises or used by Lessee, including
but not limited to electricity, gas, fuel, heat, water, sewer, telephone, power,
sanitary services and trash collection. Lessee shall also make all arrangements
for, and shall pay when due all charges for, connection of any such utility or
service to the Premises. Exceptions: Lessor shall construct the building on the
Premises so that utilities are readily accessible to the Premises and are
available to the 8,000 square foot building that Lessor shall construct as
herein provided.
7. Repairs by Lessor. Lessor shall keep or cause to be kept
the foundation, roof and structural portions of the walls of the Premises, and
main service lines to heating, water, sewer, electrical, cooling, ventilation
and sprinkler systems (if any) in good order, repair and condition except for
damages thereto caused by the acts or omissions of Lessee, its agents, employees
or invitees or by any failure of Lessee to comply fully with Lessee's
obligations under Paragraph 8 of this Lease. Lessor shall have no other
obligation for maintenance, replacement or repair of the Premises. Lessor shall
have no obligation to inspect the Premises. Lessee shall report to Lessor any
repairs that are Lessor's responsibility as soon as practical after their
discovery. Lessor shall repair and maintain the Premises and make replacements
to the Premises which arise from or which are necessitated by Lessor's
construction of the Premises.
8. Repairs by Lessee. Expect for the obligations to be
performed by Lessor as provided herein, Lessee shall perform all maintenance and
repair of the Premises, and shall make all replacements to the Premises. Lessee
shall, at Lessee's own cost and expense, put, keep, replace, maintain and repair
the Premises as required by this Paragraph 8, so that at all times the Premises
shall be in good, safe and substantial condition, at least as good as the
condition the Premises were in on the Commencement Date, normal wear and tear
excepted. At the termination of the term of this Lease, Lessee shall leave the
Premises in a condition at least as good as the condition the Premises were in
on the Commencement Date, excepting only ordinary wear and tear. Provided,
however, Lessee's obligations under this Paragraph 8 shall be limited by and
subject to any warranties given or granted in connection with the Lessor's
construction of the Premises and
2
<PAGE> 3
any repairs or maintenance resulting from Lessor's negligent construction of the
Premises.
9. Alterations. Except with the respect to ordinary trade
and other fixtures, Lessee shall not, without Lessor's prior written consent,
make any alterations, additions or improvements in or to the Premises or paint
or affix any sign or other object to the exterior of the Premises. All
alterations, remodeling and improvements shall be made in compliance with
applicable Laws, and at Lessee's sole cost and expense. Further, all such
alterations, additions or improvements which cannot be removed without
unreasonable damage to the Premises, shall become Lessor's property and part of
the Premises when made. In no event shall Lessee re-key or change any exterior
or interior door locks in or about the Premises without Lessor's prior written
consent.
10. Legal Requirements. Lessee shall, at Lessee's sole cost
and expense, comply promptly with all Laws affecting the Premises, if compliance
is made necessary in whole or in part by reason of Lessee's use or occupancy of
the Premises or by reason of Lessee's failure to comply fully with Lessee's
obligations under Paragraph 8 of this Lease. Lessor shall comply promptly with
those Laws affecting the Premises if compliance is not made necessary in whole
or in part reason of Lessee's use or occupancy.
11. Hazardous Materials.
(a) Neither Lessee nor Lessor or their respective
agents, employees or contractors shall cause or permit hazardous materials to be
brought upon, kept, or used in, on, or about the Premises, except as permitted
under and in full compliance with all environmental laws. If Lessee or Lessor
obtains knowledge of the actual or suspected release of a hazardous material on
or about the Premises, then said party shall promptly notify the other, and
immediately begin investigation and remediation of such release as required by
all environmental laws. Lessor represents and warrants that as of the date
hereof, or the Commencement Date, the Premises are and shall be free of
contaminants, oils, petroleum products, PCB's and other hazardous materials or
waste as described by applicable federal, state and local laws and regulations.
(b) If Lessee or Lessor breaches any obligation or
warranty set forth in Paragraph 11 (a) above, or if a release of a hazardous
material is caused or permitted by either party or such party's agents,
employees or contractors, and such release results in contamination of the
Premises and/or the surrounding area, then such breaching party, or the party
causing such release, shall indemnify and defend the other party, (and the other
party's employees, agents and representatives) against, and protect and hold
such other party (and such other party's employees, agents and representatives)
harmless from any and all claims, actions, suits, proceedings, judgments,
losses, costs, damages, liabilities (including, without limitation, sums paid in
settlement of claims), fines penalties, or expenses (including, without
limitation, reasonable attorney's fees and consultants' fees, investigation and
laboratory fees, and court costs and litigation expenses) that arise during or
after the term of this Lease as a result of such breach or contamination.
12. Liens. Lessee shall not create or permit to be created
any lien, encumbrance or charge against the Premises or any part of the
Premises. If any such lien, encumbrance or charge is filed against any part of
the Premises, Lessee shall cause the same to be discharged by payment,
satisfaction or posting of bond within thirty (30) days after the date filed. If
Lessee fails to cause any such lien, encumbrance or charge to be discharged
within the permitted time, Lessor may cause it to be discharged and may make any
payment which Lessor in its sole judgment considers necessary in order to do so.
If Lessor makes any such payment, all amounts paid by Lessor shall bear interest
at the rate of eighteen percent (18%) per annum from the date of payment by
Lessor and shall be payable by Lessee to Lessor upon demand.
13. Damages and Destruction. If the Premises is damaged or
destroyed by fire, smoke, tornado, ice, wind, lightening, flood, water,
explosion, riot, or other casualty, Lessee shall notify Lessor immediately and
the following provisions shall determine the effect of the damage or destruction
on this Lease.
(a) If the Premises is completely destroyed, the term of
this Lease shall expire on the date of destruction, with the same effect as if
the date of destruction were stated as the time for termination of the Lease
term, and Lessor and Lessee shall account for Basic Rent, Additional
3
<PAGE> 4
Rent and other amounts payable by Lessee as of that date.
(b) If any part, but less than all, of the Premises is
damaged or destroyed, Lessor shall, within sixty (60) days after such damage or
destruction, at Lessor's sole election, either agree to restore or rebuild the
premises or terminate this Lease by giving Lessee written notice of termination.
If Lessor agrees to restore or rebuild the Premises or terminate this Lease by
giving Lessee written notice of termination. If Lessor agrees to restore or
rebuild, Lessor shall restore or rebuild the damaged or destroyed part to a
condition at least as good as the condition which existed immediately prior to
the damage or destruction. Lessor shall complete the restoration or rebuilding
within on hundred eighty (180) days after the date of said damage or
destruction, and the Basic Rent shall be abated in the same proportion as usable
space in the Premises has been rendered unusable by reason of such damage or
destruction. The abatement of Basic Rent shall be effective form the date of the
damage or destruction until completion of the restoration or rebuilding by
Lessor, at which time the Basic Rent shall automatically be reinstated at the
amount specified in this Lease. If Lessor terminates this Lease, the term of
this Lease shall expire on the date ten (10) days after the date of written
notice of termination to Lessee, with the same effect as if such date were
stated as a time for termination of the Lease term, and Lessor and Lessee shall
account for Basic Rent, Additional Rent, and other amounts payable by Lessee as
of that date, with the payments from and after the date of the damage or
destruction to be abated as provided above.
(c) Notwithstanding anything above to the contrary, the
time within which Lessor shall complete any restoration or rebuilding shall be
extended one day for each day restoration or rebuilding is delayed by strikes,
lockouts, embargoes, acts of God, governmental restrictions or directives,
shortages in power or fuel or causes beyond the reasonable control of Lessor.
14. Condemnation. If the entire Premises are condemned, the
term of this Lease shall terminate on the date when possession of the Premises
is taken by the condemning authority. If any part of the Premises is condemned
so that the Lessee cannot use the remainder of the Premises for substantially
the same purpose(s) as immediately prior to condemnation, Lessee may terminate
this Lease on the date when possession is taken by the condemning authority, by
giving Lessor notice of intent to terminate within sixty (60) days after Lessor
gives Lessee notice of the condemnation. In the event of any other condemnation,
this Lease shall not terminate. Any termination under this paragraph shall have
the same effect as termination of the term of this Lease, as if the date on
which possession of the Premises is taken by the condemning authority were
stated as the time for termination for the Lease term, and Lessor and Lessee
shall account for Basic Rent, Additional Rent and other amounts payable by
Lessee as of that date. If any part of the Premises is condemned and this Lease
is not terminated as specifically provided in this paragraph, the Basic Rent
shall be abated in the same proportion as usable space in the Premises has been
rendered unusable by reason of such condemnation. The abatement of Basic Rent
shall be effective from the date when the condemning authority takes possession
of the part of the Premises condemned through the remainder of the term of this
Lease. No termination of this Lease and no abatement in Basic Rent shall affect
Lessor's right to compensation for any condemnation. Lessor and Lessee shall be
entitled to their full awards or proceeds payable with respect to the Premises
by reason of any condemnation, and neither Lessor nor Lessee shall have any
claim to any award or proceeds payable to the other. For purposes of this
paragraph, words and phrases referring to condemning or condemnation shall refer
to statutory condemnation, exercise of the private or public power of eminent
domain, proceedings in the nature of condemnation, and any sale or transfer made
in lieu of or under threat of private or public power of eminent domain and
shall include any such condemnation for permanent or for temporary use of or
interference with any part of all of the Premises.
15. Indemnity. During the term of this Lease, Lessee shall
pay, and shall protect, indemnify and save harmless Lessor from and against, all
liabilities, damages, costs expenses (including all attorney's fees and expenses
of Lessor), causes of action, suits, claims, demands and judgments of any nature
whatever arising from: (i) injury to or the death of persons or damage to
property (x) on the Premises or upon adjoining sidewalks, streets or ways, or
(y) in any manner arising out of or connected with Lessee's use, non-use, or
occupancy of the Premises, or (z) resulting from the condition of the Premises
or of adjoining sidewalks, streets or ways,
4
<PAGE> 5
(ii) violation of any agreement, representation, warranty, provision, term or
condition of this Lease by Lessee; and (iii) violation of any law by Lessee
affecting the Premises or the occupancy or use thereof. Notwithstanding any
provision here to the contrary, Lessee shall have no liability or obligation to
Lessor under this paragraph 15 where such causes of action, suits, claims,
demands and judgments arise out of or result from the negligence or wilful acts
of Lessor or Lessor's representative, agent or employees.
16. Insurance.
(a) Lessee shall procure; and maintain in full force and
effect at its expense at all times during the term of this Lease, with
insurers approved by Lessor (1) comprehensive general liability insurance
applicable to the Premises with limits of liability of not less than $500,000
per person and $1,000,000 per occurrence for injury to persons including death
resulting therefrom, and $100,000 per occurrence for damage to the property of
others with not more than $5,000 deductible, (2) explosion insurance in respect
of any boilers and similar apparatus located on the Premises in the amount of
$200,000, (3) insurance with respect to Lessee's property on the Premises and
any alterations, remodeling or improvements made or installed by Lessee on the
Premises, in an amount equal to the full replacement value of the property
insured and which insures against the perils of fire, windstorm, riot, theft,
vandalism and malicious mischief, sprinkler leakage, and explosion, (4) such
other insurance on the Premises and improvements and in such amounts as may from
time to time be reasonably required by Lessor against other insurable hazards
which at the time are commonly insured against in the case of premises similarly
situated.
(b) All insurance required to be maintained pursuant to
this paragraph shall (1) name Lessor as an additional insured, (2) provide that
the policy cannot be cancelled as to Lessor except after the insurer gives
Lessor fifteen (1 S)days written notice of cancellation, (3) provide that the
policy cannot lapse if it is not renewed for any reason except after the insurer
gives Lessor fifteen (15) days written notice of non-renewal, (4) provide that
no material change in coverage provided by the policy shall be effective except
after the insurer gives Lessor fifteen (15) days written notice of the change,
(5) shall state that notice of any claim against Lessor shall be deemed to have
occurred only when Lessor has received actual notice and has actual knowledge of
the claim, and (6) not be subject to invalidation as to Lessor by reason of any
act or omission of Lessee.
(c) Lessee shall not obtain or maintain in force any
other insurance policy which might have the effect of reducing the loss payable
to Lessor under the coverage required under this paragraph. Immediately upon the
issuance of the policy or policies required under this paragraph, Lessee shall
deliver a duplicate original policy to Lessor, together with evidence
satisfactory to Lessor that the premiums have been paid for a period of at least
one year from the Commencement Date. Not less than fifteen (15) days prior the
expiration of a policy required under this paragraph, Lessee shall pay the
premium for renewal for a period of not less than one year and deliver to Lessor
a renewal policy or endorsement evidencing the renewal, together with evidence
satisfactory to Lessor that the renewal premium has been paid.
(d) Each such insurance policy shall contain a provision
permitting Lessee to waive all rights of recovery by way of subrogation, for
Lessee or Lessee's insurer, substantially in the following forms: "This
insurance policy shall not be invalidated, and shall remain in full force and
effect, if the insured waives in writing prior to a loss any or all right of
recovery against any party for a loss occurring it the property covered by this
policy.
17. Mortgages and Mortgagees. The following provides for the
effect of Mortgages on this Lease and for rights of Mortgagees:
(a) This Lease shall be subordinate to any and all
Mortgages now or hereafter encumbering the Premises or any part of the Premises;
provided, however, so long as Lessee shall faithfully discharge its obligations
hereunder, its tenancy shall be and remain undisturbed. The terms of this
provision shall be self-operative, and no further instrument of subordination
shall be required. Upon request of any party in interest, however, Lessee shall
execute promptly such instruments or certificates as may by reasonably required
to further evidence the intent of this subparagraph, whether the requirement is
that of Lessor or any other party in interest, including, without limitation,
any Mortgagee.
5
<PAGE> 6
(b) Notwithstanding the foregoing, if any Mortgagee
elects to have this Lease superior to its Mortgage and states its election in
its Mortgage or by separate recorded instrument, then this lease shall be
superior to such Mortgage.
(c) Within ten (10) days after receipt of written
request by Lessor, Lessee shall execute and deliver to Lessor and estoppel
certificate in recordable form, addressed to any Mortgagee, any prospective
Mortgagee, any purchaser or prospective purchaser of the Premises or any part of
the Premises, or any assignee or prospective assignee of Lessor's interest under
this Lease, in which Lessee shall certify: (i) that this Lease has not been
modified and is in full force and effect, or if there have been modifications,
that this Lease is in full force and effect as modified and that the only
modifications are those specifically described in Lessee's certificate, (ii)
that Lessee has no defense, claims, counterclaims or rights of set-off against
the enforcement of this Lease, or, if Lessee claims any, that they are all
specifically described, as claimed by Lessee, in Lessee's certificate; and (iii)
the respective dates to which Basic Rent, Additional Rent and all other amounts
due under this Lease have been paid. Lessee's certificate shall also include
such other information as may be reasonably required by Lessor.
(d) Notwithstanding that this Lease is expressly subject
and subordinate to any Mortgages, and Mortgagee may sell the Premises in the
manner provided in the Mortgage, by foreclosure or sale under power. In the
event of any foreclosure or sale under power, Lessee shall attorn to the
purchaser at foreclosure or sale under power, and Lessee shall recognize such
person as the Lessor under this Lease, and the foreclosure or sale under power
shall not by operation of law result in the cancellation or the termination of
this Lease or of the obligations of Lessee.
18. Sale by Lessor. Lessor's right to sell, convey,
transfer, assign or otherwise dispose of Lessor's interest in and to the
Premises shall be unrestricted, and in the event of any such sale, conveyance,
transfer, assignment or other disposition by Lessor, all obligations under this
Lease of the party selling, conveying, transferring, assigning or otherwise
deposing, which arise subsequent to such sale, conveyance, transfer, assignment
or other disposition, shall cease and terminate, and Lessee shall look only and
solely to the party to whom or which the Premises are sold, conveyed,
transferred, assigned or otherwise disposed of for performance of all Lessor's
obligations under this Lease.
19. Assignment, Subletting by Lessee. Lessee shall not
transfer or assign this Lease, or any interest of Lessee under this Lease,
without the prior written consent of Lessor which will not be unreasonably
withheld. Lessee shall not sublet the Premises or any part of the Premises, nor
permit any party other than the Lessee to use or occupy any part of the
Premises, without the prior written consent of the Lessor. Lessor may in its
sole discretions withhold or refuse to give its consent to any proposed
transfer, assignment or subletting and to any proposed use or occupancy by any
party other than Lessee. Lessor's consent to one assignment, transfer or
sublease, or to any use or occupancy by a party other than Lessee, shall not
destroy or waive this provision, and each later assignment, transfer and
sublease, and each later use or occupancy of the Premises by a party other than
Lessee, shall likewise be made only with the prior written consent of Lessor.
Any subtenants, transferees or assignees shall automatically, upon acceptance of
such subtenancy, transfer or assignment, become and thereafter be directly
liable to Lessor for all obligations of Lessee under this Lease (including but
not limited to Basic Rent and all Additional Rent) without relieving Lessee (or
any guarantor of Lessee's obligations) of liability to Lessor under this Lease.
Notwithstanding the proceeding paragraph, Lessee shall be entitled to assign,
convey and transfer its rights, obligations and interest in and to this Lease
and the Premises to an affiliate or Successor of Lessee without obtaining
Lessor's consent thereto.
20. Removal of Personalty . Unless otherwise agreed to by
Lessor and Lessee, at or prior to the termination of the term of this Lease,
Lessee may, if no event of default then exists, remove all personal property
which Lessee has installed or otherwise located on the Premises and which is not
attached to the Premises, provided that the Lessee promptly restores the
Premises to their condition immediately preceding the time the property was
installed or otherwise located on the Premises. In the event the Lessee does not
remove said property, it shall become the property of the Lessor, and Lessee
shall pay all reasonable costs incurred by Lessor in the removal of the same.
21. Risk of Loss of Property and Risk of Injury. Lessor
shall not at any time be liable for
6
<PAGE> 7
any loss of or damage to any property of Lessee or others in or upon the
Premises or any adjoining sidewalks, streets or ways, and Lessor shall not be
liable to anyone for personal damage or injury in or upon the Premises or any
adjoining sidewalks, streets or ways, except for any such loss or damage caused
by the willful or negligent act of Lessor, or Lessor's representatives, agents
or employees.
22. Surrender. Upon termination of this Lease, Lessee shall
surrender to Lessor the Premises, broom clean and in a condition at least as
good as the condition the Premises were in on the Commencement Date, excepting
only ordinary wear and tear. Lessee shall also deliver to Lessor, immediately,
all keys to the Premises.
23. Tenancy at Sufferance. If Lessee remains in possession
of the Premises after termination of the term of this Lease, without any
distinct written agreement by Lessor, Lessee shall be and become a tenant at
sufferance, and there shall be no renewal or extension of this Lease by
operation of law.
24. Right of Entry. Lessee shall permit Lessor and Lessor's
representatives, agents and employee to enter the Premises at all times during
Lessee's business hours, and at other reasonable times, for the purpose of
inspecting the Premises, showing the Premises to prospective purchasers or
tenants, making any repairs or replacements or performing any maintenance
required (or permitted to be made or performed) by Lessor and performing any
work on the Premises that Lessor may consider necessary to prevent or cure
deterioration, waste or unsafe conditions. Lessor shall also have the right to
place on Premises signs suitable to Lessor advertising the Premises or any part
of the Premises for sale or for lease. Nothing in this paragraph shall imply or
impose any duty or obligation upon Lessor to enter the Premises at any time for
any purpose, or to inspect the Premises at any time, or to do, or pay for, any
work which Lessee is required to perform under any provision of this Lease, and
Lessor has no such duty or obligation.
25. Lessor's Right to Act for Lessee. If Lessee fails to pay
any Additional Rent or to make any other payment or take any other action when
and as required under this Lease, Lessor may, without demand upon Lessee and
without waiving or releasing Lessee from any obligation contained in this Lease,
pay any such Additional Rent, make any such other payment or take any such other
action required of Lessee. All amounts paid by Lessor pursuant to this
paragraph, and all costs and expenses incurred by Lessor in exercising its
rights under this paragraph, shall bear interest at the rate of eighteen percent
(18%) per annum from the date of payment by Lessor and shall be payable by
Lessee to Lessor upon demand.
26. Default. (a) The following events shall constitute
events of default by Lessee under this Lease: (i) Lessee shall fail to pay
within ten (10) days after receipt of written notice from Lessor of Lessee's
failure to pay when due any Basic Rent, Additional Rent or other payment to be
made by Lessee; (ii) Lessee shall fail to comply with any agreement,
representation, warranty, term or condition of this Lease (other than the
payment of Basic Rent, Additional Rent or any other payment to be made by
Lessee), and shall not cure such failure within thirty (30) days after Lessor
gives Lessee written notice of the failure; (iii) Lessee or any guarantor of
this Lease shall become insolvent or shall make a transfer in fraud of creditors
or shall make an assignment for the benefit of credits, or (iv) Lessee or any
guarantor of this Lease shall file a petition under any section or chapter of
the Federal Bankruptcy Act, as amended, or under any similar Law or any statute
of the United States or any state, or there shall be filed against or on behalf
of Lessee or any guarantor to this Lease a petition in bankruptcy or insolvency
or a similar proceeding, or Lessee or any guarantor shall be adjudicated
bankrupt or insolvent in proceedings filed against or on behalf of Lessee or any
such guarantor of this Lease.
(b) Upon the occurrence of any event of default, Lessor
may pursue any one or more of the following remedies, separately or concurrently
or in any combination, without any notice (except as specifically provided
below) or demand whatsoever and without prejudice to any other remedy which
Lessor may have (i) Lessor may terminate this Lease by giving Lessee notice of
termination, in which event Lessee shall immediately surrender the Premises to
Lessor and this Lease shall be terminated at the time designated by Lessor in
its notice of termination to Lessee, and, in such event, Lessor may enter upon
and take possession of the Premises and expel or remove Lessee and any other
person who may be occupying the Premises, by force if necessary, without being
liable for prosecution or any claim of damages; (ii) with or without terminating
this
7
<PAGE> 8
Lease, Lessor may take possession of the Premises and Lessor may
release the Premises, on such terms as Lessor may deem satisfactory, and receive
the rent for any such re-leasing, in which event Lessee shall pay to Lessor on
demand any deficiency that may arise by reason of such releasing; or (iii)
Lessor may do whatever Lessee is obligated to do under the terms of this Lease,
in which event Lessee shall pay Lessor on demand for any expenses, including
without limitation attorney's fees, which Lessor may incur in thus effecting
compliance with Lessee's obligations under this Lease.
(c) Lessor's pursuit of any one or more of the remedies
stated in subparagraph (b) above shall not preclude pursuit of any other remedy
or remedies provided in this Lease or any other remedy or remedies provided by
law or in equity, separately or concurrently or in any combination. Lessor's
pursuit of any one or more of the remedies provided in this Lease shall not
constitute: (i) an election of remedies excluding the election of any other
remedy or other remedies; or (ii) a forfeiture or waiver of any Basic Rent,
Additional Rent or other amounts payable under this Lease by Lessee or of any
damages or other sums accruing to Lessor by reason of Lessee's violation of any
of the agreements, representation, warranties, provisions, terms and conditions
of this Lease. No action taken by or on behalf of Lessor shall be construed to
be an acceptance of a surrender of this Lease. Lessor's forbearance is pursuing
or exercising one or more of its remedies shall not be deemed or construed to
constitute a waiver of any event of default or of any remedy. No waiver by
Lessor of any right or remedy on one occasion shall be construed as a waiver of
that right or remedy on any subsequent occasion or as a waiver of any other
right or remedy then or thereafter existing. No failure of Lessor to pursue or
exercise any of Lessor's powers, rights or remedies or to insist upon strict
compliance by Lessee with any obligation of Lessee, and no custom or practice at
variance with the terms of this Lease, shall constitute a waiver of Lessor's
right to demand exact compliance with the terms of this Lease. Notwithstanding
anything in this Lease to the contrary, no termination of this Lease prior to
the normal termination by lapse of time or otherwise shall affect Lessor's right
to collect Basic Rent and Additional Rent for the period prior to termination.
27. Late Charge. Notwithstanding anything to the contrary
contained herein, should Lessee fail to pay any installment of Basic Rent or
Additional Rent within ten (10) days of the due date thereof, Lessee shall pay
to Lessor as Additional Rent, a late charge equal to the greater of five (5%)
percent of such installment, or Twenty-Five ($25.00) Dollars.
28. Attorney's Fees. If any Basic Rent, Additional Rent or
other amount owed by Lessee under this Lease is collected by or through an
attorney at law, Lessee shall pay reasonable attorney's fees incurred in
connection with the collection of rent.
29. Time of Essence. Time is of the essence of this Lease.
Anywhere a day certain is stated for payment or for performance of any
obligation, the day certain so stated enters into and becomes a part of the
consideration of this Lease.
30. Notices. Any notice, demand, request, consent, approval
or communication under this Lease shall be in writing and shall be deemed duly
given to or made upon a party when either: (i) delivered personally, or (ii)
deposited, postage prepaid, in the United States Mail, certified or registered
mail with a return receipt requested, addressed (as the case may be) to such
party at the following address or at such other address as such party may
designate by notice to the other parties hereto:
If to Lessor: 2145 Springdale Drive
Columbus, Georgia 31906
ATTN: Mr. D. L. Jordan
If to Lessee: AMERICAN CABLE COMPANY, INC.
CYBERNET HOLDING, INC.
P. O. Box 510
West Point, Georgia 31833
ATTN: Mr. Clarence J. Prestwood
President & CEO
Lessee designates and appoints, as its agent to receive notice of all
dispossessory or distraint
8
<PAGE> 9
proceedings and all notices required under this Lease, the person in charge of
the Premises at the time the notice is given, and, if no person is in charge of
the Premises at that time, such service or notice may be made by attaching the
same, in lieu of mailing, on any entrance to the Premises.
31. Entire Agreement. This Lease contains the entire
agreement of the parties hereto and no representations, warranties, inducements,
promises or agreements, oral or otherwise, between the parties not embodied in
this Lease shall be of any force or effect.
32. Severability. If any clause or provision of this Lease
is illegal, invalid or unenforceable under applicable present or future Laws
effective during the term of this Lease, the remainder of this Lease shall not
be affected.
33. Headings. The use of headings, captions and numbers in
this Lease is solely for the convenience of identifying and indexing the various
paragraphs and shall in no event be considered otherwise in construing or
interpreting any provision in this Lease.
34. Special Stipulations. The provisions set forth on
Exhibit "A" attached hereto and made a part hereof, if any, are part of this
Lease, and in the event of any conflict between the provisions of this Lease and
the provisions of Exhibit "A", the provisions of Exhibit "A" shall control.
However, if this Lease conflicts with any provisions for the attached "Proposal,
Build to Suit Lease," then this Lease shall control.
35. Contingencies. The contingencies and conditions set
forth on Exhibit "D" are incorporated herein by this reference . The fulfillment
of said contingencies and conditions, in Lessee's sole discretion, shall be a
condition to Lessee's obligation to perform under this Lease. If any of said
contingencies and conditions are not satisfied or fulfilled to Lessee's
satisfaction, then Lessee, at Lessee's option, shall have no obligation under
this Lease and shall be entitled to restitution of any rent or other
consideration paid by Lessee to Lessor.
LESSOR:
/s/ D.L. Jordan (L.S.)
-------------------------------------
D. L. Jordan
LESSEE:
(Corporation)
American Cable Company, Inc.
---------------------------------------
By: /s/ Clarence J. Prestwood
Clarence J. Prestwood,
President & C.E.O.
ATTEST: Only one (1) Signature Required
--------------------------------
(Corporate Seal)
9
<PAGE> 10
EXHIBIT "A"
SPECIAL STIPULATIONS
1. The Build to Suit Proposal dated December 6, 1995 between D. L.
Jordan and Cybernet, Inc. d/b/a American Cable Company is attached
and made a part of this lease.
2 RENT:
<TABLE>
<CAPTION>
INITIAL SQUARE FOOT ANNUAL MONTHLY
- ------- ----------- ------ -------
<S> <C> <C> <C>
YEAR 1-3 $7.20 $57,600.00 $4,800.00
YEAR 4-6 $7.80 $62,400.00 $5,200.00
YEAR 7-10 $8.52 $68,186.00 $5,682.17
OPTION PERIOD ONE (1)
- ---------------------
YEARS 11-15 $9.59 $76,744.00 $6,395.33
OPTION PERIOD TWO (2)
- ---------------------
YEARS 16-20 $11.12 $88,967.00 $7,413.92
</TABLE>
OPTION PERIOD THREE (3)
- -----------------------
YEARS 21 -25 Basic Rent to be paid during this period to be negotiated
in good faith between Tenant and Landlord; provided,
however, said Basic Rent shall not increase more than 10%
over the Basic Rent paid in Option Period Two (2).
3. EXTENSIONS: So long as Tenant shall not be in default under this
Lease, Tenant shall have the option to extend the term of this Lease
beyond the initial Lease Term for Three (3) periods of Five (5) years
each. Tenant shall be deemed to have exercised each such option, and
this Lease shall automatically renew for each additional term unless
Lessee gives Lessor written notice not less than 90 days prior to the
expiration of the then existing and applicable term that Lessee
desires not to exercise said option to extend, in which event this
Lease shall terminate and be of no force and effect upon the
expiration of the then applicable term. If this lease is renewed or
extended, then such extension period shall begin upon the expiration
of the immediately preceding term of this Lease. The terms and
conditions of this Lease shall apply during any such extension term
and the Basic Rent payable during such extension term shall be as set
forth on Exhibit "A", #2.
4. PROPERTY TAX: All property taxes lawfully assessed against or levied
upon the Property (including improvements, fixtures and personality
thereon) during the Lease term shall be paid by Lessee when due and
before becoming delinquent, except that Lessee may, at its option,
contest any such assessment or levy which Lessee believes to have
been unlawfully or unfairly made; provided, however, that Lessee
shall indemnify and hold harmless Lessor from any loss or damage
resulting from any such contest. Lessor agrees to cooperate with
Lessee in any such contest. In any instance in which the term of this
Lease includes only a portion of the tax year, Lessor shall be liable
for that part of the property tax attributable to the portion of such
tax year which is not included in the lease term. Lessor agrees to
cause all property tax statements and notices to be sent during the
Lease term directly to Lessee by taxing authorities. Lessee agrees,
upon request of Lessor, to furnish periodic proof of the payment of
such taxes.
<PAGE> 11
5. PROPERTY INSURANCE: At all times during the Lease term, Lessee shall
maintain in force and effect, at its own cost and expense, a policy
or policies providing sufficient fire and extended coverage insurance
on the improvements to be constructed and the equipment to be
installed on the Property. Such policy or policies of insurance shall
name both Lessor and Lessee as the insured and shall provide that all
insurance proceeds are to be paid jointly to Lessor and Lessee;
provided, however, upon Lessor's request Lessee shall add Lessor's
mortgagee as an additional insured, subject to standard loss payable
clause. The limits of such insurance coverage shall be not less than
actual replacement cost of the improvements. Notwithstanding any
provision contained herein to the contrary, any proceeds of insurance
maintained by Lessee for damage to the contents of the building shall
be and remain the sole property of the Lessee.
6. ADDITIONAL MAINTENANCE: Lessee agrees to perform regular maintenance
and repairs for grassing, shrubbery and the irrigation sprinkler
system which may be installed by Lessor as part of the facilities to
be constructed on the Premises. These items are in addition to items
set forth in Paragraph #8 of this Lease.
7. AGENCY DISCLOSURE: The Broker, Waddell Realty Co., has acted as agent
for the Owner/Landlord in this transaction. Broker has not acted as
agent for the Tenant in this transaction. The Broker is to be paid a
commission by Owner/Landlord in this transaction. (See EXHIBIT "C",
TENANT AGENCY,) which is made a part hereof.
/s/ D.L. Jordan
----------------------------------
D. L. Jordan
American Cable Company, Inc.
----------------------------------
By: /s/ Clarence J. Prestwood
-------------------------------
Title: President & CEO
-----------------------
<PAGE> 12
[LETTERHEAD OF WADDELL REALTY CO.]
PROPOSAL
BUILD TO SUIT LEASE
AMERICAN CABLE COMPANY
TENANT: AMERICAN CABLE COMPANY, P.O. BOX 8289
COLUMBUS, GEORGIA 31908
PROPOSED USE: Administrative/Operations Office
LOCATION: Boxwood Place, Columbus, Georgia, 1.40 +/- acres
(See preliminary SITE PLAN, Exhibit "A")
BUILDING: 8,000 square feet (80' x 100' x 12') Pre-engineered steel
metal building with split-faced block exterior, and complete
with designated office/administrative area (4,000 sq. ft.),
warehouse area (4,000 sq. ft.), and related plumbing, HVAC and
electrical fixturing. Construction does not include purchase
or installation of specialty fixturing* necessary for
satellite/distribution equipment, (.i.e. computer flooring,
emergency generator, tower, enhanced HVAC etc.).
* Landlord will consider, on an item by item basis amortizing
the cost of specialty fixturing in the rental payment.
SITE: Complete grading, compacting and preparation to accommodate
structure outlined above. Parking for employees and customers
to be paved with appropriate base and asphalt paving (Building
and one (1.0) acre). Rear storage/loading/ truck parking areas
will be gravel on compacted base (0.40 acres). Complete site
area totals 1.40 acres
INITIAL TERM: Ten (10) years
OPTION TERM: Three (3) periods or Five (5) years each.
<PAGE> 13
PAGE 2
PROPOSAL: American Cable Company
RENT:
<TABLE>
<CAPTION>
INITIAL SQUARE FOOT ANNUAL MONTHLY
------- ----------- ------ -------
<S> <C> <C> <C>
YEAR 1-3 7.20 57,600.00 4,800.00
YEAR 4-6 7.80 62,400.00 5,200.00
YEAR 7-10 8.52 68,186.00 5,682.17
OPTION PERIOD ONE (1)
- ---------------------
YEARS 11-15 9.59 76,744.00 6,395.33
OPTION PERIOD TWO (2)
- ---------------------
YEARS 16-20 11.12 88,967.00 7,413.92
</TABLE>
OPTION PERIOD THREE (3)
- -----------------------
YEARS 21-25 Rent to be paid during this period to be negotiated in
good faith between Tenant and Landlord.
PROPERTY TAX,
INSURANCE AND
MAINTENANCE: Responsibility of the Tenant (roof and structural will remain
responsibility of the Landlord).
RENTAL COMMENCEMENT: Thirty (30) days after substantial completion.
INSPECTION: The Landlord agrees to allow Tenant the right and privilege of going
upon the property to inspect, examine, survey and perform examinations Tenant
deems necessary in order to satisfy inspection requirements. Should the above
inspections be unacceptable in its sole and absolute discretion, Tenant may give
written cancellation of this agreement on or before thirty (30) days after the
acceptance date of this agreement. After said 30 days all inspections will
conclusively deemed to have been waived, fulfilled and/or satisfied. Tenant
agrees to reimburse to Landlord the cost of architectural and/or engineering
fees which have been authorized by Tenant in the event this agreement is
cancelled.
GENERAL:
1. Unless otherwise stated, the Broker has acted as agent for the
Owner/Landlord in this transaction and is to be paid a commission by
Owner/Landlord: Broker has not acted as agent for Lessee in this
transaction.
<PAGE> 14
PAGE 3
PROPOSAL: American Cable Company
The general terms and conditions set forth above are presented for review and
approval. Upon such approval, detailed plans and specifications will be
developed and a Lease will be prepared for execution by all parties involved.
This Build to Suit Lease Proposal shall be open for acceptance by Tenant until
noon, December 20, 1995.
Presented by:
/s/ Paul C. Mahaffey
- --------------------------------
Paul C. Mahaffey Date
Associate Broker
Waddell Realty Co.
Agreed as to General Terms Agreed as to General Terms
and Conditions on this 6 and Conditions on this 6
day of Dec., 1995. day of December, 1995.
/s/ D.L. Jordan BY: /s/ Clarence J. Prestwood
- -------------------------------- -------------------------------
D.L. Jordan, Owner CYBERNET, Inc.
2145 Springdale Drive d/b/a American Cable Company
Columbus, Georgia
Its: President
----------------------------------
<PAGE> 15
EXHIBIT "B"
[A Map Of The Leased Premises Appears Here]
<PAGE> 16
Waddell Realty Co.
LANDLORD/TENANT AGENCY
EXHIBIT "---C---"
Only the part of this Exhibit that is selected is part of the Offer to lease or
to lease/purchase the real property located at:
1.4 +/- acres, N.W. corner, Boxwood Pl. @ Boxwood Bl., Columbus Georgia,
- -----------------------------------------------------------------------------
31906. with an Offer Date of December 6, 1995 .
- ----- ---------- ----------
[The purpose of this exhibit is to supplement the "Agency Disclosure"
paragraph of this Agreement. (Select Tenant Agency or Dual Agency or
Owner/Landlord Agency. The others are not a part of this Agreement.)]
Acknowledgment and Disclosures
Landlord and Tenant each have an independent duly to protect their own interests
and should read this Agreement carefully to insure that it accurately acts forth
the terms which they want included in this transaction. Landlord and Tenant
understand that they may seek independent legal counsel in order to assist them
with any matter relating to this Agreement or to this transaction which is the
subject matter of this Agreement. Landlord and Tenant agree to indemnify and
hold Broker harmless against all claims, damages, losses, expenses or
liabilities arising from Broker's role, except those arising from Broker's
negligence and intentional wrongful acts. Tenant acknowledges that, prior to
entering into a Brokerage Engagement with Broker, Broker disclosed to Tenant (1)
Broker's Office Brokerage Policy; (2) any other brokerage relationship which
would conflict with the Tenant's interest; and (3) Broker's compensation and
sharing arrangements with other cooperating brokers.
Broker's Compensation
Broker's compensation, including the sharing of commission (if applicable) with
other Brokers who may represent other parties to this transaction, are as stated
in the "Brokerage" paragraph of this Agreement. Broker shall not receive any
undisclosed real estate brokerage commission in this transaction. Payment of
said commission to Broker shall not create any agency or subagency relationship
between Tenant's Broker and either Landlord or Landlord's Broker.
* TENANT AGENCY: Select this section only when submitting an offer from your
Tenant/Client or another company's listing.
Tenant Agency Rules
Tenant's Broker has acted solely for Tenant in this transaction and has not
acted for landlord or Landlord's Broker. The parties to this Agreement further
agree and acknowledge that if the Property is or was listed with a multiple
listing service, such listing shall not create any agency relationship between
Tenant's Broker and either Landlord or Landlord's Broker. Tenant's Broker hereby
expressly rejects any implied or express offer by Landlord or Landlord's Broker
of any agency or subagency relationship. Tenant's Broker shall treat all
prospective sellers honestly and timely disclose to prospective Landlord,
Broker's knowledge of Tenant's ability to consummate the transaction
contemplated. Tenant's Broker may provide assistance to the Landlord by
performing ministerial acts such as preparing offers and conveying them to the
Landlord, locating lenders, inspectors, attorneys, insurance agents, surveyors,
schools, shopping facilities, places of worship and all such other like or
similar services.
* DUAL AGENCY: Select this section only when submitting an offer from your
Tenant/Client or any of your company's listings.
A. Acknowledgment And Disclosures: Landlord and Tenant acknowledge that they are
aware of the implications and consequences of Broker's dual agency role; that
they have determine that the benefits of entering into this transaction with
Broker acting in a dual agency role outweigh any detriments; and that they have
received: (1) a description of this transaction in which Broker is acting as
dual agent; (2) a statement that Broker represents two clients whose interests
could be different or even adverse; (3) a statement that a dual agent may not
disclose to any client in formation made confidential by request, except
information required to be disclosed; (4) a statement that the broker and/or
affiliated licensees have no material relationship with either client or, if
such relationship exists, a disclosure of the nature of such relationship. A
material relationship means one actually known of a personal, familial or
business nature between the broker and affiliated licenses and a client which
would impair their ability to exercise fair judgment relative to another client;
and (5) a statement that the client does not have to consent to the dual agency
and the written consent of the client has been given voluntarily and the
brokerage engagement has been read and understood.
B. Material Relationship: Neither the Broker nor Affiliated Licenses has any
known material relationship with either client other than that described herein.
- --------------------------------------------------------------------------------
At such time as a specific material relationship is disclosed, either party may
continue its consent or withdraw it as it deems appropriate.
C. Broker's and Licensees' Roles: Tenant and Owner/Landlord acknowledge and
agree that the Licensee(s) participating in this transaction have disclosed that
Licensee is affiliated with Broker and as a result thereof, Broker is deemed to
have acted for Tenant and Owner/Landlord in this transaction and is to be paid a
commission by Owner/Landlord. Tenant and Owner/Landlord acknowledge that, prior
to the time this Agreement was entered into, Broker acted exclusively for
Owner/Landlord and also acted exclusively for Tenant and in those separate roles
may have obtained information which, if disclosed, could harm the bargaining
position of the party providing such information to Broker. Tenant and
Owner/Landlord agree that Broker shall not be liable to either party for
refusing or failing to disclose information or performing other duties, which in
the sole discretion of Broker, could harm one party's bargaining position but
could benefit the other party. Nothing contained herein shall prevent Broker, or
Affiliated Licensee(s), from disclosing to Tenant any known latent defects in
the Property. Broker agrees not to disclose (1) to Tenant information about what
price or terms Owner/Landlord will accept other than the list price or terms, or
(2) to Owner/Landlord information about what price or terms Tenant will pay
other than any written offered price and terms.
Complete next paragraph only in the event different Licensees affiliated with
Broker are representing Tenant and Owner/Landlord separately.
D. Affiliated Licensee Assignment: In this transaction, Broker has assigned
different Licensees as follows:
The Broker has assigned _____________________________________ (Leasing Licensee)
to work with Tenant and _____________________________________________ (Listing
Licensee) to work with Owner/Landlord, and for purposes of this agreement each
shall be deemed to act for and to represent exclusively the party to whom each
has been assigned.
OWNER/LANDLORD AGENCY/SUBAGENCY: Select this section only when (1) Leasing
Broker represents Landlord or (2) when Landlord has offered subagency and
Leasing Broker accepts such subagency offer and Leasing Broker has no brokerage
engagement or material relationship with the Tenant.
Landlord Agency/Subagency Roles
The parties to this Agreement agree and acknowledge that either Leasing Broker's
company has a brokerage engagement with the Landlord and as such represents the
Owner/Landlord, or Leasing Broker is a subagent of the Landlord. Leasing Broker
shall treat all prospective tenants honestly and timely disclose to tenants all
material adverse facts pertaining to physical condition of the properly actually
known by Leasing Broker which could not be discovered by a reasonably diligent
inspection by Tenant. Leasing Broker may provide assistance to the Tenant by
performing ministerial acts such as preparing offers and conveying them to the
Landlord; locating lenders, inspectors, attorneys, insurance agents, surveyors,
schools, shopping facilities, places of worship and all such other like or
similar services.
<TABLE>
<S> <C>
Leasing Broker's Initials: Tenant's Initials: /s/ CJP
------------------------------------ -----------------------------
(or Broker's Affiliated Licensee)
Owner/Landlord's Broker's Initials: /s/ [ILLEGIBLE SIGNATURE] Owner/Landlord's Initials: /s/ DLJ
-------------------------- --------------------
(or Broker's Affiliated Licensee)
Copyright (C) 1992, 993, 1994, 1995 by Waddell Realty Co. F5 Tenant Agency Exhibit,
Georgia Association of REALTORS(R), Inc. rev. a 9/17/91
- ---------------------------------------- ---------------------------------
</TABLE>
<PAGE> 17
EXHIBIT "D"
CONTINGENCIES AND CONDITIONS
(a) Lessee shall have obtained the appropriate approvals for its
intended use of the Premises from any federal, state or local regulatory
authority having jurisdiction over such use;
(b) Lessee shall have obtained a title report or commitment for
title which shows, in Lessee's opinion, no defect of title or any liens or
encumbrances which adversely affect Lessee's intended use of the Premises or
Lessee's ability to obtain leasehold financing;
(c) Lessee shall have obtained or reviewed such surveys, soil
borings and tests of the Premises which show, in the opinion of Lessee, that the
Premises is suited for lessee's intended use;
(d) Lessee shall have obtained an environmental audit of the
Premises performed by an environmental consulting firm of lessee's choice which
reveals that the Premises is not contaminated with hazardous materials, wastes
or other contaminants;
(e) Lessee shall have confirmed that the premises is properly zoned
so as to allow Lessee's intended use of the Premises;
(f) Lessor shall have obtained from South Trust Bank of Columbus,
N.A., successor by merger to First Columbus Community Bank and Trust Company, a
Non-Disturbance and Attornment Agreement which is suitable to Lessee in form and
substance. Said Non-Disturbance and Attornment Agreement shall be recorded in
the real estate records of Muscogee County, Georgia;
(g) Lessor and Lessee shall execute and record a Memorandum of Lease
which gives notice to third parties of the existence of the Lease and the
interest and rights of the Lessee in and to the Premises; and
(h) Lessor and Lessee shall have agreed to mutually acceptable plans
and specifications for the construction of a building of approximately 8,000
square feet ("Improvements") to be located on the Premises which would provide
Lessee with administrative offices and related warehousing facilities. The
Improvements shall be constructed by Lessor in strict accordance with said plans
and specifications, and Lessee, during construction and upon completion of said
Improvements shall have the right to inspect, itself or through agents, the
Improvements to determine compliance with said plans and specifications. Lessor
agrees to construct the Improvements in accordance with all applicable codes and
regulations and free from defects in materials and workmanship.
/s/ D.L. Jordan
--------------------------------
D.L. JORDAN
AMERICAN CABLE COMPANY, INC.
BY: /s/ Clarence J. Prestwood
-----------------------------
Title: President & CEO
-----------------------
<PAGE> 1
EXHIBIT 10.6
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered into this 19th day of April,
1996, by and between B.E. SATTERWHITE ("Lessor") and AMERICAN CABLE COMPANY,
INC. ("Lessee").
WHEREAS, Lessor owns certain real property located in Muscogee County,
Georgia being known as 3701 Weems Road, and being more particularly described
on Exhibit "A" attached hereto (the "Lessor's Property"); and
WHEREAS, Lessee desires to lease from Lessor and Lessor desires to lease
to Lessee a portion of Lessor's Property for the hereinafter described
purposes.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee agree as
follows:
1. Property. Subject to the following terms and conditions,
Lessor leases to Lessee the property which is described in Exhibit "B" attached
hereto (the "Property"). The Property will be leased by Lessor to Lessee
subject to all applicable zoning ordinances, recorded easements, restrictions
and covenants, laws, rules and regulations.
2. Use. The Property may be used by Lessee to construct, operate
and maintain a building, fencing and facilities to house Lessee's equipment and
other property (the "Improvements"), including without limitation, fiber optic
cable and equipment for the purpose of transmitting and receiving various types
of communication, digital, electronic and/or other signals in any and all
frequencies; and to build, construct or do any other related facilities and
activities, and for no other use (the "Intended Use"). In no event shall
Lessee use the Property in violation of any applicable law, rule or regulation.
Lessor agrees to cooperate with Lessee in obtaining, at Lessee's expense, all
licenses and permits required for Lessee's use of the Property (the
"Governmental Approvals"). Lessee represents and warrants that the Intended
Use will not adversely affect or interfere with Lessor's current use of
Lessor's Property.
3. Initial Term. The initial term of this Lease shall be five
(5) years, commencing on the date hereof ("Commencement Date") and terminating
on the fifth anniversary of the Commencement Date ("Initial Term").
4. Renewal Terms. Lessee shall have the right to extend this
Lease for four (4) additional five (5) year terms ("Renewal Terms"). Each
Renewal Term shall be on the same terms and conditions as set forth in this
Lease except that Rent shall increase as provided in Paragraph 5(c). This
Lease shall automatically be renewed for each successive Renewal Term unless
Lessee notifies Lessor of Lessee's intention not to renew the Lease at least 30
days prior to the expiration of the Initial Term or the Renewal Term which is
then in effect.
5. Consideration.
(a) Upon the Commencement Date, Lessee shall pay Lessor
the sum of Two Hundred and No/100 Dollars ($200.00) per month as rental
("Rent"). Rent shall be payable in advance to Lessor at Lessor's address as
specified in Paragraph 20 below, on the first day of each month during the
Initial Term or any Renewal Term beginning on the first day of the month
following the Commencement Date;
(b) If this Lease is terminated for any reason other than
Lessee's default, then all Rent paid in advance shall be prorated to the date
of termination and shall be refunded to Lessee;
(c) The Rent payable by Lessee during each successive
year of the Initial Term and any Renewal Term commencing on the first (1st) day
of the thirteenth (13th) month of the Initial Term, shall be adjusted at that
time and every twelve (12) months thereafter (the "Adjustment Month") for the
remainder of the Initial Term and any Renewal Term as follows: the monthly
installment of Rent for the immediately preceding twelve (12) month period
shall be increased by multiplying said amount times a fraction, the denominator
of which is the Consumer Price Index number, published by the U.S. Department
of Labor, Bureau of Labor Statistics in the Consumer Price Index for All Urban
Consumers - U.S. City Average, All Items (1982-84=100) (the "CPI"), for the
calendar month preceding the Commencement Date and the numerator of which is
the CPI number for the month preceding the Adjustment Month of each successive
12-month period for which the computation is made. If the CPI is discontinued,
then Lessor shall designate a comparable index to be used in lieu thereof for
the purposes hereof; and
(d) Lessee shall pay to Lessor on the Commencement Date a
prorated amount of the Rent for the period from the Commencement Date to the
end of the calendar month in which the Commencement Date occurs.
6. Lessor's Representations and Warranties. Lessor represents
and warrants, to the best of Lessor's knowledge, as follows:
(a) The Intended Use is not prohibited by any unrecorded
covenants, restrictions, reciprocal easements, servitudes, subdivision rules or
regulations;
(b) There are no unrecorded easements, licenses, rights
of use or other encumbrances on the Property which will interfere with or
constructively prohibit the Intended Use;
(c) The execution, delivery and full performance of this
Lease by Lessor does not constitute a violation of any contract, judgment,
decree, security deed or other restriction of any kind of which Lessor is party
of which Lessor is bound;
(d) Lessor has executed and entered into this Lease free
from fraud, undue influence, duress, coercion or any other defenses to the
execution of this Lease; and
(e) This Lease constitutes the valid binding obligation
of Lessor enforceable against Lessor in accordance with its terms.
<PAGE> 2
7. Lessee's Representations and Warranties. Lessee represents
and warrants as follows:
(a) The parties executing this Lease on behalf of the
Lessee are fully and properly authorized to execute and deliver this Lease to
the Lessee;
(b) That the execution, delivery in full performance of
the Lease by Lessee does not constitute a violation of any contract, judgement,
decree or other restriction of any kind of which Lessee is a party or of which
Lessee is bound;
(c) Lessee is executing and entering into this Lease free
from fraud, undue influence, duress, coercion or any other defenses to the
execution of this Lease;
(d) This Lease constitutes the valid binding obligation
of Lessee, enforceable against Lessee in accordance with its terms; and
(e) Lessee is duly organized, and invalidly existing in
the state of its organization and has full power and authority to enter into
this Lease, to perform Lessee's obligations hereunder and to transact business
in the State of Georgia.
8. Conditions Subsequent. In the event that the Intended Use is
actually or constructively prohibited through no fault of Lessee then this
Lease shall terminate and be of no further force or effect and Lessee shall be
entitled to a refund from Lessor of any deposits or prorated Rent paid to
Lessor Prior to the date upon which Lessee gives Lessor notice of its intent to
terminate this Lease pursuant to this Paragraph.
9. Interference. Lessor shall not use, nor shall Lessor permit
its lessees, licensees, invitees or agents to use any portion of adjacent real
property owned by Lessor in any way which interferes with the operations of
Lessee. Such interference shall be deemed a material breach of this Lease by
Lessor and Lessor shall have the responsibility to terminate said interference.
In the event any such interference does not cease or is not promptly rectified,
Lessor acknowledges that continuing interference will cause irreparable injury
to Lessee, and Lessee shall have the right, in addition to any other rights
that it may have at law or in equity, to bring action to enjoin such
interference or to terminate this Lease immediately upon notice to Lessor.
Notwithstanding any provision herein to the contrary, Lessee acknowledges that
Lessor operates a veterinary clinic on the Lessor's Property, and Lessee agrees
that any interference with Intended Use from the normal and ordinary operations
of said veterinary clinic shall not be such interference as described in this
Paragraph and Lessor shall have no liability to Lessee therefore.
10. Improvements; Utilities; Access.
(a) Lessee shall have the right, at Lessee's sole cost
and expense, to erect and maintain the Improvements on the Property. Lessee
agrees that the Improvements will be completed in accordance with all
applicable laws, rules, regulations and codes and Lessee will promptly pay for
all work, labor or services done or materials furnished in connection with the
construction and maintenance of the Improvements and the Lessee will not permit
any mechanic's, materialman's or any other type of lien or claim of lien to be
filed against the Property by reason of or related to any such work, labor,
services or materials. If any such lien or claim of lien is filed at any time
against the Property, Lessee shall indemnify and hold Lessor harmless from the
same and shall, within thirty(30) days after receipt of actual notice of the
filing thereof, cause such lien to be removed with respect to the Property. If
Lessee fails to cause said lien to be so removed within the thirty (30) day
period, in addition to any other right or remedy of Lessor, Lessor shall be
entitled , but not obligated, to discharge said lien in any manner that Lessor,
in his sole discretion, shall determine, and the cost of doing so, including
reasonable attorney's fees, will be repaid to Lessor by Lessee as additional
rent, immediately upon demand. The Improvements shall remain the exclusive
property of the Lessee, and Lessee shall, upon Lessor's request, remove the
Improvements from the Property following any termination of this Lease.
Nothing herein shall be construed to require and Landlord shall have no
obligation to erect, replace, maintain or repair any of the Improvements. Upon
the termination of this Lease, Lessee may offer to sell to Lessor any portion
of the Improvements at a mutually acceptable price.
(b) Lessor hereby grants to Lessee, during the Initial
Terms and all Renewal Terms, the right and easement to install utilities, at
Lessee's expense, improve present utilities on the Property (including but not
limited to the installation of emergency power generators), and to permanently
place utilities on (or to bring utilities across or under ) the Lessor's
Property to service the Property and the Improvements. This utility easement
shall be fifteen (15) feet in width and the north line of said easement shall
extend from the northwest corner of the Property to a point located on the
easterly margin of Effingham Way in a direction which is parallel with the
north line of the Property and south line of said easement shall extend from
the southwestern corner of the Property to a point on the easterly margin of
Effingham Way in a direction which is parallel to the southern line of the
Property. Lessor shall, upon Lessee's request, execute a separate written
easement to the utility company providing the service or Lessee in a form which
may be filed of record evidencing this right.
(c) Lessor hereby grants to the Lessee and Lessee's
successors, sublessees and assigns at all times during the Initial Term and any
Renewal Term, the nonexclusive right and easement of ingress, egress, and
access from the Property across the Lessor's Property to the open and improved
public roads which presently exist (the "Easement") which Easement shall be
adequate to service the Property and the Improvements. If no such public roads
exist or cease to exist in the future, Lessor will grant an appropriate
easement to Lessee, Lessee's successors, sublessees and assigns so that Lessee
may, at its own expense, construct a suitable private access drive to the
Property and the Improvements; provided, however, said drive shall not
interfere with Lessor's use of Lessor's Property. This Paragraph grants and is
evidence of the granting of an Easement for ingress, egress and access,
however, Lessor agrees, upon Lessee's request, that Lessor shall execute an
easement in a form which may be filed of record evidencing this right. Lessor
and Lessee shall each maintain access to the Easement in a free and open
condition so that no interference is caused to the other party by other
lessees, licensees, invitees or agents of either party which may utilize the
Easement. Notwithstanding the preceding, Lessee will use its best efforts to
access the Property from Effingham Way along or through the utility easement
described in paragraph 10(b) above, and Lessor hereby grants and authorizes
such access through said utility easement.
11. Termination. Except as otherwise provided herein, this Lease
may be terminated, without any penalty or further liability, upon written
notice as follows:
(a) By either party upon a default of any covenant or
term hereof by the other party which default is not cured within 60 days of
receipt of written notice of default (without, however, limiting any other
rights available to the parties pursuant to any other provisions hereof);
provided, that if the defaulting party commences good faith efforts to cure the
default within such period and diligently pursues to completion such cure, the
non-defaulting party shall no longer be entitled to declare an default;
<PAGE> 3
(b) Upon 30 days' written notice by Lessee to Lessor if
Lessee is unable to obtain or maintain through no fault of Lessee any license,
permit or other Governmental Approval necessary to the construction and
operation of the Improvements or Lessee's business; or
(c) By Lessee for any reason or no reason at all upon six
(6) months advance written notice from Lessee to Lessor.
12. Subleases and Assignment. Lessee at its sole discretion shall
have the right to assign its interest in and to this Lease and/or sublease the
Property and space in or on the Improvements to others who would use the
Property for the Intended Use. Lessee's sublessee(s) and assignee(s) shall be
subject to the terms hereof and entitled to rights provided herein as if said
sublessee were the Lessee under this Lease. Lessee agrees that Lessee will
give Lessor written notice of such assignment or sublease; provided, however,
the failure to give such notice shall not nullify or adversely affect the
validity of said assignment or sublease. Further, unless otherwise agreed, any
such assignment or sublease shall not relieve Lessee of any liability
hereunder.
13. Taxes. Lessee shall pay any personal property taxes assessed
on, or any portion of such taxes directly attributable to, the Improvements.
Lessor shall pay when due all real and other personal property taxes and all
other fees and assessments attributable to the Property. Lessee shall pay as
additional Rent any increase in real property taxes levied against the Property
which are directly attributable to the Improvements or Lessee's use of the
Property and Lessor agrees to furnish proof of such increase to Lease.
14. Destruction of Premises. If the Property or the Improvements
are destroyed or damaged so as to hinder effective use of Improvements in
Lessee's judgment, Lessee may elect to terminate this Lease as of the date of
the damage or destruction by so notifying the Lessor. In such event, all
rights and obligations of Lessee to Lessor shall cease as of the date of the
damage or destruction and Lessee shall be entitled to reimbursement of any Rent
prepaid by Lessee.
15. Condemnation. If a condemning authority takes all of the
Property, or a portion sufficient in Lessee's determination, to render the
Property in the opinion of Lessee unsuitable for the use which Lessee was then
making of the Property, this Lease shall terminate as of the date the title
vests in the condemning authority. Lessor and Lessee shall share in the
condemnation proceeds in proportion to the values of their respective interests
in the Property (which for Lessee shall include, where applicable, the value of
its Improvements, moving expenses, prepaid rent and business dislocation
expenses). A sale of all or part of the Property to a purchaser with the power
of eminent domain in the face of the exercise of eminent domain shall be
treated as a taking by condemnation for the purposes of this Paragraph.
16. Hold Harmless.
(a) Lessee will and does hereby indemnify, release and
save harmless Lessor and Lessor's agents, employees, and attorneys from and
against any and all law suits, actions, judgments, damages, costs, expenses and
reasonable attorneys' fees incurred in the defense of any action or proceedings
arising out of or relating to a loss of life, personal injury, property damage
or any and all other demands, claims or actions of any nature arising out of or
related to Lessee's use and occupancy of Lessor's Property, excepting only
claims arising out of the negligent or intentional acts of Lessor and Lessor's
employees, agents or independent contractors. This indemnification and hold
harmless provision shall survive the termination of this Lease.
(b) Lessor will and does hereby indemnify, release and
save harmless Lessee and Lessee's agents, employees and attorneys from and
against any and all law suits, actions, judgments, damages, costs expenses and
reasonable attorneys' fees incurred in the defense of any action or proceedings
arising out of or relating to a loss of life, personal injury, property damage
or any and all other demands, claims or actions of any nature arising out of or
related to Lessor's use and occupancy of Lessor's Property, excepting only
claims arising out of the negligent or intentional acts of Lessee and Lessee's
employees, agents or independent contractors. This indemnification and hold
harmless provision shall survive the termination of this Lease.
17. Environmental Compliance. Lessor warrants and represents
that, to the best of the Lessor's knowledge, during the period of time that
Lessor has owned the Lessor's Property, there has been no release on any
portion of Lessor's Property of contaminants, oils, asbestos, radon, PCB's,
hazardous substances or wastes as defined by federal, state or local
environmental laws, regulations or administrative orders or other materials the
removal of which is required or the maintenance of which is prohibited,
regulated or penalized by any federal, state or local government authority
("Hazardous Materials"). Lessee may have an environmental audit of the
Property performed and if the audit reveals that the Property is not free of
Hazardous Materials, Lessee shall not be obligated to take possession of the
Property under this Lease. This Lease shall be void of no further force or
effect if Hazardous Materials are discovered to exist on the Property after
Lessee takes possession of the Property, through no fault of Lessee, and Lessee
shall be entitled to a refund of all the consideration given Lessor under this
Lease.
18. Environmental Indemnities.
(a) Lessor, Lessor's heirs, grantees, successors, and
assigns shall indemnify, defend, reimburse and hold harmless Lessee from and
against any and all environmental damages arising from the presence of
Hazardous Materials upon, about or beneath the Property or migrating to or from
the Property or arising in any manner whatsoever out of the violation of any
environmental requirements pertaining to the Property and any activities
thereon, which conditions exist or existed prior to or at the time of the
execution of this Lease or which may occur at any time in the future by the
actions of Lessor.
(b) Lessee, Lessee's heirs, grantees, successors, and
assigns shall indemnify, defend, reimburse and hold harmless Lessor from and
against any and all environmental damages arising from the presence of
Hazardous Materials upon, about or beneath the Property or migrating to or from
the Property or arising in any manner whatsoever out of the violation of any
environmental requirements pertaining to the Property and any activities
thereon, which conditions arise subsequent to the execution of this Lease,
unless such conditions are caused by the actions of Lessor.
(c) Notwithstanding the obligation of Lessor to indemnify
Lessee pursuant to this agreement, Lessor shall, upon demand of Lessee, and at
Lessor's sole cost and expense, promptly take all actions to remediate the
Property which are required by any federal, state or local government agency or
political subdivision or which are reasonably necessary to mitigate
environmental damages or to allow full economic use of the Property, which
remediation is necessitated from the presence upon, about or beneath the
Property of a Hazardous Material. Such actions shall include but not be
limited to the investigation of the environmental condition of the Property,
the preparation of any feasibility studies, reports or remedial plans, and the
performance of any cleanup, remediation, containment, operation, maintenance,
monitoring or actions necessary to restore the Property to the condition
existing prior to the introduction of Hazardous Material upon, about or beneath
the Property notwithstanding any lesser standard of remediation allowable under
applicable law or governmental policies.
<PAGE> 4
19. Right of First Refusal. During the Initial Term and any
Renewal Terms of this Lease, Lessor shall, prior to selling the Property or any
real property of which the Property is a part, notify Lessee in writing of the
sales price and terms offered by a third party, together with a copy of the
third party's offer. Lessee shall have the right of first refusal to purchase
the real property being sold by Lessor on the same terms and conditions.
Lessee shall give Lessor notice of its intention to purchase the same within 30
days of receipt of Lessor's notice. If Lessee gives no such notice of its
intention to purchase the real property, Lessor may sell the real property to
the third party on the stated terms and price, as long as such sale is made
subject to the terms of this Lease. Notwithstanding the foregoing, Lessee
shall not have such right of first refusal in those instances which Lessor is
an individual and Lessor proposes to convey the real property to another member
of Lessor's family; however, any such property (including the Property) shall
be conveyed by Lessor subject to this Lease.
20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed given if
personally delivered or mailed, certified mail, return receipt requested, to
the following addresses:
If to Lessor, to: B.E. Satterwhite
3701 Weems Road
Columbus, GA 31909
If to Lessee, to: American Cable Company, Inc.
Post Office Bow 8289
Columbus, GA 31908
Attention: General Manager
with a copy to: CyberNet Holding, Inc.
1239 O.G. Skinner Drive
Post Office Box 510
West Point, Georgia 31833
Attention: President
21. Title and Quiet Enjoyment. Lessor warrants that (i) Lessor
has the full right, power, and authority to execute this Lease; (ii) Lessor has
good and marketable title to the Property and the Easement free and clear of
any liens, encumbrances or mortgages; and (iii) the Property constitutes a
legal lot that may be leased without the need for any subdivision or platting
approval. Lessor further warrants that Lessee shall have the quiet enjoyment
of the Property during the term of this Lease.
22. Leasehold Financing. Lessee may, upon notice to Lessor,
mortgage or grant a security interest in this Lease and the Improvements, and
may assign this Lease and the Improvements to any such mortgagees or holders of
security interests including their successors and assigns (hereinafter
collectively referred to as "Mortgagees"). In such event, Lessor shall execute
such consent to leasehold financing, as may reasonably be required by
Mortgagees and a subordination to such Mortgagees with respect to the
Improvements. Lessor agrees to notify Lessee and Lessee's Mortgagees
simultaneously of any default by Lessee and to give Mortgagees the same right
to cure any default as Lessee except that the cure period for any Mortgagee
shall not be less than 10 days after the receipt of the default notice.
23. Successors and Assigns. This Lease shall run with the
Property and shall be binding upon the inure to the benefit of the parties,
their respective heirs, successors, personal representatives and assigns.
24. Waiver of Lessor's Lien. Lessor hereby waives any and all
lien rights it may have, statutory or otherwise, in and to the Improvements or
any portion thereof, regardless of whether or not the same is deemed real or
personal property under applicable laws.
25. Insurance. Tenant will obtain and maintain in full force and
affect during the term of this Lease a comprehensive general liability policy
with not less than the following minimum limits:
(a) Bodily injury in the amount of $500,000 on each
person; $1,000,000 each occurrence;
(b) Property damage in the amount of $100,000.
The above policy of insurance shall name Lessor as an "additional insured" and
a copy of said policy will be provided to Lessor, upon Lessor's request.
26. Miscellaneous.
(a) The substantially prevailing party in any litigation
arising hereunder shall be entitled to its reasonable attorney's fees and court
costs, including appeals, if any.
(b) Each party agrees to furnish the other, within 10
days after request, such truthful estoppel information as the other may
reasonably request.
(c) This Lease constitutes the entire agreement and
understanding of Lessor and Lessee, and supersedes all offers, negotiations and
other agreements. There are no representations or understandings of any kind
not set forth herein. Any amendments to said Lease must be in writing and
executed by Lessor and Lessee.
(d) If either Lessor or Lessee is represented by a real
estate broker in this transaction, that party shall be fully responsible for
any fees due such broker and shall hold the other party harmless from any
claims for commission by such broker.
(e) Lessor agrees to cooperate with Lessee in executing
any documents necessary to protect Lessee's rights under this Lease or Lessee's
use of the Property and to take any further action which Lessee may reasonably
require as to effect the intent of this Lease.
(f) This Lease shall be construed in accordance with the
laws of the state in which the Property is situated.
<PAGE> 5
(g) If any term of this Lease is found to be void or
invalid, such invalidity shall not affect the remaining terms of this Lease,
which shall continue in full force and effect.
(h) Lessor and Lessee agree that either party's failure
to insist upon strict performance under this Lease, in any one or more
instances, upon any breach of any term, covenant or condition under this Lease
will not be deemed a waiver of such term, covenant or condition, nor any
subsequent breach of the same or any other term, covenant or condition.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease under seal
as of the date first written above.
<TABLE>
<S> <C> <C>
LESSOR:
/s/ B.E. Satterwhite (SEAL)
-----------------------------------------------------------
B.E. Satterwhite
Signed, sealed and delivered this 15th day of
April, 1996, in the presence of:
/s/ Teresa A. Presley
- -------------------------------------------
Witness
/s/ James R. Warner
- -------------------------------------------
Notary Public, Muscogee County, Georgia
My Commission Expires:
---------------------
James R. Warner
Notary Public
Muscogee County, GA
Official Seal
My Commission Expires 11/06/99
LESSEE:
AMERICAN CABLE COMPANY, INC.
By: /s/ Clarence J. Prestwood
--------------------------------------------------------
Title: CEO
-----------------------------------------
(CORPORATE SEAL)
Signed, sealed and delivered this 19th day of
April, 1996, in the presence of:
/s/ Lori T. Arthurs
- ---------------------------------------------------
Witness
/s/ Martha B. Quinton
- -------------------------------------------
Notary Public, Muscogee County,
Georgia
My Commission Expires:
---------------------
Notary Public, Troup County, Georgia
My Commission Expires March 23, 1998
[SEAL]
</TABLE>
<PAGE> 6
EXHIBIT "A"
LEGAL DESCRIPTION OF
LESSOR'S PROPERTY
All that lot, tract or parcel of land situate, lying and being in Columbus,
Muscogee County, Georgia, and being Part of Land Lot 23 of the 8th District,
more particularly described as follows, to-wit:
FROM THAT POINT located at the intersection of the northern side of Weems Road
with the eastern side of Effingham Way, which point is marked by an iron stake
and running thence North 01 degrees 42 minutes west along the eastern side of
Effingham Way a distance of 57.42 feet to an iron stake; thence continuing to
run along the eastern side of Effingham Way along a curve having a radius of
578.92 feet a distance of 118.59 feet to an iron stake; thence running North 88
degrees 18 minutes east a distance of 162.1 feet to an iron stake; thence
running South 01 degrees 42 minutes east a distance of 175 feet to an iron
stake located on the northern side of Weems Road; thence running south 88
degrees 18 minutes west along the northern side of Weems Road a distance of 150
feet to the point of beginning, which is located at the intersection of the
northern side of Weems with the eastern side of Effingham Way.
The above property is shown as Lot One (1) in Parcel "B" on that map dated
November 1, 1969, and recorded November 18, 1969, by Siegel Engineering
Company, in Plat Book 46, Folio 71, in the Office of the Clerk of the Superior
Court of Muscogee County, Georgia.
The above described property is conveyed subject to restrictive covenants and
easements of record applicable thereto; however, the Grantor warrants that the
property is presently zoned C-2.
*******
EXHIBIT "B"
LEGAL DESCRIPTION OF
THE PROPERTY
All that tract or parcel of land lying and being in Land Lot 23, 8th District,
Columbus, Muscogee County, Georgia, and being more particularly described as
follows:
To reach the POINT OF BEGINNING of the property herein described, commence at
an iron stake located at the northeast corner of the intersection of Weems Road
and Effingham Way, public roads located in said State and County; thence
running north 01 degrees 42' west a distance of 57.24 feet to an iron stake
located on the easterly margin of Effingham Way; running thence along a curve
to the left having a radius of 578.92 feet a distance of 118.70 feet to an iron
stake located on said easterly margin of Effingham Way; thence running south 61
degrees 25' 15" east a distance of 29.78 feet to an iron stake which marks the
POINT OF BEGINNING of the property herein described; thence running north 88
degrees 18' east a distance of 15 feet to an iron stake; running thence south 01
degrees 42' east a distance of 15 feet to an iron stake; running thence south 88
degrees 18' west a distance of 15 feet to an iron stake; running thence north 01
degrees 42' west a distance of 15 feet to the POINT OF BEGINNING of the property
herein described.
The property is also shown on map or plat of said property entitled Easement
Survey Lot 1, Block "B," Hillbrook Commercial Park, lying in land Lot 23, 8th
District, Columbus, Muscogee County, Georgia, dated February 16, 1996 and
prepared by Moon, Meeks, Mason & Vinson, Inc.
<PAGE> 1
EXHIBIT 10.7
POLE ATTACHMENT AGREEMENT
This Agreement is made and entered into the 1st day of January, 1998, by
and between Gulf Power Company, a Maine corporation, hereinafter called "Gulf,"
and BEACH CABLE, INC., hereinafter called "Licensee."
WITNESSETH:
WHEREAS, Licensee desires to furnish cable television services in the area
described in Exhibit A, attached hereto, which service will require the
installation and maintenance of cables, wires and appliances; and
WHEREAS, Licensee desires to attach certain cables, wires and appliances
to the poles of Gulf; and
WHEREAS, Gulf is willing to allow the attachment of cables, wires and
appliances to its poles in the area described in Exhibit A where, in Gulf's
judgment, that attachment will not interfere with its own service requirements,
including considerations of economy and safety, and where Gulf is protected and
indemnified against all costs to and liabilities against it arising from such
attachment.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained Gulf and Licensee hereby agree and contract with each other as
follows:
1. Term of Agreement. The term of this Agreement shall commence
on the 1st day of January, 1998 and subject to all of the provisions of this
Agreement, shall continue in full force and effect thereafter until the 31st
day of December, 2002, unless earlier terminated according to the provisions of
this Agreement. The parties may agree to extend this Agreement for an
additional five (5) year period
1
<PAGE> 2
and for consecutive five (5) year periods upon agreement as to terms, including
fees and charges, for each additional extension period.
2. Conditions Precedent. As conditions to Gulf accepting a
permit application from the Licensee or granting a permit to the Licensee to
attach to Gulf's distribution poles, Licensee shall submit evidence
satisfactory to Gulf of the following:
A. Licensee's authority to erect and maintain its
facilities within public streets, highways and other thoroughfares, and any
necessary consent or franchise from state or municipal authorities or from the
owners of the property upon which the poles are located to construct and
maintain its facilities on them;
B. Licensee's financial stability;
C. Certificate of Insurance required under Paragraph 20;
and
D. Licensee's operational expertise. Copies of the
necessary consents or franchises from state or municipal authorities are
attached hereto as Exhibit C.
3. Application and Permits.
A. Before attaching to any of Gulf's distribution poles
(hereinafter referred to as "Gulf's poles"), Licensee shall submit to Gulf an
Application for Pole Attachment Permit. The only exception shall be as
provided in Section 3.B. The application and permit form is set forth in
Exhibit B, attached hereto. The application shall be accompanied by two (2)
detailed copies of Licensee's construction drawings which clearly identify the
poles to which the Licensee will attach if a permit is granted. If the
proposed attachment is satisfactory to Gulf, a permit will be granted upon
payment of a one time permit fee of $1.00 per attachment plus Make Ready costs
as described in Section 12.A.. Prior to commencement of construction by the
Licensee, Gulf may require a preconstruction conference, at Gulf's discretion.
Notwithstanding the issuance of an
2
<PAGE> 3
attachment permit, Licensee shall at no time make or maintain an attachment to
Gulf's pole or substitute pole if the spacing on the pole, the ground
clearance, or other characteristics of the attachment are not in strict
conformity with the National Electrical Safety Code (the "Code") and any other
applicable codes, rules or regulations of any governing body having
jurisdiction. Except as provided in Section 3.B., the failure of the Licensee
to obtain such a permit prior to making an attachment shall constitute a
trespass and a violation of this Agreement. Gulf may forbid new attachments to
its poles by Licensee in the event Licensee is in default hereunder.
B. Attachment to Gulf's poles without obtaining a prior permit
shall be allowed only for service drops. Licensee shall ensure that such
attachments are in strict conformity with the National Electrical Safety Code
and any other applicable codes, rules or regulations of any governing body
having jurisdiction. In particular, Licensee shall not attach if Make Ready
work is required to obtain adequate clearance or for any other reason. Any
attachment made not in conformity with these requirements constitutes a default
under this Agreement. Gulf reserves the right to suspend this provision in the
event it is determined that Licensee is not properly reporting the installation
of service drops.
At the end of each month, Licensee shall submit a permit
application (Exhibit D) listing all such service drop attachments not
previously permitted. The listing shall include the location or address, TLM
pole number, number of poles attached to, and date of attachment. Each
application shall include a one-time permit fee of $1.00 per attachment.
4. Payment and Billing. Licensee shall pay Gulf a semi-annual
rent of $3.15 per pole for the years of 1998 through 2000. The rental rate for
2001 will be calculated in December, 2000 and the rental rate for 2002 will be
calculated in December, 2001, to the extent permitted by applicable law, and
will be based on the
3
<PAGE> 4
type of telecommunication services the Licensee is providing at that time.
Bills for rent shall be rendered by Gulf on or before January 15th and July
l5th of each year. All attachments permitted and those which exist on Gulf's
poles on December 31st and June 30th of each year will be invoiced. Licensee
shall pay Gulf in advance for the succeeding six (6) months and such payment
shall be based on the number of attachments permitted whether an attachment has
been made or continues. Upon the issuance of each attachment permit, Licensee
shall pay Gulf rental for such attachment based on the time remaining between
the date the permit is granted and the end of the semi-annual rental period.
Thereafter, such attachment shall be billed by Gulf with all other attachments
on a semi-annual basis. In the event a field survey, as described in Section
15.B., indicates that not all attachments have been permitted, the difference
between the number of attachments counted and the number of attachments
permitted shall be billed as if all such attachments were in place 2 1/2 years
prior to the field survey. The amount due from Licensee for such attachments
shall be based on the semi-annual billing rate in effect during each of the
prior billing periods, plus eighteen (18%) percent interest per annum. Gulf
shall notify Licensee of the amount due and payment shall be due upon receipt
of such notice. All bills for semi-annual rent, for inspections and for other
charges under this Agreement shall be due upon receipt. Failure to pay bills
within thirty (30) days after receipt is a default hereunder for which Gulf may
terminate this Agreement. All bills thirty-one (31 ) days past due shall bear
interest at eighteen (18%) percent per annum and interest shall begin to accrue
as of the date due.
5. Bond. At the beginning of or during the contract period
Licensee may be required at Gulf's discretion to furnish bond or satisfactory
evidence of contractual insurance coverage to guarantee the payment of any sums
which may become due to Gulf for rentals, for work performed for the benefit of
Licensee, and
4
<PAGE> 5
for other charges under this Agreement including the removal of attachments
upon termination of this Agreement in the amount as specified in the following
schedule:
<TABLE>
<CAPTION>
Number of Attachments Amounts of Coverage
--------------------- -------------------
<S> <C>
0-500 $10,000
501-1000 20,000
1001-1500 30,000
1501-2000 40,000
2001-2500 50,000
</TABLE>
Bond shall continue to increase by $10,000 for each increase in number of
attachments by increments of 500 up to a maximum of $250,000.
6. Attachment and Maintenance. As used herein, an attachment is
defined as the material or apparatus which is used by Licensee in the
construction, operation, or maintenance of its plant and which is attached to
Gulf's poles. One attachment is defined as a single wire or cable attached to
the pole and other equipment, apparatus or facilities of Licensee lashed to
such wire or cable or (except in the case of additional wires or cables)
attached to the pole and occupying a vertical section of the pole not exceeding
six (6) inches above and below the point of attachment of the single wire or
cable. Licensee shall erect and maintain at its own expense cables, wires and
appliances in safe condition and in thorough repair. It shall be the sole
obligation of Licensee to ensure compliance with the applicable requirements
and specifications of the National Electrical Safety Code and amendments
thereto, including clearance requirements between power and cable lines, safe
work practices, and any other applicable codes, rules or regulations now in
effect or which hereafter may be issued of any governing body having
jurisdiction. Upon identification of any violation by Licensee of any code,
5
<PAGE> 6
rule, or regulation Licensee shall immediately institute corrective action, at
its own expense. In the event Licensee fails to correct any violation within a
reasonable time, Gulf may take whatever corrective action it deems appropriate
in its sole discretion. Recognizing that strict compliance with the terms of
this agreement is essential to the fair and equitable allocation of limited
pole space among competing Licensees, and as a deterrent to such non-compliance
in order to preserve the public welfare, Licensee shall pay Gulf its actual
costs for such corrective action plus fifteen (15%) percent. Licensee further
agrees to indemnify and hold Gulf harmless for any injury or damages, including
but not limited to actual damage awards, fines, settlements, attorney's fees
and court or administrative costs, resulting from Licensee's noncompliance with
any applicable code, rule or regulation as described above.
Licensee shall also comply with Gulf's specifications for construction.
Licensee shall be responsible for installing anchors and guys of sufficient
size and strength to accommodate their own load. In order to avoid placing
undue stress on Gulf's poles, necessary anchors and guys shall be installed
prior to tensioning of the cable strand. Attached hereto are drawings marked
Plates 1 through 11 inclusive which are descriptive of required construction
under some conditions and are to serve as construction guides but may not apply
in all situations. These drawings may be changed from time to time by Gulf and
do not supersede any applicable National Electrical Safety Code requirements,
except to the extent that they are more stringent than the Code.
7. Attachment Identification. - Licensee may be required to mark
its facilities in accordance with the Florida Utilities Coordinating Committee
guidelines, or other method acceptable to Gulf. In any given area, the
requirement to mark will depend on the date of the original agreement between
Licensee and Gulf for that area, or the date of any amendment to such agreement
to expand to
6
<PAGE> 7
that area. The Licensee with the earliest agreement or amendment for a given
area shall not be required to mark its facilities. Subsequent Licensees shall
be required to mark all facilities installed in the given area.
If Licensee follows Florida Utilities Coordinating Committee guidelines,
Licensee shall request registration of a unique marking tag for its
attachments, if not already registered. Gulf will forward Licensee's request
to the appropriate authority.
8. Gulf's Service Requirements. Gulf reserves the right to
maintain its poles and to operate its facilities on them in the manner best
suited to fulfill its own service requirements, including considerations of
economy and safety. Use of Gulf's poles under this Agreement will create or
vest in Licensee no ownership or property rights in Gulf's poles,
notwithstanding the length of use. Gulf is in no way required to keep in place
any of its poles or other facilities for a period longer than is necessary to
meet its own service requirements. Gulf reserves the right to refuse to grant
an attachment permit to any pole on the basis of insufficient capacity or for
reasons of safety, reliability and generally applicable engineering purposes.
Gulf will exercise due care to avoid interfering with Licensee facilities.
However, Gulf will in no way be liable to Licensee for interruption of
Licensee's service or for interference with the operation of Licensee's cables,
wires and appliances, except for Gulf's negligence.
9. No Interference. Licensee's attachments shall not interfere
with the present or future use and maintenance of Gulf's poles by Gulf or with
other parties' use of Gulf's poles nor interfere with the use and maintenance
of facilities placed on the poles or which may from time to time be placed
thereon, provided such other parties' use is in accordance with applicable
regulations and specifications of Gulf and the National Electrical Safety Code,
and other applicable codes, rules and
7
<PAGE> 8
regulations. Gulf shall be the sole judge as to the requirements for the
present or future use of its poles and facilities and of any interference
therewith.
10. Rules and Procedures. Gulf reserves the right to establish
rules or procedures to implement and allocate Make Ready billing pursuant to
Section 12.A. and to provide for an orderly process of pole attachment in the
event Licensee and one or more other parties desire to attach to the same poles
and Licensee shall adhere to such rules or procedures.
11. Order on the Pole.
A. The existing telephone companies (Local Exchange
Carrier) contracting for attachments to Gulf's poles, pursuant to a joint use
agreement, are to be assigned to the lowest relative position on any given
pole. Other Licensees contracting with Gulf for pole attachments shall attach
above the telephone facilities. Among two (2) or more Licensees, position of
attachments on the pole shall be determined according to the date of the
original agreement between the Licensee and Gulf for a given area, or the date
of any amendment to such agreement to expand to a given area. In any given
area, the Licensee with the earliest agreement or amended agreement shall
occupy the first position above the telephone facilities, if space is
available. The second Licensee shall attach to the second position above the
telephone facilities, if space is available, and so on.
B. When two (2) or more Licensees desire to attach to
the same Gulf poles, preference for attachment will be given in order of
application for permit received. The attaching Licensee shall attach in their
assigned space, according to Section 1 1.A., if space is available. If any
company with priority under paragraph 11.A. above, has not exercised its right
to attach to space on a given pole, companies attaching under subsequent
agreements may make provisional attachment in the space which ordinarily would
be available to the company with priority, if their own assigned space is not
available. However, if the company
8
<PAGE> 9
having priority subsequently requests attachment rights, any other companies
with attachments in the area to which the earlier companies have priority shall
relinquish their position and reattach their facilities farther up the pole as
provided in Section 12 below. The company requesting attachment rights shall
pay all make ready costs, if any, associated with such reattachment, and
contact the other companies to initiate their transfer.
12. Make Ready, Substitutions, Changes and Rearrangements.
A. Make Ready. If it should appear to Gulf that a pole
is too short, or inadequate, or any rearrangement of Gulf's or other parties'
facilities is required to accommodate the attachments of Licensee, Gulf shall
notify Licensee of the pole substitutions, additions, changes and
rearrangements which Gulf deems necessary and their estimated cost. Such
notice shall constitute a denial of the applicable permit(s) unless Licensee
authorizes Gulf to make the substitutions, additions, changes and
rearrangements specified. Licensee shall authorize the make ready work within
thirty (30) days after notification from Gulf, otherwise the permit will be
denied. Upon such authorization, Licensee shall reimburse Gulf for all costs
incurred by it in connection with such changes. Licensee shall reimburse the
owner of any other facilities attached to that pole for any reasonable expense
incurred by that owner in conjunction with such changes. Licensee shall pay to
Gulf at the time of the issuance of each attachment permit Gulf's estimated
cost of providing the space for all of the attachments covered by that permit
pursuant to Section 3 of this Agreement.
In the event the Licensee elects to install their facilities underground
in Gulf's pole line, they shall remain underground for a minimum of five (5)
spans before attaching to Gulf's poles. Where Licensee shows sufficient
reason, Gulf may grant a waiver of this provision in specific cases.
9
<PAGE> 10
B. Substitutions, Chances, and Rearrangements. Licensee
shall, at its own expense, install the attachments and maintain them in safe
condition in a manner satisfactory to Gulf. Licensee shall, at its own
expense, at any time requested by Gulf for good cause remove, relocate,
replace, and renew its facilities on the poles, transfer them to substituted
poles or perform any other work in connection with the facilities that Gulf may
require. Licensee shall notify Gulf immediately after completing the requested
work. If the Licensee fails to comply with Gulf's request within thirty (30)
days of receipt of such request, Gulf may perform or have performed such work
at Licensee's expense with no liability therefor. Licensee shall pay Gulf its
cost for such work plus fifteen (15%) percent.
In any case deemed by Gulf to be an emergency, Gulf may, at the expense of
Licensee, arrange to remove, relocate, replace or renew the facilities of
Licensee, transfer them to substituted poles or perform any other work in
connection with the facilities that may be required in the maintenance,
replacement, removal or relocation of the poles or the facilities on them. An
emergency includes, but is not limited to, customer outages and circumstances
that threaten to cause property damage and/or personal injury. Gulf will
invoice Licensee for actual expenses incurred in performing these emergency
measures.
13. Use of Qualified Employees and Contractors. The Licensee
shall ensure that its employees and contractors are knowledgeable of the
requirements of the NESC and other safe work practice codes for maintaining
proper work practices in order to avoid dangerous conditions. Licensee
expressly agrees to take all necessary steps to ensure that its employees and
contractors are adequately trained and qualified to work with and around
energized conductors, and shall further ensure that its employees and
contractors are appropriately and strictly supervised while performing work on
Gulf's poles. Licensee agrees to indemnify and hold
10
<PAGE> 11
harmless Gulf for any failure of Licensee, its employees or contractors to
fulfill their obligations to perform work in a safe and proper manner.
14. Damage to Facilities. Licensee shall exercise caution to
avoid damage to facilities of Gulf and of others on Gulf's poles. Licensee
assumes responsibility for any and all loss or expense arising out of such
damage caused by it and shall reimburse Gulf or others occupying Gulf's poles
for such loss or expense. Licensee shall immediately report damage caused by
it to Gulf and to others occupying Gulf's poles which are in any way affected
by such damage.
15. Inspections and Surveys.
A. Inspections. Gulf reserves the right to inspect each
new attachment and to make periodic inspections of all attachments as plant
conditions may warrant. Licensee agrees to pay a $25.00 per attachment
violation fee for each Code violation found during such inspections. In
addition, Licensee agrees to pay a violation fee of $25.00 per attachment for
any unpermitted attachments found during these inspections. Gulf's right of
inspection as provided herein in no way operates to relieve Licensee of any
responsibility, obligation or liability arising hereunder nor does it impose
any obligation on Gulf.
B. Field Surveys. Gulf reserves the right to make field
surveys of its poles in the area described in Exhibit A as it may be amended
from time to time pursuant to subparagraph C hereof, at intervals not more
often than once every five (5) years, for the purpose of determining the actual
number of Licensee attachments. Licensee agrees to pay a violation fee of
$25.00 per attachment for any unpermitted attachments in excess of ten (10) or
two percent (2%) of the last verified reported total, whichever is greater.
Gulf shall bear the cost of such field surveys, unless the number of
attachments counted exceeds by five percent (5%) or more the number of
attachments for which permits have been issued. In the event the number
counted exceeds by five percent (5%) or more the number of
11
<PAGE> 12
attachments for which permits have been issued, Licensee shall pay, in addition
to the violation fee, the cost of field surveys attributable to the area
described in Exhibit A as amended, pursuant to Section 4 of this Agreement.
Gulf shall notify Licensee at least thirty (30) days in advance of the field
survey and shall specify the method to be used in performing the survey.
Should Licensee disagree with results of the survey, a new survey may be
performed by Gulf and Licensee at Licensee's sole expense.
C. Expansion of Service Area. Should at any time
following execution of this Agreement the Licensee desire to expand or modify
the area described in Exhibit A, Licensee shall provide Gulf in writing an
amended Exhibit A which shall include such areas, and shall receive Gulf's
written approval prior to such expansion or modification becoming a part of
this agreement. No new attachments shall be made in the amended area before
the amended Exhibit A is approved.
16. Franchises. Licensee shall provide copies of franchise
renewals to Gulf immediately upon Licensee's receipt of same. In the event
Licensee fails to acquire or retain a franchise required within the area
described in Exhibit A, such failure shall operate as grounds upon which Gulf
may cancel the permits in or terminate this Agreement as to the area affected
by such franchise pursuant to Section 23.
17. Removal. Licensee may at any time remove its attachments from
any pole upon prior written notice to Gulf. Upon verification by Licensee to
Gulf that pole attachments have been removed, Gulf will reimburse Licensee the
rental remaining from the date of the removal to the end of the semi-annual
rental period which will be included as a credit on the next semi-annual bill.
18. Pole Abandonment. If Gulf desires at any time to abandon any
pole, it shall give Licensee notice in writing to that effect at least sixty
(60) days prior to
12
<PAGE> 13
the date on which it intends to abandon such pole. Licensee may then purchase
the pole from Gulf at fair market value; however, if at the expiration of such
period Licensee has not removed all of its attachments therefrom or purchased
the pole, Gulf may proceed to remove such attachments at the expense of
Licensee with no liability therefor. Licensee shall pay Gulf for its cost of
removal plus fifteen (15%) percent.
19. Indemnification. Licensee shall indemnify and hold harmless
Gulf and its representatives, agents, officers and employees from and against
any and all loss, damage, or liability resulting from demands, claims, suits,
or actions of any character presented or brought for any injuries (including
death) to persons and for damages to property caused by or arising out of any
negligent (including strict liability), wanton or intentional act or omission
of Licensee, anyone directly or indirectly employed by it, or anyone for whose
acts it may be liable, in any way associated or connected with the performance
of the obligations herein, in whatever manner the same may be caused, and
whether or not the same be caused by or arise out of the joint, concurrent, or
contributory negligence of Gulf, or its representatives, agents, officers or
employees. The indemnity obligations hereunder shall extend only to that
proportion of the loss, damage or liability which is directly attributable to
the negligence, wanton or intentional acts of the Licensee, anyone directly or
indirectly employed by it, or anyone for whose acts it may be liable. It is
the expressed intent of the parties that Gulf shall be liable only for those
damages attributable to its own negligence and shall not be liable for any
damages (either economic or non-economic) attributable to the acts of any other
person or entity. The foregoing indemnity shall include, but not be limited
to, court costs, attorney's fees, costs of investigation, costs of defense,
settlements and judgments associated with such demands, claims, suits or
actions. The Licensee
13
<PAGE> 14
shall make an immediate report to Gulf of the occurrence of any personal injury
or property damage while working on Gulf's facilities.
20. Insurance. Licensee shall procure and maintain insurance to
protect it and Gulf against claims for damage to property or injury to or death
to persons, as described but not limited by Section 19, in the amount of at
least $1,000,000 for damages arising from one occurrence, which amount may be
modified by Gulf for good cause upon thirty (30) days prior written notice to
Licensee. Upon such notification, Licensee shall procure and maintain
insurance in the amount specified in the notification such amount not to exceed
$5,000,000. Licensee shall also carry such insurance as will protect it from
Workmen's Compensation Laws in effect as may be applicable to it. All
insurance requirements shall be kept in force by Licensee for the life of this
Agreement and the company or companies issuing such insurance shall be approved
by Gulf such approval not to be unreasonably withheld. Gulf shall be an
additional insured under Licensee's liability insurance policy and Licensee
shall furnish to Gulf, a certificate showing the issuance of such insurance and
the insurance company's agreement that it will not cancel, terminate or change
its policy except after thirty (30) days prior written notice to Gulf.
Licensee's obligation to indemnify Gulf specified in Section l9 is not limited
to the amount of liability insurance coverage purchased by Licensee.
21. Rights-of-Way. Gulf does not warrant the extent of its
rights-of-way. Upon notice from Gulf to Licensee that the use of any pole is
forbidden by governmental authorities or property owners, the permit covering
the use of that pole shall immediately terminate, and Licensee shall remove its
cables, wires and appliances immediately from the affected poles.
22. Types of Service. Licensee is authorized to attach its cable
plant to Gulf's poles for the purpose of delivering cable television services
to Licensee's
14
<PAGE> 15
commercial and residential subscribers in the area described in Exhibit A,
pursuant to the franchises granted by the governmental entities served by the
Licensee.
23. Termination and Cancellation.
A. Default. If Licensee fails to comply with any of the
provisions of this Agreement and fails within thirty (30) days after written
notice from Gulf to cure a default, Gulf may terminate this Agreement or cancel
the permits covering the poles as to which such default has occurred and
Licensee shall immediately remove all affected attachments. Should Licensee
fail to remove its attachments after such termination or cancellation within
the (30) day period after Gulf's written notice to cure a default, Gulf may
proceed to do so at the expense of Licensee with no liability to Gulf therefor.
Licensee shall pay Gulf its cost for such removal plus fifteen (15%) percent.
If Licensee fails to perform work required to cure a default, Gulf may elect to
perform such work at the expense of Licensee with no liability therefor.
Licensee shall pay Gulf its costs for performing such work plus fifteen (15%)
percent.
B. Termination Due to Nonattachment. If Licensee has
made no attachments to any of Gulf's poles within the area covered by an
attachment agreement within one (1) year after the date of the agreement, Gulf
may terminate the agreement immediately and shall provide notice to the
Licensee of such termination thereafter. Likewise, if Licensee under an
existing attachment agreement enters into an amendment to that agreement to
include a new area but does not attach to any Gulf's poles within the new area
within one (1) year after the date of the amendment, Gulf may terminate the
amendment in the same manner as it would be able to terminate the agreement.
Termination of any such amendment shall not affect the original agreement nor
the area covered by the original agreement, if attachments are made under the
original agreement within the applicable one (1) year period. If Licensee
makes attachments to Gulf's poles
15
<PAGE> 16
under an agreement or amendment of agreement but removes all such attachments
and fails to make any new attachment for a period of one (1) year after the
removal of the last attachment, Gulf may terminate the agreement or amendment
of agreement as provided above.
C. Obligations Upon Expiration. Licensee shall, within
thirty (30) days following the expiration of this Agreement remove its
attachment from Gulf's poles. Should Licensee fail to remove its attachments
within thirty (30) days after expiration of the term Gulf may proceed to do so
at the expense of Licensee with no liability of Gulf therefor. Licensee shall
pay Gulf its cost for such removal plus fifteen (15%) percent.
D. Obligations Prior to Removal of Attachments. Upon
expiration or termination of this Agreement, the rights and obligations
conferred hereunder shall remain in full force and effect until such time as
Licensee's attachments are removed from Gulf's poles, in accordance with
Section 23.C., except that no new attachments shall be made.
E. Temporary Extension of Agreement Beyond Expiration or
Termination. Upon expiration or termination and with the prior written
authorization of Gulf, all rights and obligations conferred hereunder may
remain in full force and effect, including the right to apply for and make new
attachments, in the event Gulf determines that the parties are actively and in
good faith negotiating a new agreement. If, however, in Gulf's sole discretion
it is determined that negotiations have been discontinued or are not proceeding
in good faith, then no new attachments shall be permitted or made; all other
rights and obligations conferred hereunder shall remain in full force and
effect until Licensee's attachments have been removed from Gulf's poles. Gulf
may terminate the negotiation period upon breakdown of negotiations or at any
time upon thirty (30) days prior written notice to Licensee. Licensee shall
remove its attachments from
16
<PAGE> 17
Gulf's poles within thirty (30) days after such notice. If not so removed,
Gulf may remove such attachments at Licensee's expense with no liability
therefor. Licensee shall pay Gulf its cost for such removal plus fifteen (15%)
percent.
F. Termination or Modification upon a Change of Law.
If, in a final and unappealable order or judgement, the Federal Communications
Commission (the "FCC") or any governing body or court with appropriate
jurisdiction repeals, overrules or modifies 47 U.S.C. Section 224 insofar as it
requires Gulf to provide pole access to Licensee, then Gulf shall be entitled
to terminate Licensee's rights hereunder including, but without limitation,
Licensee's right to attach to any or all of Gulf's poles immediately or after
such period of notice as may be required by law. If, in a final and
unappealable order or judgement, the FCC or any governing body or court with
appropriate jurisdiction repeals, overrules or modifies 47 U.S.C. Section 224
insofar as it sets a maximum attachment fee that Gulf may charge Licensee, then
Gulf shall be entitled to modify the attachment fee set forth in Section 4.
hereof to the extent then permitted by law. To the extent then permitted by
law, Licensee shall pay to Gulf retroactive fees for all poles previously used
by Licensee in an amount equal to the difference between the rate charged by
Gulf after such repeal, overruling, or modification less the fees previously
paid for such poles by Licensee.
24. Rights Previously Conferred. Nothing in this Agreement shall
be construed as affecting the rights or privileges to use Gulf's poles
previously conferred by Gulf to others who are not parties to this Agreement.
Gulf may continue to confer such rights or privileges. The attachment
privileges granted to Licensee in this Agreement are non-exclusive and subject
to contracts and arrangements between Gulf and others who are not parties to
this Agreement.
25. Waiver. Failure by Gulf to enforce any of the terms of this
Agreement shall not constitute a waiver of future compliance with any such term
or terms.
17
<PAGE> 18
26. Notice. All notices regarding the attachment, maintenance or
removal of Licensee's attachments shall be sent electronically using the
National Joint Utilities Notification System. All other notices under this
Agreement must be given in writing by registered or certified mail, return
receipt requested, and mailed with sufficient postage prepaid to the party to
be given such notice. Notice to Gulf shall be addressed to:
PROJECT SERVICES ADMINISTRATOR
GULF POWER COMPANY
ONE ENERGY PLACE
PENSACOLA, FL 32520
Notice to Licensee shall be addressed to:
BEACH CABLE, INC.
P. O. BOX 2462
PANAMA CITY, FL 32402
27. Assignment. Licensee shall not assign, transfer or sublet the
privilege hereby granted without the prior written consent of Gulf, which
consent shall not be unreasonably withheld. Gulf shall grant or deny a request
for Consent to Assignment within sixty (60) days from receipt of the request.
Such request shall be accompanied by the information described in Section 2.
28. Enforcement. In the event enforcement of any provisions of
this Agreement becomes necessary, each company shall pay its own costs incurred
in pursuing such enforcement including reasonable attorney's fees.
29. Laws of State. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
30. Severability. In the event any covenant, condition, or
provision of this Agreement is held to be invalid or unenforceable by a final
judgment of a court of
18
<PAGE> 19
competent jurisdiction after construing this Agreement, the invalidity or
unenforceability thereof shall in no way affect any of the other covenants,
conditions, or provisions hereof, provided that such remaining covenants,
conditions, or provisions can thereafter be applicable and effective without
material prejudice to either Gulf or Licensee. This instrument embodies the
entire Agreement of the parties hereto and supersedes all prior negotiations,
representations or agreements either written or oral. This Agreement may be
amended only by written instrument signed by both Gulf and Licensee and the
authorized representatives of Gulf and Licensee.
IN WITNESS WHEREOF, Licensee and Gulf have caused this Agreement to be
executed by their authorized representatives and be effective as of the day and
year first written above.
WITNESS: Beach Cable, Inc.
By: /s/ Robin Schwab By: /s/ Frank Atkinson
--------------------------- ----------------------------------
Title: General Manager
-------------------------------
ATTEST: Gulf Power Company
By: /s/ Susan D. Cranmer By: /s/ F.M. Fisher, Jr.
--------------------------- -------------------------------------
Asst. Secretary Vice President - Power Delivery and
Customer Operations
19
<PAGE> 20
EXHIBIT A
DESCRIPTION OF SERVICE AREA
Name of Company Beach Cable, Inc.
--------------------------------------------------------
For Agreement Dated January 1, 1998
--------------------------------------------------------
A description of the geographical boundaries of the Agreement by Township,
Range and Section:
1. The City of Panama City Beach, Florida.
2. The unincorporated areas of Bay County between Hathaway Bridge as the
Eastern boundary, the Phillips Inlet Bridge as the Western boundary,
the Gulf of Mexico as the Southern boundary, and St. Andrews Bay,
North Bay and the Intercoastal Waterway as the Northern boundary.
WITNESS: Beach Cable, Inc.
By: /s/ Robin Schwab By: /s/ Frank Atkinson
---------------------------- ---------------------------------------
Title: General Manager
------------------------------------
ATTEST: Gulf Power Company
By: /s/ Susan D. Cranmer By: /s/ F.M. Fisher, Jr.
---------------------------- ---------------------------------------
Asst. Secretary Vice President - Power Delivery and
Customer Operations
20
<PAGE> 21
EXHIBIT B
APPLICATION FOR POLE ATTACHMENT PERMIT
City of
-----------------------------
State of
----------------------------
County
------------------------------
Date
--------------------------------
NAME OF LICENSEE
------------------------------------------------------------
In accordance with the terms of Agreement dated
_____________________________, 19__________, application is hereby made for
permit to make attachments to the following poles:
Location/ TLN
Pole No. Map No. Location and Type of Attachments
- -------- ------- --------------------------------
By
-------------------------------------
Title
----------------------------------
Licensee
Permit granted________________________________, 19_____, except is subject
to Licensee's approval below if pole rearrangements are required. Estimated
cost of pole rearrangements required to provide space for Licensee's
attachments:
$________________________________ as shown on DSO No._________________________
GULF POWER COMPANY
By
--------------------------------------
Title
-----------------------------------
Licensor
The above charges
for rearrangements approved
By Permit No.
----------------------------------------- -------------------
Title Total Poles
-------------------------------------- ------------------
Licensee
<PAGE> 22
EXHIBIT D
APPLICATION FOR POLE ATTACHMENT PERMIT
AFTER-THE-FACT FORM FOR SERVICE DROPS
City of
-----------------------------
State of
----------------------------
County
------------------------------
Date
--------------------------------
NAME OF LICENSEE
---------------------------------------------------------------
In accordance with the terms of Agreement dated
_____________________________, 19__________, application is hereby made for
permit to make attachments to the following poles:
TLM Pole No. NO. Date of
Service Address If Available of poles Attachments
- --------------- ------------ -------- -----------
Licensee certifies that the above attachments have been installed on Gulf's
poles in strict conformity with the National Electrical Safety Code and any
other applicable codes, rules, or regulations of any governing body having
jurisdiction.
By
------------------------------------------
Title
---------------------------------------
Licensee
Permit granted this day of _________________________________, 19____.
GULF POWER COMPANY
Permit No.: By
--------------------------- -------------------------------
Total Poles: Title
-------------------------- ----------------------------
Licensor
<PAGE> 23
[DIAGRAM OF
SEPARATION OF SERVICE DROPS
APPEARS HERE]
PLATE
C-1
<PAGE> 24
[DIAGRAM OF
SEPARATION AT POLE PARALLEL FACILITIES
APPEARS HERE]
PLATE
C-2
<PAGE> 25
[DIAGRAM OF
JOINT USE CONSTRUCTION
TYPICAL SINGLE TRANSFORMER INSTALLATION
7.2 KV CONSTRUCTION
APPEARS HERE]
PLATE
C-3
<PAGE> 26
[DIAGRAM OF
JOINT USE CONSTRUCTION
TYPICAL ATTACHMENT OF CATV DISTRIBUTION SYSTEMS TO
GPCO POLES TYPICAL OUTDOOR LIGHT INSTALLATION
APPEARS HERE]
PLATE
C-4
<PAGE> 27
[DIAGRAM OF
GROUNDING CONNECTIONS
APPEARS HERE]
PLATE
C-5
<PAGE> 28
[DIAGRAM OF
JOINT USE CONSTRUCTION
MINIMUM CLIMBING SPACE THROUGH COMMUNICATION CIRCUITS
APPEARS HERE]
PLATE
C-6
<PAGE> 29
[DIAGRAM OF
SEPARATION OF DOWN GUYS
APPEARS HERE]
PLATE
C-7
<PAGE> 30
[DIAGRAM OF
SEPARATION AT POLE UNDERGROUND RISERS
APPEARS HERE]
PLATE
C-8
<PAGE> 31
[DIAGRAM OF
COMMUNICATION/SIGNAL TYPE ATTACHMENT
C.A.T.V. POWER SUPPLY INSTALLATION
APPEARS HERE]
PLATE
C-9
<PAGE> 32
[DIAGRAM OF
BONDING OF PADMOUNT TRANSFORMER
TO COMMUNICATION COMPANY FACILITIES
APPEARS HERE]
PLATE
C-10
<PAGE> 33
[DIAGRAM OF
JOINT USE CONSTRUCTION
SEPARATION OF COMMUNICATION CABLES
AND
GULF POWER CO. FACILITIES
APPEARS HERE]
PLATE
C-11
<PAGE> 1
EXHIBIT 10.8
LEASE
THIS AGREEMENT, made as of the 19th day of Aug, 1996 by and between
Vaughn/Taylor, L.L.C., located at Montgomery, Alabama ("Lessor"), and Montgomery
Cablevision and Entertainment, Incorporated, an Alabama corporation with its
principal office located at 1450 Ann Street, Montgomery, Alabama ("Lessee").
WITNESSETH:
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 approximately 15 feet by 15 feet n/a acres ("the
Premises") and being more particularly described as follows:
SEE SCHEDULE "A"
together with the unrestricted right of ingress, egress and access to Lessee's
installations, all as shown on Schedule A attached hereto and made a part
hereof. 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 of communication services by
Lessee. All of the above improvements are together called "Lessee's
installations."
<PAGE> 2
(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 10 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 Three Thousand Dollars ($3,000.00), as annual rent
(the Base Rent), said annual rent to be paid in equal monthly installments in
advance in the amount of Two Hundred Fifty Dollars ($250.00), 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.
3.2 Commencing on the fifth 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
2
<PAGE> 3
increased or decreased based on the Consumer Price Index ("CPI"). The adjustment
shall be made by multiplying the Base Rent by a fraction, the denominator of
such fraction to be the CPI for the calendar year 1995 and the numerator to be
CPI for the year immediately preceding the adjustment date.
However, the annual rent shall never increase or decrease more
than Two Hundred Fifty Dollars ($250.00) 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.
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 Lessor shall promptly pay any increases in ad valorem taxes, if
any, due solely to the addition of Lessee's installations to the real property,
but Lessee agrees to pay in additional rent upon notification, in writing, by
Lessor of said increased taxes applicable to the Premises, due to the degree
such increase is a result of the addition of Lessee's installations. Lessor
expressly agrees that Lessee has no responsibility to pay more than its pro rata
share of an ad valorem tax increase directly attributable to the addition of
Lessee's installations to the Premises. If requested by Lessee, Lessor shall
provide documentation from appropriate officials reflecting said increased taxes
and Lessee's proportional share. Within thirty (30) days after Lessor gives
such written notice, Lessee shall pay
3
<PAGE> 4
to Lessor, in one lump sum payment, Lessee's proportional share of the
additional taxes for that tax year. 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 of five (5) 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.
4.2 If prior to the expiration of the initial term of this Lease,
Lessee has not given Lessor notice in writing of its election to renew as
provided herein, then the Lessee shall be deemed to be a Lessee from month to
month only. On each renewal, the rent shall be adjusted in the manner provided
in Section 3.2, except that the numerator shall be the CPI for the year
immediately preceding the renewal date. 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,
4
<PAGE> 5
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.
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.
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 conduct its business
thereon without Lessor's prior consent. 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.
5
<PAGE> 6
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 Lessor and Lessor's agents and employees shall not be liable
for, and Lessee waives, any and all claims for damages to persons and property
sustained by Lessee or Lessee's agents, employees, assigns, invitees or any
person claiming through said parties resulting from any accident or occurrence
in or upon the Premises and agrees to hold Lessor harmless from any such claim,
action or cause of action including attorney's fees and court costs, except for
the willful/intentional acts of Lessor or Lessor's agents and employees or the
negligence 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.
6
<PAGE> 7
(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.
(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.
(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 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. Provided
further, Lessee shall be entitled to a refund of all prior
consideration given under this Lease.
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.
7
<PAGE> 8
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 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
8
<PAGE> 9
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 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,
9
<PAGE> 10
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 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
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equity, by statute or otherwise. Provided further, that if an event of default
occurs and is not cured within 30 days, Lessor shall, at its option, be entitled
to the remaining rent for the balance of the current Lease term as if it were at
once due and payable, or the Lessor, at its option, shall be entitled to declare
the Lease null and void.
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 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
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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.
(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
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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.
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.
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<PAGE> 14
SECTION 16
NOTICES
16.1 All notices, demands and requests required under this Lease
shall be in writing. All such notices, 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:
Vaughn/Taylor L.L.C.
c/o James M. Scott
57 Adams Avenue
Montgomery, AL 36104
and to Lessee at:
Montgomery Cablevision and Entertainment, Incorporated
1450 Ann Street
Montgomery, AL 36107
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 or 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.
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SECTION 18
EXISTING MORTGAGES
18.1 Lessor hereby certifies that the Premises are not 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.
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 to the best of its
knowledge, 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. Provided that, in the event that
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<PAGE> 16
Lessee determines that there exists an encumbrance on the Premises which will
prohibit Lessee's intended use of said Premises, Lessee may provide notice to
the Lessor and terminate the lease with no liability or obligation hereunder.
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. 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. This easement shall be as shown on the drawing attached to this
Lease. 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 otherwise use such access in an manner that
interferes with Lessee's use of the Premises. If said obstruction or
interference impairs Lessee's rights under this Lease, rent shall abate 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
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<PAGE> 17
exist or existed prior to or at the time of the execration of this Lease or
which may occur at any time in the future.
(b) Notwithstanding the obligation of Lessor to indemnify Lessee
pursuant to this Agreement, Lessor shall, upon demand of Lessee, and at Lessor's
sole cost and expense, promptly take all actions to remediate the Premises which
are required by any federal, state or local governmental agency or political
subdivision or which are reasonably necessary to mitigate environmental damages
pertaining to the Premises.
(c) Lessee, its heirs, grantees, successors, and assigns shall
indemnify, defend, reimburse and hold harmless Lessor 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 by reason of actions of the Lessee, its agents or employees.
(d) Notwithstanding the obligation of Lessee to indemnify Lessor
pursuant to this Agreement, Lessee shall, upon demand of Lessor, and at Lessee's
sole cost and expense, promptly take all actions to remediate the Premises which
are required by any federal, state or local governmental agency or political
subdivision or which are reasonably necessary to mitigate environmental damages
pertaining to the Premises caused by Lessee, its agents or employees.
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.
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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 eject 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 tile 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 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
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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 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.
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: VAUGHN / TAYLOR, L.L.C.
----------------------------------
By: /s/ [ILLEGIBLE SIGNATURE]
-------------------------------------
Its: Manager
-------------------------------------
LESSEE: MONTGOMERY CABLEVISION AND
ENTERTAINED INCORPORATED
By: /s/ Felix L. Boccucci
--------------------------------------
Its: CFO
-------------------------------------
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<PAGE> 20
STATE OF GEORGIA
COUNTY OF Troup
-------------------
On this 20th day of August, 1996, before me personally came Felix L.
Boccucci. Jr., to me known, who being by me duly sworn, did depose and say that
he is Felix L. Boccucci. Jr., the Chief Financial Officer of Montgomery
Cablevision and Entertainment, Incorporated, and that he signed his name to the
above instrument on behalf of Montgomery Cablevision, Inc.
/s/ Martha B. Quinton
------------------------------------------------
(Seal) NOTARY PUBLIC
My Commission Expires: Notary Public, Troup County,
Georgia
My Commission Expires March 23, 1998.
<PAGE> 21
Schedule "A"
[A map of the leased premises appears here]
<PAGE> 1
EXHIBIT 10.9
LEASE
THIS AGREEMENT, made as of the 20 day of August, 1996 by and between
W.M.H. McLemore, located at 7100 Atlanta Highway, Montgomery, Ala. 36117,
Alabama ("Lessor"), and Montgomery Cablevision and Entertainment Incorporated,
an Alabama corporation with its principal office located at 1450 Ann Street,
Montgomery, Alabama ("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, William H. McLemore, Jr. and Senior, James H. McLemore
and Samuel C. McLemore, 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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<PAGE> 11
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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<PAGE> 12
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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<PAGE> 13
(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.
13
<PAGE> 14
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:
7100 Atlanta Highway
Montgomery, Alabama 36117
and to Lessee at: .
Montgomery Cablevision and Entertainment, Incorporated
1450 Ann Street
Montgomery, AL 36107
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<PAGE> 15
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.
15
<PAGE> 16
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
16
<PAGE> 17
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 abate 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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<PAGE> 18
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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<PAGE> 19
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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<PAGE> 20
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/ William H. McLemore
----------------------------------
By:
--------------------------------------
Its:
-------------------------------------
LESSEE: MONTGOMERY CABLEVISION AND
ENTERTAINMENT, INCORPORATED
By: /s/ Felix L. Boccucci
--------------------------------------
Its: CFO
-------------------------------------
20
<PAGE> 21
STATE OF GEORGIA
COUNTY OF Troup
-----------------
On this 20th day of August, 1996, before me personally came Felix L.
Boccucci Jr., to me known, who being by me duly sworn, did depose and say that
he is Felix L. Boccucci. Jr., the Chief Financial Officer of Montgomery
Cablevision and Entertainment, Incorporated, and that he signed his name to the
above instrument on behalf of Montgomery Cablevision, Inc.
/s/ Martha B. Quinton
--------------------------------------------
(Seal) NOTARY PUBLIC
My Commission Expires: Notary Public, Troup
County, Georgia
My Commission Expires March 23, 1998
<PAGE> 22
SCHEDULE "A"
[A map of the leased premises appears here]
<PAGE> 1
EXHIBIT 10.10
RETURN RECORDED INSTRUMENT TO
Hatcher, Stubbs, Land, Hollis &
Rothschild
George W. Mize, Jr.
P.O. Box 2707
Columbus, GA 31902-2707
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered into this 7 day of
November, 1996, by and between SAMUEL B. HEWITT ("Lessor") and AMERICAN CABLE
COMPANY, INC. ("Lessee").
WHEREAS, Lessor owns certain real property located in Muscogee County,
Georgia being known as 1515 49th Street, and being more particularly described
on Exhibit "A", attached hereto (the Lessor's Property); and
WHEREAS, Lessee desires to lease from Lessor and Lessor desires to lease
to Lessee a portion of Lessor's Property for the hereinafter described
purposes.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee agree as
follows:
1. Property. Subject to the following terms and conditions,
Lessor leases to Lessee the property which is described in Exhibit "B" attached
hereto (the "Property").
2. Use. The Property may be used by Lessee to construct, operate
and maintain a building and facilities to house Lessee's equipment and other
property (the "Improvements"), including without limitation, fiber optic cable
and equipment for the purpose of transmitting and receiving various types of
communication, digital, electronic and/or other signals in any and all
frequencies; and to build, construct or do any other related facilities and
activities (the "Intended Use"). Lessor agrees to cooperate with Lessee in
obtaining, at Lessee's expanse, all licenses and permits required for Lessee's
use of the Property (the "Governmental Approvals"). Lessee represents and
warrants that the Intended Use will not adversely affect or interfere with
Lessor's current use of Lessor's Property.
3. Initial Term. The initial term of this Lease shall be five
(5) years, commencing on the earlier of the date that Lessee has completed
construction of the Improvements, or the 1st day of December, 1996
("Commencement Date") and terminating on the fifth anniversary of the
Commencement Date ("Initial Term").
4. Renewal Terms. Lessee shall have the right to extend this
Lease for four (4) additional five (5) year terms ("Renewal Terms"). Each
Renewal Term shall be on the same terms and conditions as set forth in this
Lease except that Rent shall increase as provided in Paragraph 5(c). This
Lease shall automatically be renewed for each successive Renewal Term unless
Lessee notifies Lessor of Lessee's intention not to renew the Lease at least 30
days prior to the expiration of the Initial Term or the Renewal Term which is
then in effect.
5. Consideration.
(a) Upon the Commencement Date, Lessee shall pay Lessor
the sum of Two Hundred and No/100 Dollars ($200.00) per month as rental
("Rent"). Rent shall be payable in advance to Lessor at Lessor's address as
specified in Paragraph 20 below, on the first day of each month during the
Initial Term or any Renewal Term beginning on the first day of the month
following the Commencement Date;
(b) If this Lease is terminated for any reason other than
Lessee's default, then all Rent paid in advance shall be prorated to the date
of termination and shall be refunded to Lessee;
(c) The Rent payable by Lessee during each successive
year of the Initial Term and any Renewal Term commencing on the first (1st) day
of the thirteenth (13th) month of the Initial Term, shall be adjusted at that
time and every twelve (12) months thereafter (the "Adjustment Month") for the
remainder of the Initial Term and any Renewal Term as follows: the monthly
installment of Rent for the immediately preceding twelve (12) month period
shall be increased by multiplying said amount times a fraction, the denominator
of which is the Consumer Price Index number, published by the U.S. Department
of Labor, Bureau of Labor Statistics in the Consumer Price Index for All Urban
Consumers - U.S. City Average, All Items (1982-84=100) (the "CPI"), for the
calendar month preceding the Commencement Date and the numerator of which is
the CPI number for the month preceding the Adjustment Month of each successive
12-month period for which the computation is made. If the CPI is discontinued,
then Lessor and Lessee shall mutually designate a comparable index to be used
in lieu thereof for the purposes hereof; and
(d) Lessee shall pay to Lessor on the Commencement Date a
prorated amount of the Rent for the period from the Commencement Date to the
end of the calendar month in which the Commencement Date occurs.
6. Lessor's Representations and Warranties. Lessor represents
and warrants that (i) the Intended Use is not prohibited by any covenants,
restrictions, reciprocal easements, servitudes, subdivision rules or
regulations; (ii) there are no easements, licenses, covenants, rights of use or
other encumbrances on the Property which will interfere with or constructively
prohibit the Intended Use; (iii) the Property is zoned C-3; (iv), the
execution, delivery and full performance of this Lease by Lessor does not
constitute a violation of any contract, judgment, decree, security deed or
other restriction of any kind of which Lessor is a party or of which Lessor is
bound; (v) Lessor has executed and entered into this Lease free from fraud,
undue influence, duress, coercion or any other defenses to the execution of
this Lease; and (vi) this Lease constitutes the valid binding obligation of
Lessor enforceable against Lessor in accordance with its terms.
7. Conditions Precedent. Lessee's obligation to perform under
this Lease shall be subject to and conditioned upon:
(a) Lessee securing appropriate approvals for the
Intended Use from any federal, state or local regulatory authority having
jurisdiction over the Intended Use;
(b) Lessee obtaining a title report or commitment for a
title policy which shows, in Lessee's opinion, no defects of title or any liens
or encumbrances which adversely affects the Intended Use or Lessee's ability to
obtain leasehold financing;
<PAGE> 2
(c) Lessee having the Property surveyed and soil borings
and analysis tests run which show, in the opinion of the Lessee, that the
Property is suited for the Intended Use;
(d) Lessee having an environmental audit of the Property
performed by an environmental consulting firm of Lessee's choice which reveals
that the Property is not contaminated with Hazardous Materials; and
(e) Lessee confirming that the Property is properly zoned
so as to allow the Intended Use. If the Property is not so zoned, then Lessee
shall have the option of rescinding this Lease and having no liability
hereunder or, at Lessee's expense, seek to amend the applicable zoning
ordinance or obtain the appropriate variance or exception so as to allow the
Intended Use. If Lessee elects to so amend or seek to obtain such variance or
exception, and the same is unsuccessful, the Lessee may rescind this Lease and
have no further liability hereunder.
If any of the above conditions are not satisfied, Lessee shall have no
obligations under this Lease and shall be entitled to restitution of any Rent
or other consideration which has been paid to Lessor.
8. Conditions Subsequent. In the event that the Intended Use is
actually or constructively prohibited through no fault of Lessee or the
Property is, in Lessee's opinion, unacceptable to Lessee then this Lease shall
terminate and be of no further force or effect and Lessee shall be entitled to
a refund from Lessor of any deposits or prorated Rent paid to Lessor prior to
the date upon which Lessee gives Lessor notice of its intent to terminate this
Lease pursuant to this Paragraph.
9. Interference. Lessor shall not use, nor shall Lessor permit
its lessees, licensees, invitees or agents to use any portion of adjacent real
property owned by Lessor in any way which interferes with the operations of
Lessee. Such interference shall be deemed a material breach of this Lease by
Lessor and Lessor shall have the responsibility to terminate said interference.
In the event any such interference does not cease or is not promptly rectified,
Lessor acknowledges that continuing interference will cause irreparable injury
to Lessee, and Lessee shall have the right, in addition to any other rights
that it may have at law or in equity, to bring action to enjoin such
interference or to terminate this Lease immediately upon notice to Lessor.
10. Improvements; Utilities; Access.
(a) Lessee shall have the right, at Lessee's sole cost
and expense, to erect and maintain the Improvements on the Property. The
Improvements shall remain the exclusive property of the Lessee, and Lessee
shall have the right but not the obligation to remove all or part of the
Improvements following any termination of this Lease. Upon the termination of
this Lease, Lessee may offer to sell to Lessor any portion of the Improvements
at a mutually acceptable price.
(b) Lessor hereby grants to Lessee the right and easement
to install utilities, at Lessee's expense, improve present utilities on the
Property (including hut not limited to the installation of emergency power
generators), and to permanently place utilities on (or to bring utilities
across or under) the Lessor's Property to service the Property and the
Improvements. Lessor shall, upon Lessee's request, execute a separate written
easement to the utility company providing the service or Lessee in a form which
may be filed of record evidencing this right.
(c) Lessor hereby grants to Lessee and Lessee's
successors, sublessees and assigns at all times during the Initial Term and any
Renewal Term, the nonexclusive right and easement of ingress, egress, and
access from the Property across the Lessor's Property to an open and improved
public road which presently exists (the Basements) which Easement shall be
adequate to service the Property and the Improvements. If no such public road
exists or ceases to exist in the future, Lessor will grant an appropriate
easement to Lessee, Lessee's successors, sublessees and assigns so that Lessee
may, at its own expense, construct a suitable private access drive to the
Property and the Improvements. This Paragraph grants and is evidence of the
granting of an Easement for ingress, egress and access, however, Lessor agrees,
upon Lessee's request, that Lessor shall execute an easement evidencing this
right. Lessor shall maintain access to the Easement in a free and open
condition so that no interference is caused to Lessee by other lessees,
licensees, invitees or agents of the Lessor which may utilize the Easement.
11. Termination. Except as otherwise provided herein, this Lease
may be terminated, without any penalty or further liability, upon written
notice as follows:
(a) By either party upon a default of any covenant or
term hereof by the other party which default is not cured within 60 days of
receipt of written notice of default (without, however, limiting any other
rights available to the parties pursuant to any other provisions hereof);
provided, that if the defaulting party commences good faith efforts to cure the
default within such period and diligently pursues to completion such cure, the
non-defaulting party shall no longer be entitled to declare a default;
(b) Upon 30 days' written notice by Lessee to Lessor if
Lessee is unable to obtain or maintain through no fault of Lessee any license,
permit or other Governmental Approval necessary to the construction and
operation of the Improvements or Lessee's business; or
(c) By Lessee for any reason or no reason at all upon six
(6) months advance written notice from Lessee to Lessor.
12. Assignment; Subleases. Lessee at its sole discretion shall
have the right to assign its interest in this Lease or to sublease the Property
and space in or on the Improvements to others who would use the Property for
the Intended Use. Lessee's sublessee(s) and assignee(s) shall be subject to
the terms hereof and entitled to rights provided herein as if said sublessee or
assignee were the Lessee under this Lease.
13. Taxes. Lessee shall pay any personal property taxes assessed
on, or any portion of such taxes directly attributable to, the Improvements.
Lessor shall pay when due all real and other personal property taxes and all
other fees and assessments attributable to the Property. Lessee shall pay as
additional Rent any increase in real property taxes levied against the Property
which are directly attributable to the Improvements or Lessee's use of the
Property and Lessor agrees to furnish proof of such increase to Lessee.
<PAGE> 3
14. Destruction of Premises. If the Property or the Improvements
are destroyed or damaged so as to hinder the effective use of the Improvements
in Lessee's judgment, Lessee may elect to terminate this Lease as of the date
of the damage or destruction by so notifying the Lessor. In such event, all
rights and obligations of Lessee to Lessor shall cease as of the date of the
damage or destruction and Lessee shall be entitled to the reimbursement of any
Rent prepaid by Lessee.
15. Condemnation. If a condemning authority takes all of the
Property, or a portion sufficient in Lessee's determination, to render the
Property in the opinion of Lessee unsuitable for the use which Lessee was then
making of the Property, this Lease shall terminate as of the date the title
vests in the condemning authority. Lessor and Lessee shall share in the
condemnation proceeds in proportion to the values of their respective interests
in the Property (which for Lessee shall include, where applicable, the value of
its Improvements, moving expenses, prepaid rent and business dislocation
expenses). A sale of all or part of the Property to a purchaser with the power
of eminent domain in the face of the exercise of eminent domain power shall be
treated as a taking by condemnation for the purposes of this Paragraph.
16. Hold Harmless. Lessee agrees to hold Lessor harmless from any
and all claims arising from the installation, use, maintenance, repair or
removal of the Improvements, except for claims arising from the negligence or
intentional acts of Lessor, and Lessor's employees, agents or independent
contractors.
17. Environmental Compliance. Lessor warrants and represents that
the Property, the Easement and the improvements thereon are free of
contaminants, oils, asbestos, radon, PCB's, hazardous substances or wastes as
defined by federal, state or local environmental laws, regulations or
administrative orders or other materials the removal of which is required or
the maintenance of which is prohibited, regulated or penalized by any federal,
state or local government authority ("Hazardous Materials"). Lessee may have
an environmental audit of the Property performed and if the audit reveals that
the Property is not free of Hazardous Materials, Lessee shall not be obligated
to take possession of the Property under this Lease. This Lease shall be void
and of no further force or effect if Hazardous Materials are discovered to
exist on the Property after Lessee takes possession of the Property and Lessee
shall be entitled to a refund of all the consideration given Lessor under this
Lease.
18. Environmental Indemnities.
(a) Lessor, Lessor's heirs, grantees, successors, and
assigns shall indemnify, defend, reimburse and hold harmless Lessee from and
against any and all environmental damages arising from the presence of
Hazardous Materials upon, about or beneath the Property or migrating to or from
the Property or arising in any manner whatsoever out of the violation of any
environmental requirements pertaining to the Property and any activities
thereon, which conditions exist or existed prior to or at the time of the
execution of this Lease or which may occur at any time in the future by the
actions of Lessor.
(b) Notwithstanding the obligation of Lessor to indemnify
Lessee pursuant to this agreement, Lessor shall, upon demand of Lessee, and at
Lessor's sole cost and expense, promptly take all actions to remediate the
Property which are required by any federal, state or local governmental agency
or political subdivision or which are reasonably necessary to mitigate
environmental damages or to allow full economic use of the Property, which
remediation is necessitated from the presence upon, about or beneath the
Property of a Hazardous Material. Such actions shall include but not be
limited to the investigation of the environmental condition of the Property,
the preparation of any feasibility studies, reports or remedial plans, and the
performance of any cleanup, remediation, containment, operation, maintenance,
monitoring or actions necessary to restore the Property to the condition
existing prior to the introduction of Hazardous Material upon, about or beneath
the Property notwithstanding any lesser standard of remediation allowable under
applicable law or governmental policies.
19. Right of First Refusal. During the Initial Team and any
Renewal Terms of this Lease, Lessor shall, prior to selling the Property or any
real property of which the Property is a part, notify Lessee in writing of the
sales price and terms offered by a third party, together with a copy of the
third party's offer. Lessee shall have the right of first refusal to purchase
the real property being sold by Lessor on the same terms and conditions (or
cash equivalent terms, if a property exchange is proposed), or only the
Property the purchase price of which shall be determined by multiplying the
purchase price for the entire property by a fraction the numerator of which
shall be the area of the Property and the denominator of which shall be the
total area of the real property to be sold by Lessor. Lessee shall give Lessor
notice of its intention to purchase the same within 30 days of receipt of
Lessor's notice. If Lessee gives no such notice of its intention to purchase
the real property, Lessor may sell the real property to the third party on the
stated terms and price, as long as such sale is made subject to the terms of
this Lease. Notwithstanding the foregoing, Lessee shall not have such right of
first refusal in those instances which Lessor is an individual and Lessor
proposes to convey the real property to another member of Lessor's family;
however, any such property (including the Property) shall be conveyed by Lessor
subject to this Lease.
20. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed given if
personally delivered or mailed, certified mail, return receipt requested, to
the following addresses:
If to Lessor, to: Samuel B. Hewitt
P.O. Box 4196
Columbus, GA 31904
If to Lessee, to: American Cable Company, Inc.
Post Office Box 8289
Columbus, GA 31908
Attention: General Manager
with a copy to: CyberNet Holding, Inc.
1239 O.G. Skinner Drive
Post Office Box 510
West Point, Georgia 31833
Attention: President
21. Title and Quiet Enjoyment. Lessor warrants that (i) Lessor
has the full right, power, and authority to execute this Lease; (ii) Lessor has
good and marketable title to the Property and the Easement free and clear of
any liens encumbrances or mortgages; and (iii)
<PAGE> 4
the Property constitutes a legal lot that may be leased without the need for
any subdivision or platting approval. Lessor further warrants that Lessee
shall have the quiet enjoyment of the Property during the term of this Lease.
22. Leasehold Financing. Lessee may mortgage or grant a security
interest in this Lease and the Improvements, and may assign this Lease and the
Improvements to any such mortgagees or holders of security interests including
their successors and assigns (hereinafter collectively referred to as
"Mortgagees"). In such event, Lessor shall execute such consent to leasehold
financing, as may reasonably be required by Mortgagees and a subordination to
such Mortgagees with respect to the Improvements. Lessor agrees to notify
Lessee and Lessee's Mortgagees simultaneously of any default by Lessee and to
give Mortgagees the same right to cure any default as Lessee except that the
cure period for any Mortgagee shall not be less than 10 days after the receipt
of the default notice.
23. Successors and Assigns. This Lease shall run with the
Property and shall be binding upon and inure to the benefit of the parties,
their respective heirs, successors, personal representatives and assigns.
24. Waiver of Lessor's Lien. Lessor hereby waives any and all
lien rights it may have, statutory or otherwise, in and to the Improvements or
any portion thereof, regardless of whether or not the same is deemed real or
personal property under applicable laws.
25. Miscellaneous.
(a) The substantially prevailing party in any litigation
arising hereunder shall be entitled to its reasonable attorney's fees and court
costs, including appeals, if any.
(b) Each party agrees to furnish to the other, within 10
days after request, such truthful estoppel information as the other may
reasonably request.
(c) This Lease constitutes the entire agreement and
understanding of Lessor and Lessee, and supersedes all offers, negotiations and
other agreements. There are no representations or understandings of any kind
not set forth herein. Any amendments to said Lease must be in writing and
executed by Lessor and Lessee.
(d) If either Lessor or Lessee is represented by a real
estate broker in this transaction, that party shall be fully responsible for
any fees due such broker and shall hold the other party harmless from any
claims for commission by such broker.
(e) Lessor agrees to cooperate with Lessee in executing
any documents necessary to protect Lessee's rights under this Lease or Lessee's
use of the Property and to take any further action which Lessee may reasonably
require as to effect the intent of this Lease.
(f) This Lease shall be construed in accordance with the
laws of the state in which the Property is situated.
(g) If any term of this Lease is found to be void or
invalid, such invalidity shall not affect the remaining terms of this Lease,
which shall continue in full force and effect.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease under seal
as of the date first written above.
LESSOR:
/s/ Samuel B. Hewitt (SEAL)
------------------------------
Samuel B. Hewitt
Signed, sealed and delivered this 7 day
--------------
of November , 1996, in the presence of:
--------------------------
/s/ Tammy Winchester /s/ Sue Cargill
- ----------------------------- ----------------------
Witness Witness
- -----------------------------
Notary Public, Muscogee County, Georgia
My Commission Expires: My Commission Expires August 26, 2000
--------------------------------------
[SEAL]
LESSEE:
AMERICAN CABLE COMPANY, INC.
By: /s/ Felix L. Boccucci Jr.
---------------------------------
Title: Chief Financial Officer
------------------------------
Signed, sealed and delivered this 5th day
--------------
of November , 1996, in the presence of:
--------------------------
/s/ Martha B. Quinton
- -----------------------------
Witness
/s/ Marie C. Bailey
- -----------------------------
Notary Public Muscogee County, Georgia
My Commission Expires: Notary Public, Troup County, Georgia
---------------------------------------
My Commission Expires March 23, 1998
---------------------------------------
[SEAL]
<PAGE> 5
EXHIBIT "A"
LEGAL DESCRIPTION OF
LESSOR'S PROPERTY
All that tract or parcel of land situate, lying and being in the City of
Columbus, Muscogee County, Georgia, and being known and designated as PART OF
LOT NUMBERED FIFTEEN (15) in BLOCK LETTERED "C" of ARGALYN MANOR SUBDIVISION as
said Lot appears upon a map or plat of said Subdivision recorded in the Office
of the Clerk of the Superior Court of Muscogee County, Georgia, in Plat Book
10, Page 27, said part of said lot hereby conveyed being more particularly
described as follows:
COMMENCING at an iron stake located on the northerly side of 49th Street 162.7
feet easterly (as measured along the northerly side of 49th Street) of an iron
located where the easterly side of Hamilton Road intersects the northerly side
of 49th Street and from said Beginning Point, running thence northeasterly
along the westerly boundary line of said Lot 15 a distance of 43.57 feet to an
iron stake located at the southwesterly corner of Lot 1 of said Block and
Subdivision; running thence North 87 degrees 34 minutes East along the dividing
line between said Lots 1 and 15 of said Block and Subdivision a distance of
117.22 feet to an iron stake; thence South 02 degrees 26 minutes East through
said Lot 15 a distance of 39.98 feet to an iron located on the northerly side
of 49th Street; running thence South 87 degrees 29 minutes West along the
northerly side of 49th Street a distance of 134 feet to the Point of Beginning
and being the property upon which is located building numbered 1515 49th
Street, according to the present system of numbering buildings in the City of
Columbus, Georgia, and being the identical property conveyed to Climactic
Contracting Company by W. H. Raymond, Jr. by Warranty Deed dated January 7,
1966, and recorded in said Clerk's Office in Deed Book 1049, Page 119, and the
identical property conveyed by Climactic Contracting Company to Royce W.
Hopkins by Warranty Deed dated September 30,1966, and filed for record in said
Clerk's Office on February 22, 1968, and recorded in Deed Book 1161, Page 51,
of said Clerk's Office.
****************************************************
EXHIBIT "B"
LEGAL DESCRIPTION OF
THE PROPERTY
All that tract, lot or parcel of land lying and being in Land Lot 67, 8th
District, Columbus, Muscogee County, Georgia, and being more particularly
described as follows:
To reach the POINT OF BEGINNING of the property herein described, commence at
an iron stake located at the northeast corner of the intersection of 49th
Street and Hamilton Road, public roads located in said State and County, thence
running along the northern margin of 49th Street North 87 degrees 29' East a
distance of 179.70 feet to a point located on the northern margin of 49th
Street; running thence North 02 degrees 31' West a distance of 10 feet to a
point, which point marks the POINT OF BEGINNING of the property herein
described; thence running North 02 degrees 31' West a distance of 15.0 feet to
a point; running thence North 87 degrees 29' East a distance of 15.0 feet to a
point; running thence South 02 degrees 31' East a distance of 15.0 feet to a
point; running thence South 87 degrees 29' West a distance of 15.0 feet to the
POINT OF BEGINNING of the property herein described.
This property is also shown on a map or plat of said property entitled Easement
Survey Lot 15, Block "C" ARGALYN MANOR, Lying in Land Lot 67, 8th District,
Columbus, Muscogee County, Georgia dated August 19, 1996 prepared by Moon,
Meeks, Mason & Vinson, Inc.
<PAGE> 1
EXHIBIT 10.11
SITE AGREEMENT
SITE NAME HUB D SITE I.D.
----------------------------------------------------------
SITE ADDRESS LOT 1, STRATHMORE DRIVE, STONEBRIDGE
-------------------------------------------------------
COMMERCIAL PLAT-1, LYING IN THE SE 1/4 OF SECTION 34,
- -------------------------------------------------------------------
T16N, R18E, MONTGOMERY COUNTY, AL.
- -------------------------------------------------------------------
1. PREMISES AND USE. Owner leases to Montgomery Cablevision and
Entertainment, Inc. ("Cablevision"), the site ("Site") described below:
[Check appropriate box(es)]
/X/ Real property consisting of approximately 400 square feet of land;
/ / Building interior space consisting of approximately _____ square feet;
/ / Building exterior space for attachment of antennas;
/ / Building exterior space for placement of base station equipment;
/ / Tower antenna space;
/ / Space required for cable runs to connect equipment and antennas, in the
location(s) ("Site") shown on Exhibit A;
together with a non-exclusive easement for reasonable access thereto and to the
appropriate, in the discretion of Cablevision, source of electric, gas and
telephone facilities. (Without limiting the forgoing, and if provided for by
exhibit to this agreement, the Owner also provides a non-exclusive easement for
access and connection to Owner's emergency power generator at the Site to be
used by Cablevision in the case of a power outage.)
Cablevision is leasing the property for the purpose of installing, removing,
replacing, maintaining and operating, at its expense, a fiber optics cable
system facility, or other signal transmission device or technology, including,
without limitation, related antenna equipment and fixtures, underground or
aerial cables, pole placements or attachments. Owner represents that the
proposed use of this Site by Cablevision will not violate any exclusive or other
agreement which Owner may have given or to which Owner is a party.
2. TERM. The term of this Agreement (the "Initial Term") shall commence on
the date Cablevision signs this Agreement, or if Cablevision signs first, the
date Owner signs this Agreement. The Initial Term shall be the period of time
from that date to the 5th anniversary of the Rent Start Date. This Agreement
will be automatically renewed for three additional terms (each a "Renewal Term")
of five years each commencing on each five year anniversary of the Rent Start
Date, unless Cablevision provides Owner notice of intention not to renew not
less than 90 days prior to the expiration of the Initial Term or any Renewal
Term.
3. RENT. Rent will commence on the Rent Start Date. Rent will be paid
annually in advance beginning on the Rent Start Date and on each anniversary of
it. The Rent Start Date shall be the earlier of (a) the date which is thirty
(30) days after the issuance of a building permit for installation of the
facilities, or (b) the first day of the month following commencement of physical
preparation of the Site. The annual rent will be $3,600.00. The annual rent for
each Renewal Term will be the annual rent in effect for the final year of the
Initial Term or prior Renewal Term, as the case may be, increased by ten percent
(10%). Cablevision will also provide expanded basic cable service, whenever
premises becomes a serviceable address, to current tenant of Owner on a
commercial account for so long as said tenant remains in possession. Owner shall
pay John W. Stowers, Jr., a 10% commission per month during the term of the
lease, inclusive of renewals and extensions.
4. TITLE AND QUIET POSSESSION. Owner represents and agrees (a) that it is the
Owner of the Site; (b) that it has the right to enter into this Agreement; (c)
that the person signing this Agreement has the authority to sign; (d) that
Cablevision is entitled to access to the Site at all times and to the quiet
possession of the Site throughout the Initial Term and each Renewal Term so long
as Cablevision is not in default beyond the expiration of any cure period; and
(e) that Owner shall not have, or allow others to have, unsupervised access to
the Site or to the equipment.
5. ASSIGNMENT/SUBLETTING. Cablevision will not assign or transfer this
Agreement without the prior written consent of Owner, which consent will not be
unreasonably withheld, delayed or conditioned; provided, however, Cablevision
may assign without Owner's prior written consent to: (1) any party controlling,
controlled by or under common control with Cablevision; or (2) any party which
acquires rights to Cablevision's FCC operating licenses or franchises or
substantially all of the assets of Cablevision; or (3) a financial institution
for purposes of securing indebtedness related to Cablevision's communications
system. Cablevision may sublet the Site but shall remain fully liable to Owner
under this Agreement.
6. NOTICES. All notices must be in writing and are effective when
deposited in the U.S. mail, certified and postage prepaid, or when sent via
overnight delivery, to the address set forth below, or as otherwise provided by
law.
7. IMPROVEMENTS. Cablevision may, at its expense, make such improvements on
the Site as it deems necessary from time to time for the operation of a node
site for its fiber optic cable system. Owner agrees to cooperate with
Cablevision with respect to obtaining any required easements, variances, zoning
approvals and other authorizations for the Site and such improvements. Upon
termination or expiration of this Agreement, Cablevision will remove all
improvements to the property on the surface and down to three feet below the
surface, except for ordinary wear and tear. Upon request, Owner will waive or
otherwise subordinate any lien rights it might have in order to facilitate
Cablevision's financing of the said improvements and will execute such documents
as may be reasonably necessary so to do.
8. COMPLIANCE WITH LAWS. Owner represents that Owner's property (including
the Site), and all improvements located
<PAGE> 2
thereon, are in substantial compliance with building, life/safety, disability
and other laws, codes and regulations of applicable governmental authorities.
Cablevision will substantially comply with all applicable laws relating to its
possession and use of the Site.
9. INTERFERENCE. Cablevision will resolve technical interference problems
with other equipment located at the Site on the commencement of this Agreement
or any equipment that becomes attached to the Site at any future date when
Cablevision desires to add additional equipment to the Site. Likewise, Owner
will not permit the installation of any future equipment, upgrades or
enhancements by others which results in technical interference problems with
Cablevision's then existing equipment.
10. UTILITIES. Owner represents that utilities adequate for Cablevision's use
of the Site are available. Cablevision will pay for all utilities used by it at
the Site. Owner will cooperate with Cablevision in Cablevision's efforts to
obtain utilities for the Site.
11. TERMINATION. Cablevision may terminate this Agreement at any time by
notice to Owner without further liability, if Cablevision does not obtain all
permits or other approvals (collectively, "approval") required from any
governmental authority or any easements required from any third party to operate
its system, or if any such approval is canceled, expires or is withdrawn or
terminated, or if Owner fails to have proper ownership of, or appropriately
clear title to the Site or authority to enter in this Agreement. Owner will
cooperate with Cablevision in obtaining any necessary approval. Upon
termination, all prepaid rent shall be retained by Owner, however Cablevision
will be relieved of all other obligations under the lease.
12. DEFAULT. If either party is in default under this Agreement for a period
of (a) ten (10) days following receipt of notice from the non-defaulting party
with respect to a default which may be cured solely by the payment of money, or
(b) thirty (30) days following receipt of notice from the non-defaulting party
with respect to a default which may not be cured solely by the payment of money,
then, in either event, the non-defaulting party may pursue any remedies
available to it against the defaulting party under applicable law, including,
but not limited to, the right to terminate this Agreement. If the non-monetary
default may not reasonably be cured within a thirty (30) day period, this
Agreement may not be terminated if the defaulting party commences action to cure
the default within such thirty (30) day period and proceeds with due diligence
to fully cure the default.
13. INDEMNITY. Owner and Cablevision each indemnifies the other against and
holds the other harmless from any and all costs (including reasonable attorneys
fees) and claims of liability or loss which arise out of the use and/or
occupancy of the Site by the indemnifying party. This indemnity does not apply
to any claims arising from the sole negligence or intentional misconduct of the
Indemnified party.
14. HAZARDOUS SUBSTANCES. Owner represents that it has no knowledge of any
substance, chemical or waste (collectively, "substance") on the Site that is
identified as hazardous, toxic or dangerous in any applicable federal, state or
local law or regulation. Cablevision shall not introduce or use any such
substances on the Site in violation of any applicable law.
15. MISCELLANEOUS. (a) This Agreement applies to and binds the heirs,
successors, executors, administrators and assigns of the parties to this
Agreement; (b) This Agreement is governed by the laws of the State in which the
Site is located; (c) Owner agrees promptly to execute and deliver to Cablevision
a recordable Memorandum of this Agreement in the form of Exhibit B; (d) This
Agreement (including the Exhibits) constitutes the entire Agreement between the
parties and supersedes all prior written and verbal agreements, representations,
promises or understandings between the parties. Any amendments to this Agreement
must be in writing and executed by both parties; (e) If any provision of this
Agreement is invalid or unenforceable with respect to any party, the remainder
of this Agreement or the application of such provision to persons other than
those as to whom it is held invalid or unenforceable, will not be affected and
each provision of this Agreement will be valid and enforceable to the fullest
extent permitted by law; and (f) The prevailing party in any action or
proceeding in court or mutually agreed upon arbitration proceeding to enforce
the terms of this Agreement is entitled to receive its reasonable attorneys'
fees and other reasonable enforcement costs and expenses from the non-prevailing
party.
The following Exhibits are attached to and made a part of this
Agreement: Exhibit A, B, & C.
OWNER: JOHN WALTER STOWERS
---------------------------------------------------
By: /s/ John Walter Stowers
------------------------------------------------------
Its: Owner
-----------------------------------------------------
S.S./Tax No.: ###-##-####
--------------------------------------------
Address: P.O. Box 2449 Mtg. AL 36102
-------------------------------------------------
Date: 11/19/96
----------------------------------------------------
MONTGOMERY CABLEVISION AND ENTERTAINMENT, INC.
By: /s/ Felix L. Boccucci, Jr.
------------------------------------------------------
Its: Chief Financial Officer
-----------------------------------------------------
Address: 1450 Ann Street, Montgomery, AL 36106.
Witness: /s/ Taylor E. Nipper
-------------------------------------------------
Witness: /s/ [ILLEGIBLE SIGNATURE]
-------------------------------------------------
THIS DOCUMENT PREPARED BY: MARK D. WILKERSON, BRANTLEY & WILKERSON, P.C., P.O.
BOX 830, MONTGOMERY, AL. 36101-0830, (334) 265-1500.
<PAGE> 3
THE STATE OF ALABAMA )
)
___________ COUNTY )
I, SYBIL HAUGHERY, a AT LARGE in and for said County in said State,
hereby certify that FELIX BOCCUCCI, JR., whose name as Chief Fin Officer of
Montgomery Cablevision and Entertainment, Inc., an Alabama Corporation, is
signed to the foregoing conveyance and who is known to me, acknowledged before
me on this day that, being informed of the contents of the conveyance, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said Corporation.
Given under my hand this the 25th day of October, 1996.
(AFFIX NOTARIAL SEAL) /s/ Sybil Haughery
-----------------------------
NOTARY PUBLIC
My Commission Expires:
My Commission Expires Jan. 4, 1997
- ----------------------------------
Alabama...Cablevision
<PAGE> 4
THE STATE OF AL )
------------- )
Montgomery COUNTY )
- ----------
I, John W. Stowers, Jr., a notary hereby certify that John Stowers
Sr., whose name is signed to the foregoing conveyance, and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
conveyance, he executed the same voluntarily on the day the same bears date.
Given under my hand this 19 day of Nov, A.D. 1996.
(AFFIX NOTARIAL SEAL) /s/ John W. Stowers Jr.
-----------------------------
NOTARY PUBLIC
My Commission Expires:
11/97
- ----------------------------
Alabama...Use if Owner is Individual
<PAGE> 5
EXHIBIT A
Site Name: HUB D Site Agreement Site I.D.:________.
Site Description
Site situated in the City of: Montgomery County of: Montgomery
----------------- ---------------
State of: Alabama
-----------
commonly described as:
Lot 1, Strathmore Drive, as shown in Stonebridge Commercial Plat-1,
lying in the SE 1/4 of the Section 34, T16N, R18E, Montgomery County, AL
Sketch of Site:
Owners Initials /s/ JWS
------------------
Cablevision's Initials /s/ FLB
-----------
Note: Owner and Cablevision may, at Cablevision's option, replace this Exhibit
with an exhibit setting forth the legal description of the property on which the
Site is located and/or an as-built drawing depicting the Site.
<PAGE> 6
This instrument prepared by:
Mark D. Wilkerson, Esq.
Brantley & Wilkerson, P.C.
405 South Hull Street
Post Office Box 830
Montgomery, AL 36101-0830
(334) 265-1500
PLEASE RETURN THIS INSTRUMENT TO THE ABOVE ADDRESS
Do not write above this line - this space reserved for recording purposes
- --------------------------------------------------------------------------------
EXHIBIT B
Site Name: HUB D Site I.D.:_______.
SITE AGREEMENT
SHORT FORM LEASE AND MEMORANDUM OF AGREEMENT
This memorandum evidences that a lease was made and entered into by written Site
Agreement dated 11/19, 1996, between John Walter Stowers ("Owner"), whose
address is P.O. Box 2449 Mtg. AL 36102 and Montgomery Cablevision and
Entertainment, Inc. ("Cablevision"), whose address is 1450 Ann Street,
Montgomery, AL 36106, the terms and conditions of which are incorporated herein
by reference.
Such Agreement provides in part that Owner leases to Cablevision a certain site
located at Lot 1, Strathmore Drive in Stonebridge Commercial Plat-1, City of
Montgomery, County of Montgomery, State of Alabama within the property of
Owner which is described in Exhibit "A" attached hereto, with grant of easement
for unrestricted rights of access thereto and to electric and telephone
facilities for a term of five (5) years commencing on 11/19, 1996, which term
is subject to three (3) additional five (5) year periods by Cablevision.
Not later than thirty (30) days following the cancellation, termination or
expiration of the Agreement, Cablevision will make, execute and deliver to owner
an instrument, in form, releasing this memorandum of Site Agreement.
IN WITNESS WHEREOF, the parties have executed the Memorandum as of the day and
year first above written. Signed, sealed and delivered in the presence of:
OWNER: John Walter Stowers
------------------------------
By: /s/ John Walter Stowers
------------------------------
Its: Owner
--------------------------------
S.S./Tax No.: ###-##-####
-----------------------
Address: P.O. Box 2449
----------------------------
Montgomery, AL 36102
----------------------------
Date: 11/19/96
-------------------------------
MONTGOMERY CABLEVISION AND ENTERTAINMENT, INC.
By: /s/ Felix L. Boccucci Jr.
---------------------------------
Its: Chief Financial Officer
--------------------------------
Address: 1450 Ann Street
Montgomery, AL 36106.
<PAGE> 7
EXHIBIT C
Site Name: HUB D SITE AGREEMENT Site I.D.:_____.
------------
SUBORDINATION AND NON-DISTURBANCE
The foregoing Agreement is subordinate to any mortgage or deed of trust now of
record against the Site. However, promptly after the Agreement is fully
executed, Owner will request the holder of any such mortgage or deed of trust to
execute a non-disturbance agreement, and Owner will cooperate with Montgomery
Cablevision and Entertainment, Inc., ("Montgomery Cablevision"), its successor
and assigns, toward such end to the extent that such cooperation does not cause
Owner additional financial liability or administrative expense.
THE OBTAINING OF A NON-DISTURBANCE AGREEMENT IS A MATERIAL INDUCEMENT TO
MONTGOMERY CABLEVISION MAKING, EXECUTING AND DELIVERING THIS AGREEMENT.
CONSEQUENTLY, IF OWNER IS UNABLE TO OBTAIN FROM THE HOLDER OF ANY SUCH MORTGAGE
OR DEED OF TRUST A NON-DISTURBANCE AGREEMENT ON OR BEFORE THE EARLIER OF (i) 90
DAYS AFTER OWNER EXECUTES THIS AGREEMENT OR (ii) THE ISSUANCE OF THE BUILDING
PERMIT FOR INSTALLATION OF THE CABLE OR (iii) UNLESS OTHERWISE SPECIFIED IN
WRITING BY MONTGOMERY CABLEVISION, MONTGOMERY CABLEVISION MAY TERMINATE THIS
AGREEMENT BY NOTICE TO OWNER WITHOUT FURTHER LIABILITY.
Owners Initials /s/ JWS
-------------
Cablevision's Initials /s/ FLB
-------------
<PAGE> 8
Addendum to lease agreement, between John Walter Stowers, Leassor, and
Montgomery CableVision & Entertainment, Inc. Leasee, made on the 19th day of
November, 1996, for property located at Lot 1, Strathmore Drive, Stonebridge
Commercial Plat-1, lying in the SE 1/4 of Section 34, T16N, R18E, Montgomery
County, Al.
A 10 foot utility easement shall hereby be granted by leassor to leasee along
property lines as noted on Lucido & Oliver plat referencing above described
property.
By: /s/ John Walter Stowers
---------------------------------------------
Its: Owner
--------------------------------------------
- ------------------------------------------------
Date: 11/19/96
-------------------------------------------
MONTGOMERY CABLEVISION and ENTERTAINMENT, INC.
By: /s/ Felix L. Boccucci Jr.
---------------------------------------------
Its: CFO
--------------------------------------------
Address: 1450 Ann Street, Montgomery, Al. 36106
----------------------------------------
Witness: /s/ [ILLEGIBLE SIGNATURE]
----------------------------------------
Witness: /s/
----------------------------------------
Notary Public:
----------------------------------
<PAGE> 1
EXHIBIT 10.12
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") is entered into this 15th day of February,
1997 by and between SCOTT P. PINCKARD ("Lessor") and CYBERNET ("Lessee").
WHEREAS, Lessor is the owner of certain real property and improvements located
thereon as are hereinafter defined; and
WHEREAS, Lessee desires to lease a portion of the real property and improvements
from Lessor.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises set forth herein, Lessor and Lessee agree as follows:
1. PREMISES. Lessor hereby leases unto Lessee certain office space consisting of
one thousand four hundred forty four (1444) square feet ("Premises"), more or
less, of office space located in the second floor of a building located at 503
West 8th Street, in the City of West Point, County of Troup, State of Georgia.
2. TERM. The Initial term of the Lease shall be for twelve (12) months
commencing on the 14th day of February, 1997 ("Commencement Date") and
terminating on the 14th day of February, 1998 ("Term").
3. RENTAL. Beginning on the Commencement Date Lessee shall pay to Lessor the sum
of Three Hundred Forty Five and No/100 Dollars ($345.00), for the month of
February, 1997. Beginning on March 1, 1997, and on the first day of each
calendar month thereafter the sum of Six Hundred Ninety and No/100 Dollars
($690.00) as rental for the Premises. The rent is due on the first day of each
calendar month, in the event that rent remains unpaid by the tenth (10th) day
after any such payment is due, Lessee shall then pay Lessor a late fee of five
percent (5%) of those sums which remain due to Lessor. If rent remains unpaid by
the fifteenth (15th) day an additional five percent (5%) for a total of ten
percent (10%) of the sum that is due to Lessor. This Lease shall automatically
renew for an additional period of one year per renewal term on the same terms as
this Lease, unless either party gives written notice of the end by sixty (60)
days before the end of the term or renewal term.
4. USE OF PREMISES. Lessee shall have the right to use and occupy the Premises
for general business and administrative offices.
5. QUIET ENJOYMENT. Lessor warrants that Lessor has good and marketable title to
the Premises free and clear of all liens and encumbrances and that Lessor may
rightfully enter into this Lease. Lessor shall protect, defend and indemnify
Lessee against any interference with Lessee's use and quiet enjoyment of the
Premises.
6. TAXES. Lessor shall be responsible for the payment of all taxes assessed on
the Premises.
<PAGE> 2
6. TAXES. Lessor shall be responsible for the payment of all taxes assessed on
the Premises during the Term. Lessee shall be responsible for the payment of all
taxes assessed upon any personal property owned by Lessee located on the
Premises.
7. INSURANCE.
(a) LIABILITY INSURANCE. Lessee and Lessor shall each separately maintain at all
times during the Term and keep in force for their mutual benefit, general public
liability insurance against claims for personal injury, death or property damage
occurring about the Premises or sidewalks or areas adjacent to the Premises to
afford protection to the limit of not less than $500,000 in respect to injury or
death of a single person, to a limit of not less than $1,000,000 in respect to
any one accident, and to the limit of $100,000 in respect to property damage.
Such insurance may be covered under a blanket policy covering the Premises and
other location of Lessee or its general partner or the general partner's parent
or an affiliate corporation. Certificates of all policies of insurance shall be
delivered to the party requesting the certificates or parties designated by the
party requesting the certificates upon written request.
(b) FIRE AND CASUALTY INSURANCE. Lessor shall also maintain, throughout the Term
of this Lease, at its sole cost and expense, a standard fire and extended
coverage casualty insurance policy insuring the Building and other improvements
which are located upon the Premises in an amount not less than their full
replacement value. However, Lessee at its sole cost and expense will carry
contents coverage on all personal property that are located upon the Premises.
(c) WAIVER OF SUBROGATION. Both Lessee and Lessor agree to seek a waiver of
subrogation clause from their respective insurer which establishes a waiver of
the insurer's subrogation against Lessor or Lessee as the case may be for any
property loss (real/personal property or improvements/betterment) caused by the
other. Any policy or policies of insurance procured by Lessor or Lessee,
covering direct or indirect property loss, shall include a waiver of subrogation
clause in favor of the other party.
8. UTILITIES. Lessor shall provide to the Premises connections for all utilities
necessary for Lessee's conducting of its business therein at Lessor's sole coast
and expense and shall pay for all electricity and water used or consumed by
Lessee on the Premises. Lessee shall pay for all telephone service used or
consumed by Lessee in or on the Premises. Should Lessor separately provide any
of the utilities to the Premises, a separate meter shall be installed at
Lessor's expense to measure Lessee's use of such utilities. Lessor's charge for
any utilities furnished directly by Lessor shall be no more than the rates
charged by the local public utility company for such services. Upon Lessee's
request, Lessor shall furnish sufficient documentation to substantiate such
local public utility rates and shall immediately refund any overpayment made by
Lessee. In the event utility service is interrupted to the Premises due to the
need for maintenance and repair to the utility lines, Lessor shall immediately
commence restoration and repairs of the lines and conduits in order that said
utility service shall be resumed at the earliest possible time. If Lessor shall
fail to make such repairs, Lessee may do so at Lessor's expense. Additionally,
should there be an interruption in the utilities for more than 24 hours due to
the Lessor's negligence or failure to act, rent shall be abated until the
utilities are restored.
<PAGE> 3
9. MAINTENANCE AND REPAIRS. Structural portions of the Premises and the Building
and improvements, including the roof, foundation, exterior walls, loadbearing
interior walls, parking lot and sidewalks shall be maintained and repaired by
Lessor at Lessor's sole cost and expense. Lessee shall maintain and repair at
the sole cost and expense of Lessee the non-structural portions of the Premises
including all partitions, doors, ceiling, fixtures, equipment and appurtenances
thereof in good order, condition and repair, reasonable wear and tear excepted.
At any time during the Term of this Lease should there be repairs needed for
plumbing, heating, electrical, air, etc., Lessee agrees to call Lessor and give
reasonable time to repair. If Lessor has not responded within forty eight hours
(48) Lessee has the right to repair and submit bill to Lessor for payment.
10. ALTERATIONS, IMPROVEMENTS AND SIGNAGE. Lessee shall have the right at any
time throughout the Term and any extensions hereof, to make or cause to be made
to the Building, any alterations, additions, and to improvements, or install or
cause to be installed any trade fixture, signs, floor covering, interior or
exterior painting or lighting, plumbing fixtures, shades or awnings, subject to
the prior approval of Lessor, which approval shall be not unreasonably withheld
or delayed by Lessor. Lessee shall not be required to remove any alterations or
improvements made by Lessee to the Premises and Lessee's failure to do so within
thirty (30) days after the expiration of the term of this Lease shall be deemed
to be an abandonment thereof whereby the same shall become part of the real
estate with title thereto vesting in Landlord.
11. FIRE OF CASUALTY. In the event the Premises are taken or destroyed in whole
or in part by fire or other casualty. Lessee may in its sole discretion
terminate this Lease, declare a partial abatement of the monthly rental due
Lessor under this Lease based upon the pro rata portion of Building which has
been subjected to the fire or other casualty until the damage caused by the fire
or other casualty is fully repaired by Lessor or, if more than forty per cent
(40%) of the Building is rendered untenantable, declare a total abatement of the
monthly rental due Lessor until the damage caused by the fire or other casualty
has been fully repaired by Lessor.
12. EMINENT DOMAIN. If any portion of the Premises shall be taken by right of
Eminent Domain, Lessee shall have the right, at its discretion, to terminate
this Lease and be relieved from further liability hereunder. Should Lessee elect
not to terminate this Lease, the rent due during the remainder of the Lease term
shall be reduced in proportion to the area taken, effective on the date physical
possession is taken by the condemning authority. Following such taking, Lessor
shall, with all due diligence and at its own cost and expense, make all
necessary repairs and alterations required to make the remaining portion of the
Premises an architectural whole. All compensation awarded for such taking shall
be allocated in accordance with the Lessor's and Lessee's respective interest
therein.
13. LESSEE'S DEFAULT. If Lessee shall fail to make any payment of rent within
fifteen (15) days of the day when due or if Lessee shall fail to keep and
perform any express written covenant of this Lease and shall continue in default
for a period of thirty (30) days after Lessee has received written notice of
such default and demand of performance from Lessor, Lessor may commence judicial
proceedings against Lessor to terminate this Lease, provided, however, if any
default shall occur (other than in the payment of rent) which cannot be cured
within a period of thirty (30) days and Lessee, prior to the expiration of
thirty (30) days from and after the giving of notice as aforesaid, commences to
eliminate such default and proceeds diligently to take steps to cure the same,
Lessor
<PAGE> 4
shall not have the right to declare the term ended by reason thereof. In no
event shall Lessor be entitled to accelerate rent due from Lessee or to take
possession of the Premises or personal property owned by Lessee on the Premises
without any order of a court of competent jurisdiction authorizing such action.
It shall be the duty of the Lessor in any event of default to use its best
efforts to mitigate Lessee's damages.
14. LESSOR'S DEFAULT. If Lessor shall be in default or shall fail or refuse to
perform or comply with any of his obligations under this lease and shall
continue in default for a period of thirty (30) days after Lessee has given
Lessor written notice of such default and demand of performance, Lessee may
remedy the same and deduct the cost thereof from subsequent installments of rent
or terminate the Lease and recover from Lessor any and all damages Lessee may
have incurred due to such default or failure; however, it shall be the duty of
Lessee in any event to use its best efforts to mitigate Lessor's damages.
15. ASSIGNMENT AND SUBLETTING. Lessee shall have the right to assign, sublet,
transfer, or encumber this Lease or its rights hereunder or any part thereof at
any time and from time to time during the term of this Lease. In the event of a
sublease Lessee shall remain responsible for the payment of rent and for the
performance of all terms, covenants and conditions undertaken by Lessee pursuant
to this Lease. In the event of an assignment of this Lease which has been
approved by Lessor, Lessee shall owe no further duties, obligations or
liabilities to Lessor under this Lease.
16. HOLDING OVER. In the event Lessee remains in possession of the Premises
after the expiration of the Term without executing a new Lease, Lessee shall
occupy the Premises from month to month, subject to all of the covenants of this
Lease insofar as consistent with such a tenancy.
17. HAZARDOUS MATERIALS. Lessor warrants and represents that any use, storage,
treatment or transportation of hazardous substances which has occurred in or on
the Premises prior to the date hereof has been in compliance with all applicable
federal, state and local laws, regulations and ordinances. Lessor additionally
warrants and represents that no release, leak discharge, spill, disposal or
emission of hazardous substances has occurred in or under the Premises, and that
the Premises are free of hazardous substances as of the date hereof. Lessor
agrees to indemnify and hold harmless the Lessee from any and all claims,
damages, fines, judgments, penalties, costs, liabilities or losses (including,
without limitation, any and all sums paid for settlement of claims, attorneys
fees, consultant and expert fees) arising during or after the lease term from or
in connection with the presence or suspected presence of hazardous substances
in, on or beneath the Premises, unless the hazardous substances are present
solely as the result of negligence, willful misconduct or other acts of Lessee,
Lessee's agents, employees, contractors or invitees. Without limitation of the
foregoing, this indemnification shall include any and all costs incurred due to
any investigation by a federal, state or local agency or political subdivision,
unless the hazardous substances are present solely as the result of negligence,
willful misconduct or other acts of Lessee, Lessee's agents, employees,
contractors or invitees.
18. NOTICES. Any notice, report, statement, approval, consent, designation,
demand or request to be given under this Lease shall be effective when made in
writing, deposited for mailing with the United States Postal Service and
addressed to Lessor or Lessee at the following addresses.
<PAGE> 5
LESSOR: Scott P. Pinckard
509 West 8th Street
West Point, Georgia 31833
(706) 645-5555 (706) 643-4663
Fax (706) 643-3648
LESSEE: CyberNet Holding, Inc.
1239 O. G. Skinner Drive
West Point, Georgia 31833
Attn: Felix Boccucci
19.MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and shall inure to
the benefit of Lessor, Lessee and their respective successors and assigns.
(b) GOVERNING LAW. This Lease shall be construed under the laws of the State of
Georgia.
(c) MERGER CLAUSE. This Lease contains the entire agreement between Lessor and
Lessee regarding the Premises which are the subject of this Lease and may only
be altered by a written agreement executed by both Lessor and Lessee.
(d) SEVERABILITY.. If any term or provision of this Lease or the application
hereof to any person or circumstance shall to any extent, be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby.
(e) FORCE MAJEURE. In the event the performance by either party of any of its
obligations hereunder, except with the respect of payment of money, is delayed
by reason of the act or neglect of the other party, act of God, strike,
governmental restrictions, war, or any other cause, similar or dissimilar,
beyond the reasonable control of the party from whom such performance is due,
the period for the commencement of completion thereof shall be extended for a
period equal to the period during which performance is so delayed.
(f) COUNTERPARTS. The Agreement may be executed in any number of counterparts
each of which when so executed and delivered shall be deemed an original, but
such counterparts together shall constitute but one and the same instrument.
(g) NO PARTNERSHIP CREATED. The Lessor and Lessee are not and shall not be
considered joint adventurers, not partners, and neither shall have power to bind
or obligate the other except as set forth herein.
<PAGE> 6
(h) HEADINGS. The titles to the paragraphs of this Agreement are inserted only
as a matter of convenience and for reference and in no way confine, limit or
describe the scope or intent of any section of this Agreement, nor in any way
affect this Agreement.
(i) MODIFICATION. No modifications, alterations, or amendments of this Lease or
any agreements in connection therewith shall be binding or valid unless in
writing and duly executed by both Lessor and Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the day and
year above first written.
LESSOR:
/s/ Scott P. Pinckard
------------------------------
Scott P. Pinckard
Signed, sealed and delivered this
_________ day of __________________, 1997
in the presence of:
- -----------------------------------
Witness
- -----------------------------------
Notary Public
LESSEE:
CyberNet Holding, Inc.
By: /s/ Felix L. Boccucci Jr.
------------------------------
Title: VP-Treasurer-Secretary
---------------------------
(SEAL)
Signed, sealed and delivered this
27th day of February, 1997
in the presence of:
/s/ Cristy Snider
- -----------------------------------
Witness
/s/ Jackie Rogers
- -----------------------------------
Notary Public
My Commission Expires March 8, 1997
<PAGE> 1
EXHIBIT 10.13
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
03/19/97 3:19 PM LEASE AGREEMENT
This Agreement is entered as of the 2nd day of April 1997 by and between
Interstate Telephone Company (Lessor) and CyberNet Holding, Inc. (Lessee). This
Agreement is based upon the following terms and conditions and the rates set
forth in Attachment A.
DESCRIPTION OF SERVICE:
SWITCHING
Switching capacity and services for Cybernet's Montgomery and
Columbus exchanges are provided from Interstate Telephone's West Point, Georgia
central office. Switching will be leased as follows: For each line side port
leased, a flat rate will be charged for the port and an additional per minute
charge will be supplied for each equipment minute of use. If lessee provides its
own ports through its own local switch, then charges will be limited to the per
minute charge on all originating and terminating traffic. Service activation
(moves, adds, and service changes) are provided on a "ready to serve" basis,
without regard to the number of transactions per line per month and will be
assessed on a monthly per line basis. This "ready to serve" charge is fully
billable for any line in service for any duration of the monthly billing period.
For the initial period of the lease, until measurement of all jurisdictions of
calls is available at West Point by line and lessor exercises its option to bill
actual usage, the entire lease expense will be expressed on a per minute basis
and will by for an assumed 800 originating minutes of use per line.
INTERCONNECTION SERVICES
Interstate Telephone Company will provide TR303 switch interface
service to support DS1 ports to connect lessee's Host Digital Terminals (HDT's).
Each Cybernet HDT requires, at a minimum, two T-1 level termination's (one
incoming and one outgoing). In addition, Interstate Telephone will provide local
tandem access and interexchange carrier trunk termination services.
FORECASTS
It is the responsibility of both parties to mutually plan and
forecast network and facility requirements. Forecasts, together with lessor and
lessee installation dates and commitments are to be prepared annually and
updated each 90 days. The initial term forecasts and commitments are provided in
Attachment B.
TERMS AND CONDITIONS:
1. Lessee may not use the facilities described in Attachment A in
any manner which will cause harm to Lessor's network. The Lessee shall not, at
any time, alter in any way the leased services and facilities without the
written consent of the Lessor.
2. Service Charges. Lessee shall pay Lessor at the rate and fees as
noted in Attachment "A". Services are billable in advance and billings will be
rendered by the tenth day of the month. Payment terms are net 30 days (i.e.
April's billing is due no later than May 10).
Page 1
<PAGE> 2
3. Late Payment Charge. Lessor may impose a late-payment charge if
any portion of a payment due to Lessor under Section 2 is received after the
payment date. The late-payment charge shall be the portion of the payment not
received by the payment date times a late factor. The late factor shall be .015%
per month or the highest interest rate (in decimal value) which may be lawfully
imposed for commercial transactions in Georgia (whichever is less) compounded
daily for the number of days from the payment date to and including the date
that Lessee actually makes the payment to the Lessor.
4. Term. Lessee's obligation to make the monthly payments described
in Section 2 above shall commence on May 1, 1997. This Agreement shall terminate
one year after the date this Agreement is executed. If proper notice as required
in paragraph 9 is not received by the Lessor 90 days prior to the termination
date that Lessee wishes to terminate the Agreement, this Agreement will
automatically renew for a period of one year, and renew annually thereafter,
until such termination notice is given. Lessor reserves the right, upon 90 days
advance written notice, to change any rates and fees commensurate with the
beginning of any automatic renewal period. In the event Lessor does change the
rate and fees, Lessee shall have the right to cancel this contract by giving
Lessor written notice thereof within 90 days of Lessee's notice of the rate
change.
Upon notice from Lessor that Lessee has failed to comply with any
of the conditions hereof, or that the use of plant facilities is forbidden by
regulatory authorities, the lease shall immediately terminate for the said
facilities or services, and Lessee shall forthwith discontinue the use of those
facilities. Upon Lessee's failure to discontinue such use, Lessor reserves the
right to cause such discontinuance at the expense of Lessee, and no liability
shall inure to Lessor on account of such discontinuance.
5. System Maintenance. Lessee covenants and agrees that it will
maintain its equipment and facilities according to generally accepted standards,
in good working order at all times, and will repair promptly any malfunction or
breakdown in its equipment and facilities which could impair the function of the
Lessor's Facilities.
6. Outages. Lessor shall not be liable to Lessee for any damages
resulting to Lessee from the outage or malfunction of the Lessor's Facilities.
Restoration of service resulting from service outages or malfunctions due to
equipment failure, human error, fire, natural disaster, acts of God or similar
occurrences shall be accomplished as expeditiously as practicable. Lessor's
liability in the event of such an outage or malfunction shall be limited to a
credit for outage time. No credit shall be allowed for an interruption of less
than two hours during any given month. The credit shall be a pro rata share of
the Lessee's monthly charge, not to exceed the Lessee's total monthly charge.
Any claim for such a credit must be made within five (5) days following such
outage or malfunction.
7. Inspection and Testing. Lessee shall have the right, upon
reasonable notice, to inspect Lessor's Facilities. Lessor will aid in the
provision of end-to-end testing as necessary.
Page 2
<PAGE> 3
8. Software License Fees. Lessee agrees to reimburse lessor for any
software license fees incurred as a result of the business arrangement herein
described. Software license fees are payable in advance in one hundred telephone
number block increments as ordered by lessee. License fees vary according to
services as listed below:
Service Offerings Per 100 Lines
----------------- -------------
a. Centrex [_____]
b. Calling number and calling name ID [_____]
c. Voice Mail [_____]
d. Primary rate ISDN [___________]
e. Basic rate ISDN [________]
9. Property Rights. Neither the provision of any facilities or
services by Lessor or Lessee, nor the payment by Lessee for such facilities or
services, shall create or vest in Lessee any easement or other ownership and
property rights of any nature in the Lessons facilities or related systems
and/or equipment of the Lessor.
10. Notices. Except where otherwise provided in this Agreement,
notices required to be given pursuant to this Agreement shall be effective when
received, and shall be sufficient if given in writing, hand delivered, or United
States mail, postage prepaid, addressed to the appropriate party at the address
set forth below. At any time by giving written notice to the other party, either
party may change the name and address to whom all notices or other documents
required under this Agreement must be sent.
Lessor Lessee
------ ------
Interstate Telephone Company CyberNet Holding, Inc.
910 First Avenue 312 W. 8th Street
P.O. Box 510 P.O. Box 510
West Point, Georgia 31833 West Point, Georgia 31833
11. Assignment. Neither party shall assign or transfer all or any
part of its rights or interest hereunder without first obtaining the written
consent of the other party to such an assignment or transfer, such consent not
to be unreasonably withheld; provided, however, that an assignment by either
party to an affiliate of that party shall not require prior approval. In the
event of any assignment of this Agreement, the assignee shall assume all rights
and obligations under the terms and conditions of this Agreement, as then in
force, from the assigning party. Notwithstanding the above, Lessee shall not
transfer, sublet or permit any other entity to cohabit any of the facilities or
services described in this Agreement without the written consent of Lessor.
Page 3
<PAGE> 4
12. Regulatory Approval. This Agreement may be subject to the
regulatory approval prior to the installation of the service. Should such
regulatory approval be denied, this Agreement shall be null, void, and of no
effect.
13. Independent Contractor. Each of the parties shall perform its
obligations hereunder as an independent contractor and not as the agent,
employee or servant of the other party.
14. Liability Insurance. Lessor and Lessee shall furnish to each
other, on an annual basis, a certificate of liability insurance covering the
facilities and services described under this Agreement.
15. Force Majeure. Neither party shall be held liable for any delay
or failure in performance of any obligation under this Agreement when such delay
or failure results from any cause beyond its control, such as acts of God, acts
of civil or military authority, governmental regulations, war, terrorist acts,
insurrections, explosions, fires, earthquakes, nuclear accidents, floods,
strikes, power blackouts, other major environment or weather conditions, or
inability to secure equipment.
16. Limitations of Liability. Neither lessor nor lessee shall be
liable to the other for any indirect, incidental, or consequential damages
(including but not limited to loss of profits, damage to business reputation,
lost opportunity, or other remote items of damage) arising from any errors in,
use of, inability to use, or other defects in the equipment or services provided
hereunder, or based on breach of warranty or contract, negligence, or any other
legal theory, whether or not lessor or lessee has been advised of the
possibility of such damages. Lessor's liability for damages suffered by the
other or third parties using or unable to use the equipment or services covered
under this agreement shall be limited to a credit for outage or malfunction as
provided for in paragraph 6 hereof.
17. Indemnification. Lessee agrees to hold harmless and indemnify
Lessor from and against all claims, liability, loss and damage, including
reasonable attorney's fees, for injury or death to persons or damage to property
arising out of or in connection with this Agreement and the provision of
services by Lessor to Lessee pursuant to this Agreement.
18. Confidentiality of Agreement. The parties of this Agreement will
treat this Agreement, its notices, and any amendments, and their terms and
conditions as strictly confidential. Neither party will disclose the foregoing
(a) to any officer, employee, or agent of a party to this Agreement who has no
authority to have access to the data and materials or who has no business need
to know same or (b) to any person who is not a party to this Agreement. If a
court with proper jurisdiction or another governmental agency with proper
jurisdiction orders a party to disclose or to provide any data or any document
relating to this Agreement, that party will immediately notify the other party
of the order. Such notification shall be by both telephone and by mail. The
parties, thereafter, shall mutually agree as to whether they should jointly make
a reasonable effort to secure
Page 4
<PAGE> 5
an agreement of confidentiality from such court or agency before responding
thereto. If only one party desires to seek such an agreement of confidentiality,
that party may proceed at its own expense; provided, further, that the
non-agreeing party shall not take any action that would interfere with such
action.
19. Non-Exclusivity. Lessor and Lessee recognize and expressly
agree that nothing in this Agreement shall create an exclusive relationship
between the parties.
20. No Waiver. No failure of a party to enforce a provision of this
Agreement will be construed as a general or a specific waiver of that provision,
a party's right to enforce that provision, or a party's right to enforce any
other provision of this Agreement.
21. Severability. If any provision of this Agreement is held
invalid, unenforceable or void, the remainder of the Agreement shall remain in
force and effect.
22. Entire Agreement/Amendments. This Agreement embodies the entire
Agreement and understanding between the parties hereto pertaining to the subject
matter hereof. No provision of this Agreement may be altered, amended, canceled,
changed, discharged, modified, terminated or waived except by written Agreement
signed by both parties.
23. Governing Law. This Agreement shall be governed by, construed
in accordance with, the law of the State of Georgia
24. Headings. The headings in this Agreement are for convenience
only and are not part of this Agreement nor should they be construed as such.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth below.
LESSOR: INTERSTATE TELEPHONE COMPANY
910 FIRST AVENUE/P. O. BOX 510
WEST POINT, GEORGIA 31833
WITNESS: /s/ [ILLEGIBLE SIGNATURE] BY: /s/ Robert Nyswaner
-------------------------- -----------------------------------------
TITLE: CFO
--------------------------------------
DATE: 4/2/97
---------------------------------------
LESSOR: CYBERNET HOLDING, INC.
312 W. 8TH STREET/P.O. BOX 510
WEST POINT, GEORGIA 31833
WITNESS: /s/ Dixie Noles BY: /s/ William E. Morrow
-------------------------- -----------------------------------------
TITLE: CEO & President
-------------------------------------
DATE: 4/2/97
---------------------------------------
Page 5
<PAGE> 6
ATTACHMENT "A"
RATES AND CHARGES
A. SWITCHING SERVICES PROVIDED:
This lease is for switching capacity and services from the West Point, Georgia
central office. Switching will be leased as follows: For each line side port
leased, a flat rate will be charged for the port and an additional per minute
charge will be supplied for each equipment minute of use. If lessee provides its
own ports through its own local switch, then charges will be limited to the per
minute charge on all originating and terminating traffic. Service activation
(moves, adds, and service changes) are provided on a "ready to serve" basis,
without regard to the number of transactions per line per month and will be
assessed on a monthly per line basis. This "ready to serve" charge is fully
billable for any line in service for any duration of the monthly billing period.
Service activation and support charges are not pro ratable. Lessor reserves the
right, upon 120 day advance notice, to bill service activation (moves, adds and
service changes) at [____] per transaction in lieu of the monthly per line
charge of [_____].
1. LEASE RATES:
For Originating and Terminating Switching Capacity at the West Point
Central Office
INITIAL LEASE PERIOD:
---------------------
ITEM MONTHLY RATE
---- ------------
Line side Port [_____] per port
Switching Capacity [_______] per equipment minute
Service Activation [____] per line
2. ASSUMED MINUTES:
Lessor agrees to use assumed minutes as an interim basis for
billing but reserves the right to convert to actual use at its sole discretion
upon sixty days advance notice. Unless other notified, it is assumed that each
line in service generates a total of [___] total minutes of use (originating and
terminating traffic) each month. Billings will be rendered in arrears on a
calendar month basis. First month's and last month's billings will be prorated
at l/2 of the full monthly charge (i.e. [_____] per line for switching and
[____] per line for service activation).
3. SUMMARY OF MONTHLY CHARGES PER LINE:
Switching services [_____]
Service Activation [_____]
-----
Total per line charge [_____]
Page 6
<PAGE> 7
B. INTERCONNECTION SERVICES PROVIDED
Interstate Telephone Company will provide TR303 switch interface
service to support DS1 ports to connect lessee's Host Digital Terminals (HDT's).
Each Cybernet HDT requires, at a minimum, two T-1 level terminations (one
incoming and one outgoing). In addition, Interstate Telephone will provide local
access tandem and interexchange carrier trunk termination services.
1. Interconnection fees are set forth in the table below:
<TABLE>
<CAPTION>
Basis For Monthly
Charge Recurring Installation
------ --------- ------------
<S> <C> <C> <C>
TR303 Interface T-1 [_______] [_______]
DS1 Local Channel T-1 [______] [_]
(co-located)
DS1 Digital Trunk T-1 [______] [_______]
Termination
Network Access (DS1) Channel [_____] [_]
NNX Administration NNX [__] [_________]
</TABLE>
2. First month's and last month's billings will be prorated
at one half (1/2) of the full monthly charge.
C. SOFTWARE LICENSE FEES
One-time software license fees are payable in advance in one
hundred block increments as ordered by lessee. License fees vary according to
services as listed below:
Service Offerings Per 100 Lines
----------------- -------------
a. Centrex [______]
b. Calling number and calling name ID [______]
c. Voice Mail [______]
d. Primary rate ISDN [____________]
e. Basic rate ISDN [_________]
BY: /s/ Robert Nyswaner BY: /s/ William E. Morrow
----------------------------------- ------------------------------
Interstate Telephone Company CyberNet Holding, Inc.
TITLE: CFO TITLE: CEO & President
-------------------------------- ---------------------------
DATE: 4/2/97 DATE: 4/2/97
--------------------------------- ----------------------------
Page 7
<PAGE> 8
ATTACHMENT "B"
CYBERNET FORECASTS
CYBERNET LINE FORECAST FOR 1997
- -------------------------------
HDT'S TELE LINES 12/31/97
----- -------------------
Montgomery Nodes [_] [____]
Headend [_] [___]
[____]
Columbus Nodes [_] [___]
Headend [_] [___]
[__] [____]
TOTAL TELEPHONE LINES @ 12/31/97 [____]
TR303, LOCAL AND IXC REQUIREMENTS FOR 1997
- ------------------------------------------
ESTIMATED LOCAL &
TR303 TR303 T's IXC T-1's
HDT'S T'S/HDT @ 12/31/97 @ 12/31/97
----- ------- ---------- ---------
TR303 T-1 Interconnections- [__] [_] [__]
Minimum for each HDT of [_]
Local Interconnection-T-1's [_]
Toll Interconnection - T-1's [_]
Notes: Minimum TR303 T's per HDT is [___] regardless of customers
per HDT.
Assumes bus:res does not exceed a 50/50 split
Additional TR303 T's may be required depending on traffic
patterns and customers per HDT node.
HDT roll-out schedule for live telephone to be provided by
CyberNet
HDT REQUIREMENTS:
Location NNX Number In Service Date
-------- --- ------ ---------------
Montgomery
Columbus
BY: /s/ Robert Nyswaner BY: /s/ William E. Morrow
--------------------------------- -----------------------------
Interstate Telephone Company CyberNet Holding, Inc.
TITLE: CFO TITLE: CEO & President
--------------------------------- -----------------------------
DATE: 4/2/97 DATE: 4/2/97
--------------------------------- -----------------------------
Page 8
<PAGE> 1
EXHIBIT 10.14
LEASE
STURBRIDGE VILLAGE
SHOPPING CENTER
LESSEE
CYBERNET HOLDING d/b/a
MONTGOMERY CABLEVISION & ENTERTAINMENT, INC.
LESSOR
SOUTHERN BOULEVARD CORPORATION
<PAGE> 2
LEASE
STATE OF ALABAMA )
MONTGOMERY COUNTY)
THIS LEASE AGREEMENT MADE this 15th day of May, 1997, by and between
SOUTHERN BOULEVARD CORPORATION, (hereinafter called "Lessor"), and CYBERNET
HOLDING D/B/A MONTGOMERY CABLEVISION & ENTERTAINMENT, INC., (hereinafter called
"Lessee").
WITNESSETH
In consideration of the rents, covenants and agreements provided for and
contained in this Lease Agreement, Lessor does hereby lease unto Lessee and
Lessee does hereby lease from Lessor the following identified premises in the
City of Montgomery, Alabama subject to the terms and conditions hereinafter set
out;
1. PREMISES. That certain store space located in the Sturbridge Village
identified for convenience purposes as Unit 5 (front 1/2), Unit 6 and 7,
thereof, containing 3,000 +/- square feet, and more particularly outlined in red
on the attached Exhibit "A" which is a general plot plan of subject shopping
center and which plot plan with leased premises specifically outlined thereon,
is made a part of this Lease Agreement by reference. Said space shall
hereinafter be referred to as the "Premises" or "Leased Premises".
2. PERMITTED USE. The premises shall be used only as a customer service
and administrative office for Lessee, a provider of cable and other
communications services.
3. LEASE TERM. The term of this Lease will be for exactly Five (5)
calendar years, commencing thirty (30) days after the Lessor delivers
possession of the Premises to the Lessee or when the Lessee opens for business,
whichever occurs first.
4. BASE RENT. The base rent for the first 3 years of the original term
will be Thirty-two Thousand Two Hundred fifty and 00/100 Dollars ($32,250.00)
per year, payable monthly, in advance, on the first day of each month at the
rate of $2,687.50 per month. Years 4 and 5 shall be adjusted by the Consumer
Price Index in the manner provided in Paragraph 5.
5. OPTION. In addition to the original term stated in Paragraph 3,
above, the Lessee shall have the right, privilege and option to extend this
Lease for one additional three (3) year option term, subject to the other
provisions relating to notice and rent hereinafter provided for. In order for
Lessee to exercise these option rights, Lessee must give to Lessor, written
notice of Lessee's intention to exercise its option to extend the lease term,
which notice must be delivered to Lessor at least one hundred and eighty (180)
days prior to expiration of base term. Notice given after said date will be
ineffective to exercise the option rights granted herein. During each rental
year following the Third rental year of the initial lease term and including
any rental year of any option period, Lessee covenants and agrees to pay to
Lessor, as the base rental, a sum determined by taking the first year's rent
and multiplying it by a fraction the denominator of such fraction to be the
index number of the Consumer Price Index seasonally adjusted U. S. City Average
for all items for all urban consumers published monthly in the Monthly Labor
Review of the Bureau of Labor Statistics of the United States of Labor for the
month immediately preceding the first month of the original lease term and the
numerator shall be said index number for the second month preceding
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 2
<PAGE> 3
the end of each lease year. The base rent is specifically to be adjusted for
each such lease year, but in no event shall the base rent be less than that paid
in the preceding lease year.
Should the Consumer Price Index be discontinued, then an equivalent number shall
be used, if available, and if not, the parties will re-negotiate the rent for
the option period.
SECURITY DEPOSIT. Concurrently with Lessee's execution of this Lease,
Lessee shall deposit with Landlord a security deposit of N/A ( N/A ). Said sum
shall be held by Lessor as a Security Deposit for the faithful performance by
Lessee of all of the terms, covenants, and conditions of this Lease to be kept
and performed by Lessee hereunder, throughout the entire term of this Lease. If
Lessee defaults with respect to any provisions of this Lease, including but not
limited to the provisions relating to the payment of rent and any of the
monetary sums due herewith, Lessor may (but shall not be required to) apply the
Security Deposit towards the past due rent or charges; or, Lessor may use, apply
or retain all or any part of this Security Deposit for the payment of any other
amount which Lessor may spend or become obligated to spend by reason of Lessee's
default or to compensate Lessor for any other loss or damage which Lessor may
suffer by reason of Lessee's default. If any portion of said Deposit is so used
or applied, Lessee shall, within ten (10) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore the Security Deposit
to its original amount. Lessee's failure to do so shall be a material breach of
this Lease. Lessor shall not be required to keep this Security Deposit separate
from its general funds, and Lessee shall not be entitled to interest on such
Deposit. If Lessee shall fully and faithfully perform every provision of this
Lease to be performed by it, the Security Deposit or any balance thereof shall
be returned to Lessee, (or, at Lessor's option, to the last assignee of Lessee's
interests hereunder) at the expiration of the Lease term and after Lessee has
vacated the Premises. In the event of termination of Lessor's interest in this
Lease, Lessor shall transfer said Deposit to Lessor's successor in interest,
whereupon Lessee agrees to release Lessor from all liability for the return of
such Deposit or the account therefor. Lessee shall not have the right to apply
the Security Deposit in payment of the last month's rent.
6. DEMISE. The Lessor hereby leases and demises the Leased Premises and
no other parts of the shopping center, to the Lessee subject to all of the
terms and provisions of this Lease, specifically including but not limited to
the provisions regarding permitted use, and subject to all other terms and
conditions herein contained and subject to all liens, encumbrances, easements,
restrictions, zoning laws and governmental or regulations affecting the
shopping center or the Leased Premises. The Leased Premises shall include only
the specific space granted in this Lease and Lessor specifically excepts and
reserves for itself, the roof, air space above the roof, space below the floor,
exterior portions of the Leased Premises other than the specific store front
for the Leased Premises, and the right (but not the obligation) to install,
maintain, use, repair and replace all pipes, ductwork, conduits, utility lines,
wires, and other similar items within the Leased Premises. Lessor also
specifically excepts and reserves unto itself all other parts of the shopping
center site, including out parcels, parking areas, driveways, and undesignated
use areas of the shopping center, subject to the rights of Lessee and Lessee's
customers to use a portion of the common areas, subject to the terms and
provisions of the following paragraph.
7. USE OF COMMON AREAS. The use and occupation by Lessee of the premises
shall include a revocable license to use in common with the others entitled
thereto the common areas, as same may be designated from time to time by the
Lessor, subject, however, to the terms and conditions of this Lease and to
rules and regulations for the use thereof as prescribed from time to time by
the Lessor. The purpose of the Site Plan is to show the approximate location of
the premises. The term "Common Areas" as used in this Lease shall mean all
facilities furnished by Lessor from time to time for the nonexclusive use of
the occupants of the shopping center, their officers, agents; employees and
customers, which facilities may include, but are not limited to, the parking
areas, drives, sidewalks, walkways, service areas, roadways, loading platforms,
drainage and plumbing systems, roof, canopies, ramps, landscaped areas and
other similar facilities as they may from time to time exist. Lessor reserves
the right to alter at any time the size, scope and
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 3
<PAGE> 4
configuration of the shopping center and all or any portions of the common areas
including but not limited to the right to construct other buildings or
improvements in the shopping center, to construct double-deck or elevated
parking facilities, to relocate the building, automobile parking areas and other
common areas, to change the number of buildings and buildings' dimensions, the
identify and type of other stores and tenancies provided only that the size of
the Leased Premises and access to the Leased Premises shall not be materially
adversely impaired. Lessor further reserves the right to grant to others the
right to use the common areas of the shopping center. Lessor shall have no
obligation to permit any of the common areas to be operated beyond the hours
established by Lessor. All common areas not within the premises, which Lessee
may be permitted to use, are to be used under a revocable license, and if the
amount of the common areas be diminished, Lessor shall not be subject to any
liability and Lessee shall not be entitled to any compensation or diminution or
abatement of rent, except as may be expressly provided elsewhere herein, nor
shall such use or diminution of the common areas be deemed constructive or
actual eviction.
8. CONSTRUCTION/POSSESSION. Lessor and Lessee hereby agree that Lessee's
taking possession of the premises shall be deemed conclusive evidence of
Lessee's acceptance of the premises in satisfactory condition and in full
compliance with all covenants and obligations of Lessor in connection
therewith. Lessee agrees that it will accept possession of the premises in an
"as is" condition and that no representations or inducements respecting the
condition of the premises have been made to Lessee by Lessor or its authorized
representatives. Similarly, Lessee acknowledges that no promises to decorate,
alter, repair or improve the premises, either before or after execution hereof,
have been made by Lessor or its authorized representative, except as agreed to
in writing by the parties and in accordance with the attached Exhibit "C" to
this lease, which by reference is made a part of this lease Agreement,
reflecting the exact work to be performed. Lessee further agrees that no
representations have been made to it that any other tenants will lease or will
continue to lease space within the shopping center or that Lessee has any
exclusive right to sell merchandise of any type and character, except as may be
expressly provided elsewhere herein. It shall be the Lessee's sole obligation
and responsibility to make sure the Leased Premises and the Lessee's use of the
Leased Premises comply in all regards to the requirements of The Americans With
Disabilities Act. If the Leased Premises and the Lessee's use of the Leased
Premises does not so comply then such failure to comply shall constitute a
default and breach of this Lease by the Lessee.
9. QUIET ENJOYMENT. Lessor covenants that Lessee, upon paying all sums
due from Lessee to Lessor hereunder and performing and observing all of
Lessee's obligations under this Lease, shall, subject to the provisions hereof,
peacefully and quietly have, hold and enjoy the premises throughout the Lease
Term without interference by the Lessor, subject, nevertheless, to the other
terms and provisions of this Lease.
10. STATEMENT OF LEASE TERM. Upon Lessors request, Lessee shall execute
and deliver a written statement furnished by Lessor in recordable form
specifying the rental commencement date and termination date of the Lease Term.
11. ADDITIONAL RENT. In addition to the base rental referred to
hereinabove, Lessee will be responsible for additional rent covering Lessee's
proportionate share of Lessor's expenses for taxes, insurance, and common area
maintenance. Lessor will provide Lessee with a written statement of said
additional rent calculation reflecting Lessee's proportionate share of same, as
soon as reasonably possible after January 1st of each respective lease year or
option year.
a. Lessee's pro rata responsibility will be calculated comparing the
Leased Premises to the over all leasable area of the shopping center.
Said responsibility will be a fraction, expressed as a percentage,
using the total leasable area of the shopping center as the
denominator of the fraction and the total area of Lessee's Leased
Premises hereunder as the numerator of the fraction.
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 4
<PAGE> 5
b. Additional rent will include all taxes and assessments relating to
the shopping center of which the Leased Premises are a part,
including any ad valorem on subject property, and will also include
Lessor's property and casualty and liability insurance expense as it
relates to all policies of insurance covering the shopping center and
any portions thereof, and covering all damages, injuries and
liability relating thereto, and said additional rent will also
include common area maintenance.
c. Common Area Maintenance shall include but are not limited to
Lessor's costs of operating, repairing, lighting, cleaning,
maintaining landscaping and plantings, painting, and advertising and
promoting the shopping center and all parts and portions thereof
d. Lessee's responsibility for its pro rata share of each of these
costs and expenses hereinabove outlined will begin effective upon
lease commencement and will cover the calendar year 1997 and each and
every calendar year thereafter but if the leased term ends on any
other date other than the last day of December of any respective
year, then the Lessee's responsibility for these charges and expenses
will be pro rated through the last date of Lessee's rental
responsibility under this agreement in the final year of the lease.
The Lessee shall pay its proportionate share in advance based on
estimates made by the Lessor from time to time which estimate at the
present time for the first Lease Year is $3,750.00 payable at the
rate of $312.50 per month.
12. PERCENTAGE RENT. INTENTIONALLY OMITTED
13. GROSS RECEIPTS DEFINED. INTENTIONALLY OMITTED
14. LESSEE'S RECORDS. INTENTIONALLY OMITTED
15. REPORTS BY LESSEE. INTENTIONALLY OMITTED
16. UTILITIES. Lessee shall make application for, obtain, pay for, and
be solely responsible for all utilities required, used or consumed in the
premises. In the event that any charge for any utility supplied to the premises
is not paid by Lessee to the utility supplier when due, then Lessor may, but
shall not be required to, pay such charge for and on behalf of Lessee, with any
such amount paid by Lessor being repaid by Lessee to Lessor, as additional
rent, promptly upon demand. Additionally, if Lessor shall elect to supply any
of the utility services, then Lessee shall pay to Lessor the cost of its
utility consumption, along with the cost of installing separate metering
devices, if necessary. Lessor agrees that the cost to Lessee for any
Lessor-provided utility service shall not exceed the amount Lessee would have
had to pay had it independently obtained said utility service from the local
utility supplier. Lessor and Lessee hereby agree that Lessor shall not be
liable for any interruptions or curtailment in utility services due to causes
beyond its control or due to Lessor's alteration, repair or improvement of the
premises or the shopping center.
17. MAINTENANCE BY LESSEE. Lessee shall be responsible for all
maintenance and repairs necessary in the leased premises and Lessee shall keep
the leased premises and appurtenances thereto in good order, condition and
repair, clean, sanitary and safe, including the replacement of equipment,
fixtures, and all broken glass at all times. Lessee shall not make any
additions, improvements, alterations or major repairs to or on the leased
premises without the written consent and approval of Lessor. Lessee will be
fully responsible for all heating and air conditioning units and systems
relating to or serving the leased premises. Lessee shall be responsible for
keeping the areas immediately to the rear and to immediately to the front of
the leased premises, specifically loading areas and/or loading dock areas and
the front sidewalk areas clean and free of all trash, refuse, garbage, paper,
water and ice.
18. MAINTENANCE BY LESSOR. Lessor shall keep the exterior supporting
walls, the foundations, the roofs, gutters and downspouts of the leased
premises in reasonable repair, provided
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 5
<PAGE> 6
that Lessee shall promptly give Lessor written notice of the necessity for such
repairs and provided that the damage thereto shall not have been caused by the
negligent or willful acts of Lessee, its officers, agents, employees, customers
or invitees or those of its permitted assignees, sublessees, licensees or
concessionaires; in which event Lessee shall be responsible. Lessor shall have
no obligation to repair, maintain, alter or perform any other acts with
reference to the leased premises or any part thereof or with reference to any
plumbing, heating, ventilation, electrical, air conditioning or other mechanical
equipment or installations therein.
19. SIGNS, AWNINGS AND CANOPIES. Lessee will not place or suffer to be
placed or maintained on any door, wall or window of the premises any sign,
awning or canopy, or advertising matter or other thing of any kind, and will
not place or maintain any exterior lighting, or protruding object or any
decoration, lettering or advertising matter on the glass of any window or door
of the premises without first obtaining Lessor's written approval and consent.
Lessee shall maintain any such sign, awning, canopy, decoration, lettering or
advertising matter as may be approved in good condition and repair at all
times. Lessee shall maintain the show windows and glass in a clean, neat and
orderly condition and shall not maintain any interior signs or flashing lights
visible from the exterior of the premises, without Lessor's written approval.
See attached Exhibit "B" for sign regulations.
20. LIENS. Lessor will not create or permit to be created or to remain
and will discharge any lien, encumbrance or other charge upon the premises, any
part thereof or Lessee's interest therein other than an assignment permitted
under Paragraph 31, provided that Lessee shall not be required to discharge any
liens, encumbrances or charges placed upon the premises by the act of Lessor.
Lessee shall have the right to contest, in good faith and by appropriate legal
proceedings, the validity or amount of any mechanics', laborers' or
materialmen's lien or claimed lien; provided, however, Lessee shall have first
given Lessor such security as may be reasonably required by Lessor to insure
payment thereof and to prevent any sale, foreclosure or forfeiture of the
premises or the shopping center or any part thereof by reason of such
nonpayment. On final determination of such lien or lien claim, Lessee shall
within five (5) days thereafter pay any judgment rendered, with all proper
costs and charges, and shall have such lien released or judgment satisfied at
Lessee's sole expense. Upon such payment and release of satisfaction, Lessor
will promptly return to Lessee such security as Lessor shall have received in
connection with such contest. Lessor reserves the right to enter the premises
to post and keep posted notices of nonresponsibility for any such lien. Lessee
shall pay, protect and indemnify Lessor within ten (10) days after demand
therefor from and against liabilities, losses, claims, damages, costs and
expenses, including reasonable attorney's fees, incurred by Lessor by reason of
the filing of any lien and/or the removal of the same.
21. SURRENDER OF PREMISES. At the termination of this Lease, Lessee shall
surrender the premises in the same condition (subject to the removals
hereinafter required) on the date Lessee opened for business, reasonable wear
and tear and loss due to casualty excepted, broom clean and shall surrender all
keys for the premises to Lessor. Prior to the last day of the Lease Term whether
by expiration or early termination. Lessee shall remove all its trade fixtures
and, to the extent required by Lessor by written notice, any other installation,
alterations or improvements made by Lessee before surrendering the premises as
aforesaid and shall repair any damage to the premises caused thereby. Lessee's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the Lease Term.
22. LESSEE'S USE AND CARE OF PREMISES. Lessee covenants and agrees that
it will at no time advertise or conduct any "going-out-of-business", removal,
fire, auction, liquidation or any other distress sale at the premises. Lessee
shall not permit, allow or cause any noxious, disturbing or offensive odors,
fumes or gases or any smoke, dust, steam or vapors, or any loud or disturbing
noise, sound or vibration to originate in or to be emitted from the premises.
Lessee at all times shall keep the premises in a neat and orderly condition and
shall keep the entry ways, sidewalks and delivery areas adjoining the premises
clean and free from rubbish, dirt, snow and ice. Lessee shall store all trash
and garbage in adequate containers maintained in a neat and clean
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 6
<PAGE> 7
condition and located as Lessor may from time to time designate, so as not to be
visible to the public and not to create or permit any health or fire hazard, and
to arrange, or Lessor may arrange, for regular removal thereof at Lessee's
expense. All garbage and trash must be compacted in the manner and at a location
in or outside the premises as reasonably required by Lessor. Lessee shall keep
the premises clear and free of rodents, insects and vermin and shall keep a pest
control service contract in effect during the Lease Term and, at the request of
Lessor, participate and cooperate in carrying out any program of extermination
that Lessor may direct and Lessee shall pay the cost thereof or, if conducted in
cooperation with other lessees, the Lessee shall pay its pro rata cost on the
basis of floor areas involved of the other lessees participating.
23. INSURANCE. Lessee shall maintain, at its sole expense during the term
hereof, commercial general liability insurance covering the premises with an
Insurer satisfactory to Lessor. This coverage shall (a) have a single limit of
not less than $1,000,000.00. (b) cover Lessee's contractual liability hereunder,
(c) cover the Lessee and Lessor for any losses arising from third parties
performing work on the Premises and (d) name Lessor and Lessee as Insureds
thereunder. Lessee shall also keep in force fire and all risk coverage
insurance, for the full replacement value of Lessee's improvements and Lessee's
property including, but not limited to, inventory, trade fixtures, furnishings,
and other personal property and such coverage shall also include business income
coverage that will pay continuing rental expenses. Lessee will cause the issuer
of such insurance policies to name Lessor as an additional insured and the
policy shall be written such that the insurer waives all right of recovery by
way of subrogation against Lessor in connection with any loss of damage covered
by the policy. In addition, Lessee shall keep in force workman's compensation or
similar insurance to the extent required by law. Lessee shall deliver said
policies or certificates thereof to Lessor within ten (10) days of the earlier
to occur of the following dates, the commencement of the term or Lessee entering
upon the premises. Should Lessee fail to carry the insurance called for herein
Lessor may proceed against Lessee for default as allowed in this Lease, or
Lessor may, at its sole option, procure said insurance and pay the requisite
premiums, in which event, Lessee shall pay to Lessor, as additional rent, all
sums so expended following invoice. Each insurer of the policies required
hereunder shall agree by endorsement on the policy issued by it or by
independent instrument to give Lessor thirty (30) days prior written notice
before the policy or policies in question can be altered or canceled.
24. INCREASE IN FIRE INSURANCE PREMIUM. Lessee shall not keep, use, sell
or offer for sale in or upon the premises any article or service which may be
prohibited by the fire insurance policy maintained by Lessor. Lessee agrees to
pay any increase in Lessor's premiums for fire and extended coverage insurance
resulting from Lessee's use of the premises or from the type of merchandise sold
by Lessee in the premises, whether or not Lessor has consented to the same. In
determining whether increased premiums are the result of Lessee's use of the
premises, a schedule, issued by the organization making the insurance rate on
the premises, showing the various components of such rate, shall be conclusive
evidence of the several items and charges which make up the fire insurance rate
on the premises. In the event Lessee's occupancy causes any increase of premium
for the fire and/or casualty rates on the premises, Lessee shall pay the
additional premium on the fire and/or casualty insurance policies by reason
thereof. The Lessee also shall pay, in such event, any additional premium on the
rent insurance policy that may be carried by the Lessor for its protection
against rent loss through fire. Bills for such additional premiums shall be
rendered by Lessor to Lessee at such times as Lessor may elect and shall be due
from, and payable by, Lessee when rendered as Additional Rent.
25. INDEMNIFICATION. Lessee hereby agrees to indemnify and hold Lessor
and Lessor's agents and employees harmless from any and all claims, damages,
liabilities or expenses arising out of (a) Lessee's use of the Premises or the
shopping center, (b) any and all claims arising from any breach or default in
the performance of any obligation of Lessee and/or (c) any act, omission or
negligence of Lessee, its agents or employees. Lessee further releases Lessor
and Lessor's agents and employees from liability for any damages sustained by
Lessee or any other person claiming by, through or under Lessee due to the
Premises, the shopping center, or any part
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 7
<PAGE> 8
thereof or any appurtenances thereto becoming out of repair, or due to the
happening of any event including, but not limited to, any damage caused by
water, snow, windstorm, tornado, gas, steam, electrical wiring, sprinkler
system, plumbing, heating and air conditioning systems and from any acts or
omissions of co-lessees or other occupants of the shopping center. Lessor and
Lessor's agents and employees shall not be liable for any damage to or loss of
Lessee's personal property, inventory, fixtures or improvements, from any cause
whatsoever except the affirmative acts of proven gross negligence of Lessor, and
then only to the extent not covered by insurance required to be obtained by
Lessor in accordance with this Lease.
26. DAMAGE AND DESTRUCTION. (a) In the event the leased premises are
damaged or destroyed by fire, explosion or other casualty to a lesser degree
than 25% of the cost of replacement of the leased premises, then the premises
shall be repaired by Lessor within a reasonable period of time at Lessor's
expense, provided that Lessor shall not be obligated to expend for such repair
an amount in excess of the insurance proceeds attributable to the premises
which are recovered as a result of such damage and Lessor shall not be required
to repair or replace Lessee's stock in trade, fixtures, furniture, furnishings,
floor coverings and equipment. (b) In the event of damage by fire, explosion or
other casualty and (i) Lessor is not required to repair as hereinabove
provided, (ii) 25% or more of the replacement cost of the premises shall be
damaged, (iii) the building of which the premises are a part is damaged to the
extent of 25% or more of the replacement cost or (iv) the buildings (taken in
the aggregate) in the shopping center shall be damaged to the extent of 25% or
more of the replacement cost, then, in any of such events, Lessor may elect
either to repair or rebuild the premises or the building, or to terminate this
Lease upon giving notice of such election in writing to Lessee Within ninety
(90) days after the occurrence of the event causing the damage. If the
casualty, repairing, or rebuilding shall render the premises untenable, in
whole or in part, and the damages shall not have been due to the default or
neglect of Lessee, a proportionate abatement of the Minimum Rent shall be
allowed from the date when the damage occurred until the date Lessor completes
its work, said proportion to be computed on the basis of the relation which the
gross square foot area of the space rendered untenable bears to the Floor Area
of the Premises.
The provisions of this paragraph with respect to repair by Lessor shall be
limited to such repair as is necessary to place the premises in substantially
the same condition as when possession was delivered by Lessor, reasonable wear
and tear excepted. Promptly following such repair, Lessee shall, at Lessee's
expense, perform any work required to place the premises in the condition as
required by Lessee prior to the term of the Lease and Lessee shall restore,
repair or replace its stock in trade fixtures, furniture, furnishings, floor
coverings and equipment and, if Lessee has closed, Lessee shall promptly reopen
for business.
27. CONDEMNATION. If the whole of the premises, or so much thereof as to
render the balance unusable by Lessee, shall be taken under power of eminent
domain, or otherwise transferred in lieu thereof, or if any part of the
shopping center is taken and its continued operation is not, in Lessor's sole
opinion, economical, this Lease shall automatically terminate as of the date
possession is taken by the condemning authority. No award for any total or
partial taking shall be apportioned, and Lessee hereby unconditionally assigns
to Lessor any award which may be made in such taking or condemnation. In the
event of a partial taking which does not result in the termination of this
Lease, base rent and additional rent shall be proportionately reduced according
to the part of the premises remaining usable by Lessee.
All compensation awarded or paid for any taking or acquiring under the power or
threat of eminent domain, whether for the whole or a part of the premises or
shopping center, shall be the property of Lessor, whether such damages shall be
awarded as compensation for diminution in the value of the leasehold or to the
fee of the premises or otherwise, and Lessee hereby assigns to Lessor all of the
Lessee's right, title, and interest in and to any and all such compensation;
provided, however, that Lessor shall not be entitled to any award specifically
made to Lessee for the taking of Lessee's trade fixtures, furniture or leasehold
improvements to the extent initially paid for by Lessee.
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28. DEFAULT AND REMEDIES. In the event that Lessee (a) fails to pay all
or any portion of the base rent, additional rent or any other sum due from
Lessee hereunder when due; (b) fails to cease all conduct prohibited hereby
immediately upon receipt of written notice from Lessor; (c) fails to take
actions in accordance with the provisions of written notice from Lessor to
remedy Lessee's failure to perform any of the terms, covenants and conditions
hereof, (d) fails to continuously conduct business in the premises as herein
required; (e) commits an act in violation of this Lease which Lessor has
previously notified Lessee to cease more than once in any year; (f) becomes
bankrupt, insolvent or files any debtor proceeding, takes or has taken against
it any petition of bankruptcy; takes action or has action taken against it for
the appointment of a receiver for all or a portion of Lessee's assets; files a
petition for a corporate reorganization; makes an assignment for the benefit of
creditors, or if in any other manner Lessee's interest hereunder shall pass to
another by operation of law (any or all of the occurrences in this said
Paragraph 28(f) shall be deemed a default on account of bankruptcy for the
purposes hereof and such default on account of bankruptcy shall apply to and
include any Guarantor of this Lease); (g) commits waste to the premises; or (h)
is otherwise in breach of Lessee's obligations hereunder and shall not have
cured same within ten (10) days following written notice from Lessor; then
Lessee shall be in default hereunder and Lessor may, at its option and without
notice to Lessee, terminate Lessee's right to possess of the premises and
without terminating this Lease re-enter and resume possession of the premises
and/or declare this Lease terminated, and may thereupon, in either event,
remove all persons and property from the premises, with or without resort to
process of any court, either by force or otherwise. Notwithstanding such
re-entry by Lessor, Lessee hereby agrees to indemnify and hold Lessor harmless
from any and all loss or damage which Lessor may incur by reason of the
termination of this Lease and/or Lessee's right to possession hereunder. In no
event shall Lessor's termination of this Lease and/or Lessee's right to
possession of the premises abrogate Lessee's agreement to pay rent and any
other charges due hereunder for the full term hereof. Following re-entry of the
premises by Lessor, Lessee shall continue to pay all such rent and any other
charges as same become due under the terms of this Lease together with all
other expenses incurred by Lessor in regaining possession until such time, if
any, as Lessor relets same and the premises are occupied by such successor, it
being understood that Lessor shall have no obligations to mitigate its damages
by reletting the premises. Upon reletting, sums received from such new lessee
by Lessor shall be applied first to payment of costs incident to reletting; any
excess shall then be applied to any indebtedness to Lessor from Lessee other
than for base rent and additional rents and any excess shall then be applied to
the payment of base rent and additional rent due and unpaid. The balance, if
any, between all amounts to be received hereunder and sums received by Lessor
on reletting, shall be paid by Lessee to Lessor in full at such times as may be
specified in a notice from Lessor to Lessee. Lessee shall have no right to any
proceeds of reletting that remain following application of same in the manner
set forth herein. In addition to Lessor's rights and remedies as specified
above, Lessor shall, in the event of Lessor's default, also have the right to
accelerate the rent for the balance of the Lease Term and, upon Lessor's
election, the same shall be immediately due and payable by Lessee to Lessor.
29. RIGHTS AND REMEDIES. The various rights and remedies herein granted
to Lessor pursuant to this Lease shall be cumulative and in addition to any
others Lessor may be entitled to by law or in equity, and the exercise of one
or more rights or remedies shall not impair Lessor's right to exercise any
other right or remedy. In all events, Lessor shall have the right, upon notice
to Lessee, to cure any breach by Lessee at Lessee's sole cost and expense, and
Lessee shall reimburse Lessor for such expense upon demand.
30. BANKRUPTCY. If Lessor shall not be permitted to terminate this Lease
as hereinabove provided because of the provisions of Title 11 of the United
States Code relating to Bankruptcy, as amended ("Bankruptcy Code"), then
Lessee, as a debtor in possession or any trustee for Lessee agrees promptly,
within no more than fifteen (15) days following request by Lessor to the
Bankruptcy Court, to assume or reject this Lease and Lessee on behalf of itself
and any trustee agrees not to seek or request any extension or adjournment of
any application to assume or reject this Lease by Lessor with such Court. In
such event, Lessee or any trustee for Lessee may only
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assume this Lease if (a) it cures or provides adequate assurance that the
trustees will promptly cure any default hereunder, (b) compensates or provides
adequate assurance that the trustees will promptly compensate Lessor for any
actual pecuniary loss to Lessor resulting from Lessee's defaults, and (c)
provides adequate assurance of performance during the fully stated term hereof
of all of the terms, covenants, and provisions of this Lease to be performed by
Lessee. In no event after the assumption of this Lease shall any then-existing
default remain uncured for a period in excess of the earlier of ten (10) days or
the time period set forth herein. Adequate assurance of performance of this
Lease as set forth hereinabove shall include without limitation, adequate
assurance (1) of the source of rent reserved hereunder, (2) the assumption of
this Lease will not breach any provision hereunder. In the event of a filing of
a petition under the Bankruptcy Code, Lessor shall have no obligation to provide
Lessee with any services or utilities as herein required, unless Lessee shall
have paid and be current in all payments of Operating Costs, utilities or other
charges therefor.
31. ASSIGNMENT AND SUBLETTING. Lessee acknowledges that Lessee's
agreement to operate in the premises for the permitted use set forth herein
before set out for the fully stated term hereof was a primary inducement and
precondition to Lessor's agreement to lease the premises to Lessee.
Accordingly, Lessee's interest in the premises shall be limited to the use and
occupancy thereof in accordance with the provisions hereof and shall be
nontransferable. Any attempts by Lessee to sublet, in whole or in part, the
premises or to sell, assign, lien, encumber or in any manner transfer this
Lease or any interest therein shall constitute a default hereunder, as shall
any attempt by Lessee to assign or delegate the management or to permit the use
or occupancy of the premises or any part hereof by anyone other than Lessee.
Lessor and Lessee acknowledge and agree that the foregoing provisions have been
freely negotiated by the parties hereto and that Lessor would not have entered
into this Lease without Lessee's consent to the terms of this Section. Any
attempt by Lessee to sublet all or any portion of the premises, to encumber
same, or to in any manner transfer, convey, assign Lessee's interest therein,
allow the use or management thereof, shall be void ab initio. Should Lessee
request Lessor's consent to any assignment, subletting or other transfer, it is
agreed that Lessor's consent shall be in Lessor's sole and absolute discretion
and may be arbitrarily and capriciously withheld. Notwithstanding the above,
Lessee may assign without Owner's prior written consent to: (1) any party
controlling, controlled by or under common control with Lessee; (2) to any
party which acquires rights to Lessee's operating licenses or city franchise or
substantially all of the assets of Lessee; (3) to a financial institution for
purposes of securing indebtedness related to Lessee's communications system,
provided, however, that any interest acquired by a financial institution in
Lessee's interest under this lease shall be fully subject to the subordination
provisions of Paragraph 38. Nothing in this Lease shall prevent Lessee from
changing its corporate name or to advertise or offer services on the premises
under a trade or service name.
32. RIGHT OF ENTRY. Lessor or Lessor's agents and employees shall have
the right to enter the premises at all times to examine the same, to show them
to prospective purchasers or lessees of the building or shopping center, and to
make such repairs, alterations, improvements or additions as Lessor may deem
necessary or desirable, and any such entry shall not be deemed an eviction of
Lessee. Lessor shall be allowed to take all material and upon the premises that
may be required for any repairs, alterations, additions or improvements without
the same constituting an eviction of Lessee in whole or in part and the rent
shall in no way abate while said repairs, alterations, improvements, or
additions are being made, by reason of loss or interruption of business of
Lessee, or otherwise. During the six months prior to the expiration of the
Lease Term or any renewal term, Lessor may exhibit the premises to prospective
lessees or purchasers, and place upon the premises the usual notices "For
Lease" or "For Sale", which notices Lessee shall permit to remain thereon
without molestation.
33. TAXES. Lessee shall be responsible for, and shall nay before
delinquency, all municipal, county or state taxes, levies and fees of every
kind and nature including, but not limited to, general or special assessments
assessed during the Lease Term against any personal property of any kind, owned
by or placed in, upon or about the premises by the Lessee and taxes assessed on
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the basis of Lessee's occupancy thereof including, but not limited to, taxes
measured by rents due from Lessee hereunder.
34. HAZARDOUS SUBSTANCES. The term "Hazardous Substances", as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals
known to cause cancer or reproduction toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and
petroleum products, and substances declared to be hazardous or toxic under any
law or regulation now or hereafter enacted or promulgated by any governmental
authority.
a. LESSEE'S RESTRICTIONS. Lessee shall not cause or permit
to occur:
i. Any violation of any federal, state, or local law,
ordinance, or regulation now or hereafter enacted, related
to environmental conditions on, under or about the Premises
or arising from Lessee's use or occupancy of the Premises,
including but not limited to, soil and ground water
conditions; or
ii. The use, generation, release, manufacture, refining,
production, processing, storage or disposal of any
Hazardous Substance without Lessor's prior written consent,
which consent may be withdrawn, conditioned, or modified by
Lessor in its sole and absolute discretion in order to
insure compliance with all applicable Laws (hereinafter
defined), as such Laws may be enacted or amended from time
to time.
b. ENVIRONMENTAL CLEANUP
i. Lessee shall, at Lessee's own expense, comply with all
laws regulating the use, generation, storage,
transportation or disposal of Hazardous Substances ("Law").
ii. Lessee shall, at Lessee's own expense, make all
submissions to provide all information required by and
comply with all requirements of all governmental
authorities (the "Authorities") under the Laws.
iii. Should any Authority or any third party demand that a
cleanup plan be prepared and a cleanup be undertaken
because of any deposit, spill, discharge or other release
of Hazardous Substances that occurs during the term of this
Lease, at or from the Premises or which arises at any time
from Lessee's use or occupancy of the Premises, then Lessee
shall, at Lessee's own expense, prepare and submit the
required plans and all related bonds and other financial
assurances and Lessee shall carry out all such cleanup
plans.
iv. Lessee shall promptly provide all information regarding
the use, generation, storage, transportation or disposal of
Hazardous Substances that is requested by Lessor. If Lessee
fails to fulfill any duty imposed under this Paragraph
34(b) within thirty (30) days following its request, Lessor
may proceed with such efforts and in such case, Lessee
shall cooperate with Lessor in order to prepare all
documents Lessor deems necessary or appropriate to
determine the applicability of the Laws to the Premises and
Lessee's use thereof and for compliance therewith and
Lessee shall execute all documents promptly upon Lessor's
request and any expenses incurred by Lessor shall be
payable by Lessee as Additional Rent. No such action by
Lessor and no attempt made by Lessor to mitigate damages
under any Law shall constitute a waiver of any of Lessee's
obligations under this Paragraph 34(b).
35. NOTICE BY LESSEE. Lessee shall give immediate telephone or
telegraphic notice to Lessor in case of fire, casualty, or accidents in the
premises or in the building of which the premises are a part of or defects
therein and shall promptly thereafter confirm such notice in writing.
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36. ATTORNMENT. Lessee shall attorn and be bound to any of Lessor's
successors under all the terms, covenants and conditions of this Lease for the
balance of the remaining term. Lessor shall have the right to sell, transfer
and assign Lessor's interest in this Lease Agreement and to sell the shopping
center as a whole without affecting this Lease Agreement.
37. SUBORDINATION. This Lease shall be subordinate to the lien of any
mortgage, deed of trust or security deed or the lien resulting from any other
method of financing or refinancing now or hereafter in force against all or any
portion of the shopping center, including any buildings hereafter placed upon
the land of which the premises are a part, and including any and all advances
to be made under such mortgages, and all renewals, modifications, extensions,
consolidations and replacements thereof: Such lien being hereinafter sometimes
referred to as "mortgage" and such lien holder being sometimes referred to as a
"mortgagee". The aforesaid provisions shall be self-operative and no further
instrument of subordination shall be required to evidence such subordination.
Lessee covenants and agrees to execute and deliver upon demand such further
documents as Lessor or any mortgagee or proposed mortgagee shall desire to
evidence the subordination of this Lease to any such lien.
38. ESTOPPEL CERTIFICATE. Within ten (10) days after request therefor
by Lessor, Lessee shall deliver an estoppel certificate in recordable form to
any proposed mortgagee or purchaser (actual or proposed), or to Lessor,
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the Lease is in full force and effect as
modified, and stating the modifications), that there are no defenses or offsets
thereto (or stating those claimed by Lessee), the rental commencement date and
the dates to which rents have been paid.
39. SURRENDER OF PREMISES. At the expiration or earlier termination of
this Lease, Lessee shall surrender the premises to Lessor broom clean and in
the same condition as when tendered originally to Lessee by Lessor, reasonable
wear and tear and insured casualty excepted. Lessee shall promptly repair any
damage to the premises caused by the removal of any furniture, trade fixtures
or other personal property placed in the premises.
40. HOLDING OVER. Should Lessee with Lessor's written consent, hold over
at the end of the term, Lessee shall become a Lessee at will and any such
holding over shall not constitute an extension of this Lease. During such
holding over, Lessee shall pay the rent in effect as of the expiration date of
the Lease Term, or as the parties otherwise agree. If Lessee holds over at the
end of the term without Lessor's written consent, Lessee shall pay Lessor as
liquidated damages, a sum equal to twice the then effective rent until Lessee
surrenders possession in accordance with the provisions hereof. Nothing
contained herein shall be interpreted to grant permission to Lessee to
holdover, to continue in possession or to deprive Lessor of any rights and
remedies with respect thereto.
41. GUARANTEE. INTENTIONALLY OMITTED
42. WAIVER. The waiver by Lessor of any breach of any term, covenant or
condition herein contained shall not be deemed to nullify such term, covenant or
condition or to waiver any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Lessor shall not be deemed to be a waiver of any preceding breach
by Lessee of any term, covenant or condition of this Lease, other than the
failure of Lessee to pay the particular rent so accepted, regardless of Lessor's
knowledge of a preceding breach at the time of such acceptance of rent. No
covenant, term or condition of this Lease shall be deemed to have been waived by
Lessor, unless such waiver be in writing by Lessor.
43. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of
a lesser amount than the rent due as herein stipulated shall be deemed to be
other than on account of the earliest payment due, nor shall any endorsement or
statement on any check or any letter
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accompanying any check or payment as rent be deemed an accord and satisfaction,
and Lessor may accept such check or payment without prejudice to Lessor's right
to recover the balance of such rent or pursue any other remedy in this Lease
provided.
44. NO PARTNERSHIP. Lessor does not, in any way or for any purpose,
become a partner of Lessee in the conduct of its business, or otherwise, or
joint adventurer or a member of a joint enterprise with Lessee, as a result of
this Lease Agreement or the relationship established as a result hereof.
45. FORCE MAJEURE. In the event Lessor is delayed, hindered in or
prevented from doing or performing any act or thing required hereunder by
reason of strikes, lockouts, casualties, Acts of God, labor troubles, inability
to procure materials, financing, failure of power, governmental laws or
regulations, riots, insurrection, war or other causes beyond the reasonable
control of Lessor, then Lessor shall not be in default and the Lessor shall not
be liable or responsible for any such delays and the doing or performing of
such act or thing shall be excused for the period of the delay and the period
for the performance by Lessor of any such act shall be extended for a period
equivalent to the period of such delay.
46. NOTICES. Any notice, demand, request, report or other instrument
which may be or are required to be given under this Lease shall be delivered
personally or sent by either United States certified mail postage prepaid or
expedited mail service and shall be addressed
a. if to Lessor to the following:
ATTENTION:
Southern Boulevard Corporation
Attn: REAL ESTATE INVESTMENTS
P.O. Box 11000
Montgomery, Alabama 36191-0001
b. if to Lessee to the following:
ATTENTION:
Mr. Bob Madsen
Montgomery Cablevision & Entertainment, Inc.
3173 Taylor Road
Montgomery, AL 36116
Notices shall be effective upon delivery unless delivery is refused or cannot be
made, in which event, notice shall be effective on mailing.
47. CAPTIONS AND SECTION NUMBERS. The captions, headings, section
numbers, and index appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such section or articles of this Lease nor in any way affect this
Lease.
48. TENANT/LESSEE DEFINED, USE OF PRONOUNS. The words "Tenant" and
"Lessee" shall be deemed and taken to mean each and every person or party
mentioned as a Tenant/Lessee herein, by the same one or more; and if there
shall be more than one Tenant/Lessee, any notice required or permitted by the
terms of this Lease may be given by or to any one thereof, and shall have the
same force and effect as if given by or to all thereof. The use of the neuter
singular pronouns to refer to Lessor or Tenant/Lessee shall be deemed a proper
reference even though Lessor or Tenant/Lessee may be an individual, a
corporation, or a group of two or more individuals or corporations. The
necessary grammatical changes required to make the provisions
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of this Lease apply in the plural sense where there is more than one Lessor or
Tenant/Lessee and to either corporations, association, partnerships, or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
49. BROKER'S COMMISSION. Lessor in consideration of the services by
leasing agent hereunder, namely ALFA Realty, Inc., agent for Lessor, does
hereby agree to pay said agent for their service rendered in effectuating this
lease agreement. One half to be paid when this lease is signed by both the
Lessor and Lessee and the remainder when the Lessee begins paying rent.
50. PARTIAL INVALIDITY. If any term, covenant or condition 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, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
51. EXECUTION OF LEASE. The submission of this Lease for examination does
not constitute a reservation of or option for the premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by Lessor
and Lessee. If Lessee is a corporation, Lessee shall furnish Lessor with such
evidence as Lessor reasonably requires to evidence the binding effect on Lessee
of the execution and delivery of this Lease.
52. RECORDING AND SHORT FORM LEASE. Lessee agrees not to record this
Lease. However, Lessee and Lessor, upon request of either, agree to execute and
deliver a memorandum or so-called "short form" of this Lease in recordable form
for the purpose of recordation at the other's expense. Said memorandum or short
form of this Lease shall describe only the parties, the premises and the Lease
Term and shall incorporate this Lease by reference.
53. APPLICABLE LAW. The Laws of the State of Alabama shall govern the
validity, performance and enforcement of this Lease. The parties agree that no
estate in the leased premises or the shopping center in general, capable of
being transferred by Lessee, has been granted to Lessee under this Lease.
54. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement.
55. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Lease shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, executors, successors and
assigns.
56. SURVIVAL OF OBLIGATIONS. The provisions of this Lease with respect
to any obligation of Lessee to pay any sum owing or to perform any act after
the expiration or other termination of this Lease shall survive the expiration
or other termination of this Lease.
57. REPRESENTATIONS. Lessee acknowledges that neither Lessor nor Lessor's
agents, employees or contractors have made any representations or promises with
respect to the premises, the shopping center or this Lease except as expressly
set forth herein.
58. LESSOR'S LIABILITY. In the event of any alleged default of Lessor,
Lessee shall not seek to secure any claim for damages or indemnification by any
attachment, levy, judgment, garnishment or other security proceedings against
any property of the Lessor other than Lessor's equity in the shopping center,
it being agreed and understood, however, that the maximum recovery by Lessee
against Lessor shall be in an amount equal to Lessor's equity interest in the
shopping center. It is understood and agreed that in no event shall Lessee have
any right to levy execution against any property of Lessor other than its
interest in the shopping center. Such right of execution shall be subordinate
and subject to any mortgage or other encumbrance upon the shopping center.
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In the event of the sale or other transfer of Lessor's right, title, and
interest in the premises or the shopping center, Lessor shall be released from
all liability and obligations hereunder accruing after the date of such sale or
other transfer. Lessor, as used herein, shall mean any successor in interest,
corporation, individual, joint venture, tenancy in common, firm or partnership,
general or limited.
59. ENTIRE AGREEMENT. This Lease, including the Exhibits attached hereto
and made a part hereof, sets forth all the covenants, promises, agreements,
conditions and understandings between Lessor and Lessee concerning the premises
and the shopping center and there are no covenants, promises, agreements,
conditions or understandings, either oral or written between them other than as
set forth herein. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Lessor or Lessee unless reduced to writing and signed by them. Lessor and
Lessee agree that the fact either one of them may have drafted this Lease or
any portion thereof shall not be used to construct such provisions against its
author.
60. FIRST RIGHT OF REFUSAL. Lessor grants to Lessee the first right of
refusal on any adjoining space in Units C-4 or C-5 which shall become available
for rent during the term of this Lease. Any such adjoining space leased by
Lessee shall be for the balance of the lease term provided herein, including
any option term, if exercised. Upon such an expansion by Lessee all other terms
and conditions as are herein provided shall remain unmodified and in full force
and effect, except that the base rent for such added space shall be at a rental
rate mutually agreed to by both Lessor and Lessee, and shall be adjusted by the
Consumer Price Index for each lease year thereafter ad is provided in Paragraph
5.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement on the
day and year first above written.
WITNESS: LESSOR: SOUTHERN BOULEVARD
CORPORATION
/s/ Susan Wood BY: /s/ Kevin L. Ketzler
- --------------------------- ----------------------------------------
ITS: Asset Manager, Commercial Properties
---------------------------------------
WITNESS: LESSEE: CYBERNET HOLDING d/b/a/
MONTGOMERY CABLEVISION &
ENTERTAINMENT, INC.
/s/ Laura Pittman BY: /s/ Taylor Nipper
- --------------------------- ----------------------------------------
ITS: Vice President
---------------------------------------
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EXHIBIT A
[A plat and site plan of the Sturbridge Village premises appears here]
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EXHIBIT "B"
STURBRIDGE VILLAGE SIGN REGULATIONS
A. This Sign Criteria is designed to insure continuity of signage within
the Center. The requirements contained herein are intended to provide
adequate exposure for the Lessee's merchandising and identification
while maintaining the overall appearance critical to the success of
the Center.
B. Lessee is required to purchase his own signs and pay all costs for
installation and any electrical service connections (to the Lessor's
master metered service) as required.
C. Lessor reserves the right to review and approve or disapprove all
proposed signs and/or graphic treatments governed by these criteria
per the Lessor's interpretation of these criteria, and to require
revisions of any sign design which the Lessor judges not in
compliance.
D. The Criteria described below shall be followed and maintained during
the life of the Lease.
1. All signs must be fabricated as described below by a sign
contractor approved by the Lessor.
2. Each Lessee shall supply three (3) copies of scaled
drawings to the Lessor. The working drawings must
indicate the following:
a. The type and size of all lettering.
b. The location of the sign in relation to the store
facade.
c. Section through the sign to show its
construction.
d. Colors, finishes, and types of all materials.
e. Wattage, amperage, and light intensity.
f. Method of installation.
3. One (1) sign for each Lessee is permitted on the fascia.
4. The one (1) permitted sign is limited to the trading name
of the Lessee or may be a descriptive phrase or describe
work such as "Law Office" or "Dry Cleaners". No advertising
copy or slogans are permitted, i.e., "Shoes For the Whole
Family".
5. Only signs that have individual interior-lighted letters
will be permitted. Signs with exposed neon tubing or
exposed lamps; any exposed sign illumination or illuminated
sign cabinets; modules or "box" signs; signs of the
flashing, rotating, moving, blinking or animated type are
not permitted.
6. Maximum height of a single line or letter is 30";
maximum height of two (2) lines is 36". In no instance will
the vertical measurement of logo and letters exceed 30".
7. Maximum length of a sign copy of 80% of leased storefront.
8. Lessee may select any copy style, subject to approval of
the Lessor/owner.
9. Printed signs on storefront or show windows are prohibited.
10. Painted signs on the exterior surface of any wall of the
Demises Premises are prohibited.
11. Paper, cloth or cardboard signs, stickers, banners or flags
are prohibited.
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 17
<PAGE> 18
12. No exposed raceways, ballast boxes or electrical
transformers will be permitted except as required by code.
However, if signs are being placed on brick facia then
raceways must be used.
13. Sign company names or stamps will be concealed if
permitted by code.
14. Only one sign for each Lessee will be permitted unless
otherwise approved by Lessor in writing.
15. Electrical connection for signs will be the responsibility
of the Lessee.
16. No roof mounted signs will be permitted.
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 18
<PAGE> 19
EXHIBIT "C"
LESSOR'S BUILDOUT OR CONSTRUCTION WORK
The following construction or buildout shall be performed by Lessor, at Lessor's
expense, prior to the effective date of this lease, or date of possession,
whichever shall occur first.
Construction is to be done in accordance with the plans as
specifications prepared by Butner and Associates, Architects, and as are
mutually agreed to by both Lessor and Lessee, as evidenced by their signatures
upon said plans and specifications.
Lessor shall expend Twenty Seven Thousand Eight Hundred Eighty Four
and 00/100 Dollars ($27,884.00) to complete construction of the Premises to
Lessor's standard finish. In addition Lessor shall contribute Twelve Thousand
and 00/100 Dollars ($12,000.00) towards Lessee's buildout of the Premises, all
other cost in excess of these amounts to be born by Lessee.
Lessor grants to Lessee license to install two underground cables for
cable television service to the Premises from points along the east right-of-way
of Taylor Road of Lessee's choosing, to a point within the Premises as required
by Lessee. Lessee shall bear all cost of said cable installation and shall
indemnify and hold Lessor harmless for any damages incurred in said cable
installation. Additionally, Lessee shall place the grounds of said Taylor Road
right-of-way and any portions of the grounds of the shopping center in a similar
condition to that as existed prior to said cable installation. Lessee
acknowledges that Lessor's license to install and maintain said underground
cable shall expire upon the termination of Lessee's tenancy within the shopping
center.
Sturbridge Village Lease. 1-24-97
Montgomery Cablevision & Entertainment, Inc.
Page 19
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<PAGE> 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:
Bill Morrow, President
310 West 8th Street
West Point, Ga. 31833
<PAGE> 6
Page 6
If to IFN:
IFN
Attention: Frank Wilcox
206 West 9th Street
West Point, Ga. 31833
With a copy to:
IFN
Attention: General Counsel
700 Boulevard South
Suite 101
Huntsville, AL 35802
(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.
<PAGE> 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/Dixie B. Noles By: /s/William E. Morrow
----------------- --------------------
Name: Dixie B. Noles Name: William E. Morrow
----------------- -------------------
Title: President & CEO
-------------------
INTERSTATE FIBERNET, INC.:
WITNESS:
/s/Stephanie Reese By: /s/ Frank Wilcox
------------------ ----------------
Name: Stephanie Reese Name: Frank Wilcox
---------------- -----------------
Title: VP OPNS
----------------
<PAGE> 1
EXHIBIT 10.16
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
TELECOMMUNICATIONS FACILITY
LEASE AND BANDWIDTH CAPACITY AGREEMENT
This Telecommunications Facility Lease and Capacity Agreement (the
"Agreement") is dated as of the 10th day of September, 1996 and is by and
between Troup EMC Communications, Inc., a Georgia corporation ("Troup"), and
CyberNet Holding, Inc., a Delaware corporation ("CyberNet").
RECITALS:
CyberNet, through its directly and indirectly wholly-owned subsidiary,
American Cable, Inc., is the owner and operator of an advanced broadband
telecommunications network that is currently being constructed (some portions of
which are complete) in Muscogee County and Harris County, Georgia (the "System")
in order to provide video services and other communications services to
subscribers. Troup seeks to construct system plant and to lease said plant to
CyberNet, and CyberNet wishes to provide bandwidth capacity on portions of its
System to Troup, subject to and in reliance upon the terms and conditions and
representations and warranties set forth in this Agreement.
AGREEMENTS:
Therefore, in consideration of the premises and the mutual covenants
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
PLANT LEASE TERMS
1.1 Troup shall: (a) at Troup's sole expense (including, without
limitation, engineering and design expenses), construct by the construction
completion dates set forth in Exhibit A broadband system plant segments, meeting
the specifications set forth in Exhibit B, in the area set forth in Exhibit A,
(b) at Troup's sole expense (including, without limitation, engineering and
design expenses) and as requested by CyberNet, construct by the construction
completion dates set forth in Exhibit A additional plant segment extensions
meeting the specifications set forth in Exhibit B, and (c) at CyberNet's
out-of-pocket cost, purchase from CyberNet the CyberNet System plant set forth
in Exhibit C. Collectively, the foregoing plant shall be referred to as the
"Troup Plant." Troup agrees that CyberNet shall have, in CyberNet's sole
discretion, the authority to select and hire design firm(s) to generate detailed
specifications applicable to the plant construction described in clauses (a) and
(b) of this section and to approve or reject any such specifications. Troup
shall obtain. at its sole expense (including, without limitation, pole
attachment fees), any and all rights of way reasonably necessary to complete the
plant construction set forth in clauses (a) and (b) of this section. Except as
set forth in Section
-1-
<PAGE> 2
1.2, CyberNet agrees to sell, at CyberNet's out-of-pocket cost, to Troup strand,
strand hardware, coaxial cables, fiber, fittings, network electronics, taps,
power supplies and any other equipment or hardware required by applicable
specifications to construct the Troup Plant (the "Equipment").
1.2 Upon completion of the construction of each mutually agreed upon
segment of the Troup Plant, CyberNet, as soon thereafter as reasonably possible
and at CyberNet's sole expense and direction, shall, integrate such segment into
the System, shall activate, sweep and balance such segment, and shall complete
any installations necessary for subscribers to be served from such segment,
except that if any such subscriber indicates that it wishes to purchase only
Energy Management Services (as defined below), Troup shall, at its sole expense,
provide all equipment, materials and labor necessary to complete the
installation of any such subscriber beyond the tap.
1.3 CyberNet shall have exclusive rights to lease each segment of the
Troup Plant during the term of this Agreement. CyberNet agrees to pay Troup
lease payments calculated in accordance with Section 1.4 of this Agreement (the
"Lease Payments"). Troup shall bill CyberNet quarterly, in arrears, for Lease
Payments as set forth in Exhibit D. CyberNet shall pay all invoices within 30
days after receipt thereof by CyberNet. Upon notice from Troup that a segment of
the Troup Plant is complete, CyberNet shall promptly conduct, at its sole cost
and expense, all performance testing and CLI testing. Upon CyberNet's
determination that such segment meets all applicable specifications, CyberNet
shall promptly notify Troup that CyberNet accepts such plant segment as of the
date the performance tests and CLI tests were complete. For the purposes of this
Agreement, the first day any segment of the Troup Plant is accepted by CyberNet
in accordance with this section shall be referred to as such segment's "Date of
Activation".
1.4 Troup shall calculate level Lease Payments with respect to each
segment of the Troup Plant by taking the [____________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_________________]. After the [_______________________] of each segment has
been fully amortized then the lease payments as to each such segment shall be
recalculated to reflect a [____________] annual rate of return on the amount of
the [_______________________] for that segment. The cost of any new and
additional plant built within any segment of the Troup Plant shall be added to
the [________________________] of that segment and the lease payment shall be
adjusted accordingly, after allowing for full amortization of the
[______________________] within the lease term then in effect and the
[___________] annual rate of return as contemplated hereunder. Equipment costs
and costs for existing plant acquired from CyberNet shall be the
[______________________________________________________________] for such
Equipment or plant, as the case may be. Labor rates shall be based upon the
rates for aerial and underground construction set forth in Exhibit E. CyberNet
shall promptly invoice Troup for all Equipment sold by CyberNet to Troup, and
Troup agrees to pay said invoices within thirty (30) days after the date of
receipt of said invoice by Troup.
-2-
<PAGE> 3
1.5 Except as set forth in Section 2.3 hereof, CyberNet shall be solely
responsible for all ongoing expenses associated with the operation and
maintenance of the Troup Plant accepted by it in accordance with the provisions
of Section 1.3 hereof; provided, however, that in the event of a Catastrophic
Event (as defined in Exhibit F) or in the event that any Troup Plant is damaged
or destroyed by the negligence of Troup or any of its employees, contractors,
subcontractors or agents, CyberNet shall. in its sole discretion, either (a)
repair or replace. as appropriate, the affected Troup Plant and require Troup to
reimburse promptly CyberNet for all costs and expenses incurred by CyberNet in
connection with such repairs or replacements. or (b) require Troup, at Troup's
sole cost and expense, to promptly repair or replace, as appropriate, the
affected Troup Plant. Subject to the foregoing, CyberNet agrees to maintain the
Troup Plant in good condition and repair, normal wear and tear excepted. Without
the prior written consent or Troup, CyberNet will make no alterations to the
Troup Plant other than alterations customarily associated with CyberNet's
operating and maintenance procedures or those standard or customary in the cable
television industry.
1.6 Troup retains title to the Equipment, and no right, title or
interest in the Equipment shall pass to CyberNet except as expressly set forth
herein. CyberNet: (a) shall not sell, assign, sublet, encumber any interest in
the Equipment, except that CyberNet may assign this agreement and its rights
hereunder upon 30 days prior written notice; (b) shall give prompt written
notice to Troup of any such encumbrance or of legal process of which CyberNet
has knowledge relating to the Equipment; and (c) shall, at CyberNet's sole
expense, protect and defend Troup's title and interest in the Equipment and
indemnify and hold Troup harmless from and against all losses incurred by Troup
by reason of CyberNet's breach of its obligations set forth in this Section 1.6.
1.7 CyberNet agrees to pay when due all use, excise and franchise
taxes, together with any fines, penalties or interest thereon, now or hereafter
imposed by any government entity, based upon Lease Payments or the Equipment or
the ownership, leasing, use, or possession thereof during the term of this
Agreement. CyberNet and Troup shall cooperate in taking all reasonable actions
necessary to minimize all such taxes. Unless Troup otherwise notifies CyberNet,
Troup will pay all property taxes on the Equipment to the appropriate taxing
authority, and CyberNet will reimburse Troup for all such payments promptly on
request. Any fees, taxes, or other charges paid by Troup upon failure of
CyberNet to make the payments required by this section shall, at Troup's demand,
become immediately due from CyberNet to Troup.
1.8 Troup shall promptly reimburse CyberNet for damages to facilities
of CyberNet that is caused by the negligence of Troup or resulting from Troup
Plant that does not meet the specifications set forth or referred to in Exhibit
B hereto.
1.9 Troup, for its own exclusive use and benefit, shall have the right
to install extra fibers in the Troup Plant or build in excess of the
specifications for the Troup Plant, with the incremental cost of installing the
additional fibers or building in excess of the specifications
-3-
<PAGE> 4
exclusively being borne by Troup. In no event shall any such cost be included in
the calculation of the Lease Payment or any other amount due from CyberNet
pursuant to this Agreement.
ARTICLE 2
USE OF TROUP PLANT BANDWIDTH BY TROUP
2.1 Troup shall have exclusive rights to offer Energy Management
Services (as defined in Section 2.2) via the Troup Plant to all potential
consumers capable of being served in a commercially reasonable manner by the
Troup Plant. CyberNet shall permit Troup to use exclusively
[_____________________] (the "Troup Band") of the total capacity of the Troup
Plant in order for Troup to provide Energy Management Services to consumers in
the area serviced by the Troup Plant. Troup shall not use the Troup Band to
provide any services other than Energy Management Services.
2.2 "Energy Management Services" shall mean those services typically
provided by electric utility companies to consumers, including, but not limited
to, (a) automatic meter reading, (b) outage notification, (c) tamper detection,
(d) time-of-use pricing, (e) remote connect/disconnect, (f) direct load control,
(g) remote security monitoring and (h) billing related thereto.
2.3 Troup shall be responsible for any and all costs associated with
providing Energy Management Services to consumers in the Troup Plant service
area, other than transport costs from Energy Management Services' customers to
the CyberNet headend.
2.4 Troup shall, at its own expense, locate all equipment, materials
and personnel necessary to provide the Energy Management Services in the Troup
Plant service area in space provided by Troup, except that CyberNet shall
provide Troup with sufficient space at the CyberNet headend building to
co-locate any Troup equipment reasonably required by Troup to transport a signal
compatible with the Troup Band between the CyberNet headend and such Troup
space. CyberNet further agrees to permit authorized and designated Troup
representatives to enter the CyberNet headend building at reasonable hours upon
2 hours notice to perform necessary service work and to inspect any and all
Troup equipment. For purposes of this Section, notice shall be given by calling
the General Manager of American Cable, Inc. (or his designee) at (706) 569-8943
and by promptly confirming such call with a facsimile to (706) 569-8051.
2.5 Troup shall retain an option to lease, at market rates, [_____] of
capacity on the System, on a non-exclusive basis, to provide Energy Management
Services outside the Troup Plant service area; provided, however, that this
option may only be exercised by Troup when there is sufficient capacity on the
CyberNet System as determined by CyberNet. CyberNet and Troup will agree to use
commercially reasonable best efforts to enter into an agreement upon Troup's
request to exercise its options.
-4-
<PAGE> 5
ARTICLE 3
TERM EXTENSIONS TERMINATION
3.1 The term of this Agreement shall commence upon the date first above
written (the "Commencement Date"), and unless earlier terminated in accordance
with Section 3.2, 3.3, or 8.2, shall continue until 12:01 A.M. on the 10th
anniversary of the Activation Date of the last segment of the Troup Plant to be
accepted by CyberNet (the "Initial Term"). This Agreement shall be automatically
extended for up to 2 successive renewal terms (each, a "Renewal Term") of 5
years each upon written notice from CyberNet to Troup given no later than 120
days prior to the expiration of the Initial Term or the first Renewal Term, as
the case may be.
3.2 This Agreement may be terminated by either party, with cause as
defined in this Section 3.2, at any time, upon 90 days' prior written notice to
the other party. Such notice shall set forth a description of the cause for
termination and provide the non-terminating party an opportunity to cure such
cause within 60 days after the date of delivery of such notice. If such cure
occurs within such 60-day period, this Agreement shall remain in full force and
effect as if such written notice of termination had not been given. If such cure
does not occur within such 60-day period, then the termination shall be
effective at 11:59 P.M. E.S.T. on the 90th day after the date of delivery of
such notice to the nonterminating party. For purposes of this Section, "with
cause" shall be deemed to mean: (i) a material breach of this Agreement by the
nonterminating party; (ii) the failure of the non-terminating party generally to
pay its debts as such debts become due, the admission by such party in writing
of its inability to pay its debts as such debts become due, or the making by
such party of any general assignment for the benefit of creditors; (iii) the
commencement by the non-terminating party of any case, proceeding, or other
action seeking reorganization, arrangement, adjustment, liquidation dissolution
or composition of it or its debts under any law relating to bankruptcy,
insolvency, or reorganization, or relief of debtors, or seeking appointment of a
receiver, trustee, custodian, or other similar official for it or for all or any
substantial part of its property; or (iv) the commencement of any case,
proceeding or other action against the non-terminating party seeking to have any
order for relief entered against such party as debtor, or seeking reorganization
arrangement, adjustment, liquidation, dissolution or composition of such party
or its debts under any law relating to bankruptcy, insolvency, reorganization,
or relief of debtors, or seeking appointment of a receiver, trustee, custodian,
or other similar official for such party or for all or any substantial part of
the property of such party, and (I) such party shall, by any act or omission,
indicate its consent to, approval of, or acquiescence in such case, proceeding
or action, or (II) such case, proceeding or action results in the entry of an
order for relief which is not fully stayed within seven business days after the
entry thereof; or (III) such case, proceeding, or action remains undismissed for
a period of thirty (30) days or more or is dismissed or suspended only pursuant
to Section 305 of the United States Bankruptcy Code or any corresponding
provision of any future United States Bankruptcy law.
3.3 Upon 30 days' prior notice, either party shall have the right,
without liability to the other, to terminate this Agreement if any term
contained herein is found to be unlawful by order of the highest court of
competent jurisdiction to which the matter is appealed or of any other local,
state or federal government authority of competent jurisdiction.
-5-
<PAGE> 6
ARTICLE 4
OTHER COVENANTS, REPRESENTATIONS & WARRANTIES
4.1 Each party shall promptly notify the other party of any action or
proceeding by or before any governmental authority pending or threatened that
might restrain, prohibit or invalidate the transactions contemplated by this
Agreement within five business days after such party learns of such an action or
proceeding. Each party shall cooperate with the other party in connection with
any such action or proceeding and shall permit the other party to participate,
at such other party's sole expense, in any such pending or threatened action or
proceeding.
4.2 Each party shall keep, or cause to be kept, full and complete
records, accounts and supporting documentation with respect to the invoices sent
by it to the other party. Each party shall, at its own expense, have access to
such records, accounts and supporting documentation of the other party at any
reasonable time during normal business hours, upon 7 days' prior written notice
of any proposed exercise of such right of access. The foregoing obligations
pursuant to this paragraph shall apply only to records, accounts and supporting
documentation which deal with invoices prepared on behalf of a party pursuant to
the terms of this Agreement (and shall not apply to records and accounts which
relate to other aspects of the operations and business of such party). Each
party, at its sole cost (except as set forth in the next sentence), shall have
the right to audit the calculations by the other party in determining all
amounts owed to such party hereunder. If such party determines pursuant to such
audit, and presents the other party with documentation reasonably satisfactory
to such other party demonstrating, that such amounts for any quarter or any
Equipment, as the case may be, vary from those calculated by the calculating
party pursuant to this Agreement, such party shall pay, or such other party
shall refund, as appropriate, any difference in such amounts due to such
variance, and if such variance is greater than 5%, the calculating party shall
pay all reasonable out-of-pocket costs actually incurred by such party in
connection with such audit.
4.3 Each party hereby represents and warrants to the other party hereto
as follows:
(a) The execution, delivery and performance by such party of this
Agreement and all other agreements and documents contemplated hereby, the
fulfillment of and the compliance with the respective terms and provisions
hereof and thereof, and the consummation by such party of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate or partnership action of such party (which authorization has not been
modified or rescinded and is in full force and effect), and will not: (a)
conflict with, or violate any provision of, any term or provision of the
organizational documents of such party or (b) conflict with, or result in any
breach of, or constitute a default under, any Agreement to which such party is a
party or by which such party is bound. No other corporate or partnership action
of such party is necessary for such party to enter into this Agreement and all
other agreements and documents contemplated hereby and to consummate the
transactions contemplated hereby and thereby.
(b) This Agreement constitutes a valid and binding obligation of
such party, enforceable in accordance with its terms. Each agreement or document
to be executed by such
-6-
<PAGE> 7
party pursuant hereto, when executed and delivered in accordance with the
provisions hereof, shall be a valid and binding obligation of such party,
enforceable in accordance with its terms.
(c) Such party knows of no action or proceeding by or before any
governmental authority pending or threatened that might restrain, prohibit or
invalidate the transactions contemplated by this Agreement.
ARTICLE 5
WARRANTY; LIMITATION OF LIABILITY
5.1 The quality of the Troup Plant (excluding the Equipment) leased
hereunder shall be consistent with the specifications set forth or referred to
in Exhibit A hereto.
5.2 EXCEPT AS EXPRESSLY STATED IN SECTION 1.8 OR IN THIS ARTICLE 5, IN
NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER PARTY OR THE OTHER
PARTY'S CUSTOMERS OR CLIENTS OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY RESPECT,
INCLUDING, WITHOUT LIMITATION, FOR ANY DAMAGES, EITHER DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, PUNITIVE, OR ANY OTHER DAMAGES, OR
FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF MISTAKES,
ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, OR DELAYS, INCLUDING THOSE WHICH
MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES, RELATING TO THIS AGREEMENT
OR THE OBLIGATIONS OF SUCH PARTY PURSUANT TO THIS AGREEMENT. EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE TROUP BAND, THE TROUP PLANT OR
THE SERVICES PROVIDED HEREUNDER OR AS TO ANY OTHER MATTER.
ARTICLE 6
TRADE NAMES
Except as set forth in Section 7.2 hereof, neither party shall, without
the other party's prior written consent: (i) use the other party's name in
promotional, advertising or other materials, or (ii) use the other party's
logos, trade marks, capacity marks, or any variations thereof in any of its
promotional, advertising or other materials.
ARTICLE 7
CONFIDENTIALITY AND PUBLICITY
7.1 Each party agrees to provide to the other party such information as
shall be reasonably necessary to permit the other party to perform its
obligations hereunder. Each party hereto shall identify as confidential
information ("Confidential Information") all information
-7-
<PAGE> 8
provided by such party to the other party which is considered by such providing
party to be confidential, proprietary information. Except as set forth in
Section 7.2, neither party hereto will, without the prior written consent of the
party providing such Confidential Information, (i) use any portion of such
Confidential Information for any purpose other than performance pursuant to this
Agreement, or (ii) disclose any, portion of such Confidential Information to any
person or entity other than the officers and employees of such party and its
affiliates (as defined in Section 8.15) who reasonably need to have access to
the Confidential Information for purposes of performance under this Agreement
and who are bound by appropriate confidentiality agreements and commitments
consistent with those utilized by such party in protecting its own confidential
information. The obligations of a recipient party with respect to Confidential
Information shall remain in effect except to the extent that: (a) such
Confidential Information becomes generally available to the public other than as
a result of unauthorized disclosure by the recipient or persons to whom such
recipient has made the information available; (b) such Confidential Information
has been released without restriction by the party providing the Confidential
Information to another person or entity; (c) the recipient can demonstrate that
such Confidential Information was received by such recipient on a
non-confidential basis, prior to receipt from the other party, from a third
party lawfully possessing and lawfully entitled to disclose such information; or
(d) such Confidential Information is required to be released pursuant to a court
order or an administrative proceeding. Confidential Information shall remain the
property of the disclosing party, and shall be returned to the disclosing party
upon satisfaction or completion of the performance obligations under this
Agreement with respect to which such Confidential Information was disclosed.
Each recipient party agrees to safeguard Confidential Information utilizing the
same degree of care utilized by such recipient party in protecting its own
confidential information. The terms of this Agreement shall be deemed to be
Confidential Information for purposes of this Article 7.
7.2 It is understood and acknowledged by the parties that Troup will be
offering Energy Management Services in conjunction with Oglethorpe Power
Corporation ('OPC") and the National Rural Electric Cooperative Association
("NRECA"). Troup will therefore provide certain Confidential Information
specifically relating to Energy Management Services to OPC and the NRECA on an
ongoing basis; provided, however, in no event shall Troup provide Confidential
Information relating to CyberNet or terms of this Agreement to OPC or NRECA
without obtaining CyberNet's prior written consent.
7.3 The parties further agree that, except as specified below, any
press release generated by a party regarding this Agreement or the bandwidth
capacity, services or Troup Plant provided hereunder in which a party desires to
mention the name of the other party or the other party's affiliates shall be
submitted to the non-publishing party for its written approval prior to
publication. CyberNet may advise its customers that facilities and services are
provided by Troup in connection with the services which CyberNet furnishes to
its customers. Troup may advise its customers that bandwidth capacity and
services are provided by CyberNet in connection with the services which Troup
furnishes to its customers. However, neither party shall represent that the
other party jointly participates in rendering services to such party's
customers.
-8-
<PAGE> 9
ARTICLE 8
MISCELLANEOUS
8.1 Nothing in this Agreement shall be deemed to create any
relationship between Troup and CyberNet other than that of independent parties
contracting with each other solely for the purpose of carrying out the
provisions of this Agreement. Neither of the parties hereto shall be deemed or
construed, by virtue of this Agreement, to be the agent, employee,
representative, partner, or joint venture of the other. Neither party is
authorized, by virtue of this Agreement, to represent the other party for any
purpose whatsoever without the prior written consent of the other party.
Notwithstanding any other provision of this Agreement, this Agreement applies
only to the Troup Plant, the bandwidth capacity, and the services provided
hereunder, and shall not apply to offerings by either party of services to its
respective customers. The provision of services by either party as set forth in
this Agreement does not constitute a joint undertaking with the other party for
the furnishing of any service to customers of such other party.
8.2. In the event that either party's performance of this Agreement or
any obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable control, including, but not limited to, acts of God, fire,
explosion, vandalism, storm or other similar occurrence, any law, order,
regulation, direction, action or request of the United States government, or of
any state or local government, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more such
governments, or of any civil or military authority, or by national emergency,
insurrection, riot or war, then such party shall be excused from such
performance on a day-to-day basis to the extent of such prevention, restriction
or interference. Such party shall use reasonable efforts under the circumstances
to avoid or remove such causes of nonperformance and shall proceed to perform
with reasonable dispatch whenever such causes are removed or cease. If such
failure of performance shall be for more than sixty (60) days, then either party
hereto may immediately terminate this Agreement, with no liability on the part
of any party, by serving written notice to the other party of its intent to so
terminate this Agreement.
8.3 In connection with the matters provided for in this Agreement, each
party hereto shall comply with all applicable laws and regulations, including,
but not limited to, the Communications Act of 1934, as amended, and the
policies, rules and regulations of the FCC.
8.4 All representations and warranties contained in this Agreement
shall survive, and not be waived by, the execution hereof by the parties hereto
or by any investigation or inquiry by either of the parties. The terms and
provisions contained in this Agreement that by their sense and context are
intended to survive the performance thereof by the parties hereto shall so
survive the completion of performance and termination of this Agreement,
including, without limitation, provisions for indemnification and the making of
any and all payments due hereunder.
8.5 Both parties may engage in and possess interests in other business
ventures of any nature whatsoever, and may conduct all activities, including
activities in connection with broadband services and the operation of fiber
optic transmission facilities, except as specifically and explicitly limited
pursuant to this Agreement. Nothing in this Agreement is intended, or
-9-
<PAGE> 10
shall be interpreted, to restrict either party in connection with any such
activity, including any activity which is competitive with the activities
contemplated pursuant to this Agreement, so long as a party does not violate any
specific, explicit restriction or obligation set forth in this Agreement.
8.6 Except as set forth in Section 2.4 hereof, all notices, requests
and communications hereunder shall be in writing and shall be deemed to have
been duly given to a party when delivered in person (including delivery by an
express delivery service or by facsimile transmission during the recipient's
regular business hours) to the party named below, or three business days after
such notice is enclosed in a properly sealed envelope, certified or registered,
and deposited (postage and certification or registration prepaid) in a post
office or collection facility regularly maintained by the United States Postal
Service and addressed as follows:
If to Troup:
Troup EMC Communications. Inc.
P.O. Box 160
1400 South Davis Road
LaGrange, Georgia 30241-0160
Attn: Mr. Wayne Livingston
Fax: (706) 845-2020
If to CyberNet:
CyberNet Holding, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Attn: Mr. Felix Boccucci
Fax: (706) 645-1446
Each party may designate by written notice a replacement for any person
specified above, and a new address to which any notice, demand, request or
communication may thereafter be so given, served or sent.
8.7 CyberNet shall be entitled to offset amounts due to CyberNet under
this Agreement against any and all amounts due by CyberNet to Troup pursuant to
this Agreement.
8.8 The remedies provided herein shall be cumulative, and shall not
preclude any party from asserting any other rights or seeking any other remedies
against the other party or such other party's successors or permitted assigns,
pursuant to this Agreement, as provided under other agreements, and as provided
by applicable law. Nothing contained herein shall preclude a party from seeking
equitable relief, where appropriate.
8.9 No course of dealing on the part of either party or any failure or
delay by either party with respect to exercising any of its respective rights,
powers or privileges under this Agreement shall operate as a waiver thereof.
-10-
<PAGE> 11
8.10 This Agreement shall be deemed to be a contract made under and
shall be construed in accordance with and governed by the laws of the State of
Georgia (excluding the choice of law rules thereof).
8.11 The Exhibits and Schedules attached to this Agreement are
incorporated herein for all purposes and shall be considered a part of this
Agreement.
8.12 in the event any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity. illegality or unenforceability shall not affect
any other provision of this Agreement. Furthermore, in lieu of such an illegal,
invalid or unenforceable provision, there shall be added automatically as part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
8.13 To facilitate execution, this Agreement may be executed in any
number of counterparts as may be convenient or necessary, and it shall not be
necessary that the signatures of both parties hereto or thereto be contained on
any one counterpart hereof. Additionally, the parties hereto agree that for
purposes of facilitating the execution of this Agreement, (a) the signature
pages taken from separate individually executed counterparts of this Agreement
may be combined to form multiple fully executed counterparts, and (b) facsimile
transmission shall be deemed to be an original signature. All executed
counterparts of this Agreement shall be deemed to be originals, but such
counterparts taken together or collectively, as the case may be, shall
constitute one and the same agreements.
8.14 This Agreement reflects the entire understandings and agreements
of the parties with respect to the subject matter hereof. Any and all prior
understandings and agreements and any and all contemporaneous understandings or
agreements are incorporated herein. Except as specifically set forth herein,
there are no understandings or agreements, expressed or implied, with respect to
the subject matter hereof No subsequent alteration, amendment, change, deletion
or addition to this Agreement shall be binding upon the parties hereto unless in
writing and signed by both parties to this Agreement.
8.15 It is the explicit intention of the parties 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 either of the parties
hereto, and that the covenants, undertakings, and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto or their respective successors and assigns as permitted
hereunder.
8.16 Subject to any provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
8.17 Section and subsection 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
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<PAGE> 12
purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
8.18 All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular or plural as the identity of the
person or entity may require.
Executed the 10th day of September, 1996.
TROUP EMC COMMUNICATIONS, INC.
By:/s/ Wayne Livingston
-------------------------------------
Wayne Livingston
President
CYBERNET HOLDING, INC.
By:/s/ Felix Boccucci
-------------------------------------
Felix Boccucci
Chief Financial Officer
-12-
<PAGE> 13
EXHIBIT A
Telecommunications Facility
Lease and Bandwidth Capacity Agreement
August 30, 1996
<PAGE> 14
Exhibit A
All segments of the broadband system plant contemplated by this
Agreement have been constructed, therefore there are no additional
construction completion dates.
<PAGE> 15
EXHIBIT A
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
<PAGE> 16
EXHIBIT B
Telecommunications Facility
Lease and Bandwidth Capacity Agreement
August 30, 1996
<PAGE> 17
COLUMBUS GA. DESIGN ARCHITECTURE
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ARCHITECTURE: [_____________________________]
Design calculations are based on [__________________________________________].
The system is designed with [_________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
____________________________________________________________________]
OVER ALL SYSTEM PERFORMANCE:
[_________________] [_____]
[_____________________] [_____]
[_________________] [_____]
[______________________] [_____]
[__________________________]
[_________________________________________________]
<PAGE> 18
COLUMBUS GA. DESIGN
SPECIFICATIONS
DESIGN SYMBOLS
DISTORTION ANALYSIS
PRODUCT INFORMATION
LODE DATA SPECIFICATIONS
<PAGE> 19
ABBREVIATIONS
MANUFACTURER DESCRIPTION ABBREVIATION
[___] [______________________________] [___]
[_______] [__________________________] [____]
[_______] [____________________________] [___]
<PAGE> 20
DESIGN SYMBOLS
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
<PAGE> 21
CASCADE PERFORMANCE ANALYSIS
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
<PAGE> 22
CASCADE PERFORMANCE ANALYSIS
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
<PAGE> 23
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Communications CAD Inc. Distortion Analysis Program
PHONE NUMBER: 770-569-4849, FAX NUMBER: 770-569-4890
<TABLE>
= ======================== ======== ========== ========= ==== ========== ==========
<S> <C> <C> <C> <C> <C>
| System Name: CYBERNET COLUMBUS GEORGIA RW
| System Phone #:
| System Fax #:
| TV Standard: [__________]
| Bandwidth/Ch: [__________]
| Type System [__________] 24-Jun-96
| Low Frequency: [__________] 09:21 AM
| High Frequency: [__________] Rev. 8.00
</TABLE>
<TABLE>
<CAPTION>
------------ --------------- ------------- ------- -------------- ---------------
| Equipment: [________] [________] [________] Comments
------------ --------------- ------------- ------- ------------------------------
<S> <C> <C> <C> <C> <C>
| [_______________________] [________] [________] [________] [____________________________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________] ==[____]= [_______]
= ======================== ======== ========== ========= ==== ==[____]= ==[____]==
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
= ======================== ======== ========== ========= ==== ========== ==========
| [________] [________] [________]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
= ======================== ======== ========== ========= ====
</TABLE>
<PAGE> 24
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Communications CAD Inc. Distortion Analysis Program
PHONE NUMBER: 770-569-4849, FAX NUMBER: 770-569-4890
<TABLE>
= ======================== ======== ========== ========= ==== ========== ==========
<S> <C> <C> <C> <C> <C>
| System Name: CYBERNET COLUMBUS GEORGIA RW
| System Phone #: RW
| System Fax #: RW
| TV Standard: [__________]
| Bandwidth/Ch: [__________]
| Type System [__________] 24-Jun-96
| Low Frequency: [__________] 09:20 AM
| High Frequency: [__________] Rev. 8.00
</TABLE>
<TABLE>
<CAPTION>
------------------------------ ------------ --------------- ------------- ------- -------------- ---------------
| Equipment: [________] [________] [________] Comments
------------------------------ ------------ --------------- ------------- ------- ------------------------------
<S> <C> <C> <C> <C> <C>
| [_______________________] [________] [________] [________] [______________________
| [_______________________] [________] [________] [________] ________________________
| [_______________________] [________] [________] [________] ________________________
| [_______________________] [________] [________] [________] ________________________
| [_______________________] [________] [________] [________] ___________________
| [_______________________] [________] [________] [________] ___________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________]
| [_______________________] [________] [________] [________] ==[____]= [_______]
= ======================== ======== ========== ========= ==== ==[____]= ==[____]==
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
| [_______________________] [________] [________] [________] [____] [____]
= ======================== ======== ========== ========= ==== ========== ===========
| [________] [________] [________]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
| [_______________________] [________] [________] [________] [___]
= ======================== ======== ========== ========= ====
</TABLE>
<PAGE> 25
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________________]
AMERICAN CABLEVISION
COLUMBUS, GA, [____________]
[_________________________________________]
[__________________________________
___________________________________
________]
[___________________________________________
____________________________________________
[_________________________ ____________________________________________
_________________________] ____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
___________________________________________]
[___________________________________________
____________________________________________
____________________________________________
____________________________________________
__________________]
<PAGE> 26
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[__________] SPECIFICATIONS
<TABLE>
<CAPTION>
[______________] [___]
-------------------------- --------------------
[______________] [____] [_____] [___________] [______]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
<S> <C> <C> <C> <C>
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[___________]
- ---------------------------------------------------------------------------------------------------------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
[_____________________________] [___] [____] [________] [________]
- -------------------------------------------- --------- -------------- -------------------------- --------------------
</TABLE>
NOTES:
1. [__________________________________________________________________
___________________________________________________________________
___________________]
2. [________________________________]
3. [___________________________]
4. [______________________________________________]
5. [__________________________________________________________________
______________]
6. [__________________________________________________________________
______]
7. [_____________]
8. [__________________________________________________________________
________]
9. [___________]
Specifications are subject to change without notice. [_____________________
________________] reserves the right to ship product meeting current
specifications.
<PAGE> 27
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[___] STATION SPECIFICATIONS
<TABLE>
<CAPTION>
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[__________] [__________] [__________] [__________] [__________]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
[_____________________]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [__________]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[__________]
- ------------------------------------------------------------------------------------------------------------------------------------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
[_____________________] [____] [___] [__________] [__________] [__________] [__________] [__________] [______]
- ------------------------- ------ -------- --------------- ---------------- --------------- --------------- --------------- ---------
</TABLE>
Notes: [_______________________________________________________]
1. [______________________________________________________________________
_______________________________________________________________________
____________________]
2. [___________________________]
3. [____________________________________________]
4. [_________________________________]
5. [______________]
6. [______________________________________________________________________
________]
7. [___________]
Specifications are subject to change without notice. [_____________________
________________] reserves the right to ship product meeting current
specifications.
<PAGE> 28
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_____________________________] SPECIFICATIONS
<TABLE>
<CAPTION>
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
<S> <C> <C> <C> <C>
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[_________]
- -----------------------------------------------------------------------------------------------------------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
[__________________________________] [_____] [_________] [__________________] [________________]
- -------------------------------------------- --------- -------------- -------------------------- ----------------------
</TABLE>
NOTES:
1. [______________________________________________________________________
_______________________________________________________________________
___________________]
2. [________________________________]
3. [______________________________________________]
4. [_____________]
5. [______________________________________________________________________
_______]
6. [__________]
Specifications are subject to change without notice. [_____________________
________________] reserves the right to ship product meeting current
specifications.
<PAGE> 29
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[_______________]
<TABLE>
<CAPTION>
[____] [______]
[______] [____] [______] [______]
[________] [_________] [______] [______] [_________] [______] [______] [_____]
- ------------------- ------- ------- ------- ------ ------- ------- --------- --------- ------- ------ ------- ------- ------- ------
[____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
------- ------- ------- ------ ------- ------- --------- --------- ------- ------ ------- ------- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
- ------------------- ------- ------- ------- ------ ------- ------- --------- --------- ------- ------ ------- ------- ------- ------
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
[_______________] [____] [___] [____] [___] [___] [___] [____] [___] [___] [___] [___] [___] [____] [___]
[_______________]
------- ------- ------- ------ ------- ------- --------- --------- ------- ------ ------- ------- ------- ------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
[________________]
[___________]
[___________] [__________] [__________] [__________] [__________] [__________] [__________] [__________]
[___________]
[________________]
[________________]
[___________]
[___________] [__________] [__________] [__________] [__________] [__________] [__________] [__________]
[___________]
</TABLE>
* [_________________________________________________________________________]
<TABLE>
<CAPTION>
[_________]
- ------------------------------------------------ ----------------- ------------------- ------------------ ------------------
[_____________________________________________________________] [___________] [_____________] [_______________]
- ------------------------------------------------ ----------------- ------------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
[___________________________________] [__] [___]
- ------------------------------------------------
[_______________] [__] [___] [__] [__] [__]
- ------------------------------------------------
[_______________] [__] [___] [__] [__] [__]
- ------------------------------------------------
[_______________] [__] [___] [__] [__] [__]
- ------------------------------------------------ -------- --------
[_______________________] [____________] [__] [__] [__]
- ------------------------------------------------------------------
[_______________________] [____________] [__] [__] [__]
- ------------------------------------------------------------------
[___________________] [_________] [____________] [__] [__] [__]
- ------------------------------------------------------------------
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
[__] [__] [__]
------------------- ------------------ ------------------
</TABLE>
[___________________________________________________________________
_______________________________________________________________________]
<PAGE> 30
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
<TABLE>
<CAPTION>
[_________]
[____]
[____] [_______]
[______] [____] [_______] [_______]
[_________] [________] [______] [____] [____] [____] [_____]
- ------------------- ------- ------- ------- ------ ------- ------- ------- ------- ------- ------- ------ -------
[____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
------- ------- ------- ------ ------- ------- ------- ------- ------- ------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
- ------------------- ------- ------- ------- ------ ------- ------- ------- ------- ------- ------- ------ -------
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
[______________] [____] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[______________]
------- ------- ------- ------ ------- ------- ------- ------- ------- ------- ------ -------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
[_________________]
[________]
[_________________] [____________] [___________] [____________] [____________] [___________] [____________]
[________]
[_________________]
[_________________]
[________]
[_________________] [____________] [___________] [____________] [____________] [___________] [____________]
- ------------------- --------------- -------------- --------------- --------------- --------------- --------------
</TABLE>
* [__________________________________________________________________________]
<TABLE>
<CAPTION>
[_________]
- ----------------------------------------- ------------ ----------------- ------------------ -----------------
[________________________________________________]
[______] [___________] [_____________] [_________]
[______] [_________]
- ----------------------------------------- ------------ ----------------- ------------------ -----------------
[___________________________________] [__] [____]
- -----------------------------------------
<S> <C> <C> <C> <C> <C>
[________________] [____] [___] [___] [___] [___]
- -----------------------------------------
[________________] [____] [___] [___] [___] [___]
- -----------------------------------------
[________________] [____] [___] [___] [___] [___]
- ----------------------------------------- ------ -----
[________] [___________] [___] [___] [___]
- ------------------------------------------------------
[_____________________] [___________] [___] [___] [___]
- ------------------------------------------------------
[__________________] [_________] [___________] [___] [___] [___]
- ------------------------------------------------------
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
[___] [___] [___]
----------------- ------------------ -----------------
[________________________________________
_________________________________________
_________________________________________
_________________]
</TABLE>
<PAGE> 31
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[____]
<TABLE>
<S> <C> <C> <C>
8101 East Prentice Avenue, Suite 210 - Englewood, Colorado 80114 - 303-740-8949 Fax: 303-740-9420
</TABLE>
[__________]
[________________________]
[________________________]
[________________]
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[________________] [_______________________]
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[________] [______] [________] [_________]
[________] [______] [________] [_________]
[___________________]
[_____________________________________________________________________]
[________] [______] [________] [_________]
[________] [______] [________] [_________]
[______________]
[_______________________________________]
[_______________________________________]
[_______] [________________] [_________________]
[________________] [_________________]
[________________] [_________________]
[____________]
[_____________________________________________________________________________
_______________________________________________]
<TABLE>
<CAPTION>
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________]
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________] [_] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
</TABLE>
[___________] [_______] [__________]
[___________________] [__________________]
[____________] [____________]
[__________________________________________________________]
<PAGE> 32
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[__________________________________]
[______________________]
[______________________________________________________________________________
___________________________________________________________________]
<TABLE>
<CAPTION>
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________]
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
</TABLE>
<PAGE> 33
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[__________]
[______________________]
[________________________]
[_______________]
[___________] [_______________________]
[___________] [_______________________]
[___________] [_______________________]
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[_________]
[____________________________________________________________________________]
[_______] [______] [________] [_________]
[_______] [______] [________] [_________]
[_________]
[____________________________________________________________________________]
[_______] [______] [________] [_________]
[_______] [______] [________] [_________]
[_________]
[_______________________________________]
[_______________________________________]
[________] [________________] [________________]
[________________] [________________]
[________________] [________________]
[_____________]
[____________________________________________________________________________
_______________________________________________]
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[__________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
</TABLE>
[___________] [_______] [________]
[___________________] [_________________]
[____________] [_____________]
[_________________________________________________________]
<PAGE> 34
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[__________________________________]
[______________________]
[______________________________________________________________________________
___________________________________________________________________]
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
</TABLE>
<PAGE> 35
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[______________________]
[_______________________]
[_________________]
[___________] [_______________________]
[___________] [_______________________]
[___________] [_______________________]
[___________] [_______________________]
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[__________]
[_____________________________________________________________________________]
[______] [______] [_______] [_________]
[______] [______] [_______] [_________]
[__________]
[_____________________________________________________________________________]
[______] [______] [_______] [_________]
[______] [______] [_______] [_________]
[_____________]
[_______________________________________]
[_______________________________________]
[_______] [_______________] [________________]
[_______________] [________________]
[_______________] [________________]
[____________]
[____________________________________________________________________________
______________________________________________]
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
[___________________] [___] [___] [___] [___] [___] [___] [___] [___] [___]
</TABLE>
[____________] [_______] [_________]
[____________________] [_________________]
[____________] [____________]
[_________________________________________________________]
<PAGE> 36
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[__________________________________]
[______________________]
[______________________________________________________________________________
___________________________________________________________________]
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
</TABLE>
<PAGE> 37
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[______________________]
[______________________]
[__________________]
[____________] [_______________________]
[____________] [_______________________]
[____________] [_______________________]
[____________] [_______________________]
[____________] [_______________________]
[______________________________________________________]
[_________]
[____________________________________________________________________________]
[______] [_____] [_______] [_________]
[______] [_____] [_______] [_________]
[__________________]
[_____________________________________________________________________]
[______] [_____] [_______] [_________]
[______] [_____] [_______] [_________]
[_____________]
[_______________________________________]
[____________]
[____________________________________________________________________________
______________________________________________]
<TABLE>
<CAPTION>
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[______________]
[___]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
[________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- ---------------------- ------- ------- ------ ------- ------- -------- ------- -------- ------- --------- ------
</TABLE>
<PAGE> 38
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[__________________________________]
[____________] [_____________]
[_____________________]
[______________________________________________________________________________
___________________________________________________________________]
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
[____]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________]
[___]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
[____________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------- --------- -------- --------- -------- --------- --------- -------- --------- -------- --------- --------
</TABLE>
<PAGE> 39
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[_______________________]
[_______________________]
[________________]
[__________] [____________________]
[__________] [____________________]
[__________] [____________________]
[__________] [____________________]
[__________] [____________________]
[___________________________________________________]
[_________]
[____________________________________________________________________________]
[______] [_____] [_______] [_________]
[______] [_____] [_______] [_________]
[__________________]
[_____________________________________________________________________]
[______] [_____] [_______] [_________]
[______] [_____] [_______] [_________]
[_____________]
[_______________________________________]
[____________]
[_____________________________________________________________________________
_______________________________________________]
<TABLE>
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
</TABLE>
<PAGE> 40
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[_________________________________]
[___________] [____________]
[______________________]
[______________________________________________________________________________
___________________________________________________________________]
<TABLE>
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__] [__]
</TABLE>
<PAGE> 41
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[_____________________]
[_______________________]
[_______________]
[___________] [______________________]
[___________] [______________________]
[___________] [______________________]
[___________] [______________________]
[___________] [______________________]
[_______________________________________________]
[_________]
[____________________________________________________________________________]
[______] [_____] [_______] [_________]
[______] [_____] [_______] [_________]
[__________________]
[______________________________________________________________________]
[______] [_____] [_______] [_________]
[______] [_____] [_______] [_________]
[_____________]
[______________________________________]
[_____________]
[____________________________________________________________________________
______________________________________________]
<TABLE>
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[___________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
</TABLE>
<PAGE> 42
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
[_________]
[_________________________________]
[___________] [____________]
[_____________________]
[______________________________________________________________________________
___________________________________________________________________]
<TABLE>
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
[_________________] [__] [__] [__] [__] [__] [__] [__] [__] [__]
- --------------------------- ------ ------- ------- ------- ------- ------- ------- ------- -------
</TABLE>
<PAGE> 43
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Parameters CST; last modified February 19 9:12 am
Page 1 of 5. General Parameters
<TABLE>
<S> <C> <C> <C> <C>
[_________] [___] [_____] [__________________] [____]
[___] [_____] [__________________] [____]
[___] [_____] [__________________] [____]
[___] [_____] [__________________] [____]
[__________________] [_____] [______]
[__________] [___] [__________________] [____]
[__________] [___] [___________] [____]
[__________] [___] [___________] [____]
[______] [___________] [____]
[__________________] [_____] [___________] [____]
[__________________] [_____] [___________] [____]
[__________________] [_____] [__________________] [____]
[__________________] [_____] [__________________] [____]
[__________________] [_____]
[__________________] [_____]
[__________________] [_____]
</TABLE>
<PAGE> 44
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Page 2 of 5. [________________]
<TABLE>
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
<S> <C> <C> <C> <C> <C> <C>
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
[___] [__] [___] [___] [___] [___]
</TABLE>
<PAGE> 45
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Page 3 of 5. [________________]
<TABLE>
<CAPTION>
[_____________] [_____________]
[__] [__] [__] [__]
<S> <C> <C> <C> <C>
0 [____] [____] [____] [____]
1 [____] [____] [____] [____]
2 [____] [____] [____] [____]
3 [____] [____] [____] [____]
4 [____] [____] [____] [____]
5 [____] [____] [____] [____]
6 [____] [____] [____] [____]
7 [____] [____] [____] [____]
8 [____] [____] [____] [____]
9 [____] [____] [____] [____]
10 [____] [____] [____] [____]
11 [____] [____] [____] [____]
12 [____] [____] [____] [____]
13 [____] [____] [____] [____]
14 [____] [____] [____] [____]
15 [____] [____] [____] [____]
</TABLE>
<PAGE> 46
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Page 4 of 5. [_________________]
<TABLE>
<S> <C> <C> <C> <C> <C>
[__________] [__________________________] [_______________] [__]
[__________] [__________________________] [_______________] [__]
[__________] [__________________________] [_______________] [__]
[______] [_______________] [__]
[______] [_______________] [__]
[______] [_______________] [__]
[_____________] [__________________________] [_______________] [__]
[_____________] [__________________________] [_______________] [__]
[_____________] [__________________________] [_______________] [__]
[_____________] [__________________________] [_______________] [__]
[_____________] [__________________________] [_______________] [__]
[_______________] [__]
</TABLE>
<PAGE> 47
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Page 5 of 5. [_____________]
<TABLE>
<CAPTION>
[__] [______________] [_____] [____________] [________]
<S> <C> <C> <C> <C>
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
[__] [______________] [_____] [____________] [________]
</TABLE>
<PAGE> 48
EXHIBIT C
Telecommunications Facility
Lease and Bandwidth Capacity Agreement
August 30, 1996
<PAGE> 49
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Exhibit C
Page 1 of 2
<TABLE>
<CAPTION>
Materials
Description Quantity Cost Total
-------------------------------------------------------------------
<S> <C> <C> <C> <C>
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
[___________________] [_____] [______] [_______]
</TABLE>
<TABLE>
<CAPTION>
Labor
Description Quantity Cost Total
----------------------------------------------------------------------
<S> <C> <C> <C> <C>
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [_____] [________] [____________]
[___________________] [____________]
[___________________] [____________]
</TABLE>
* [_____________________________________________________________________________
______________________________________]
** [____________________________________________________________________________
________________________________________________________________________________
_____________________________________________]
<TABLE>
<CAPTION>
DESCRIPTION TOTAL
<S> <C>
MATERIALS SUMMARY [____________]
LABOR SUMMARY [____________]
SUB TOTAL [____________]
MANAGEMENT [____________]
GRAND TOTAL [____________]
</TABLE>
<PAGE> 50
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Exhibit C
Page 2 of 2
<TABLE>
<S> <C> <C> <C>
[________________] [__] [__] [________]
[________________] [__] [__] [________]
[________________] [__] [__] [________]
[________________] [__] [__] [________]
</TABLE>
<PAGE> 51
EXHIBIT D
Telecommunications Facility
Lease and Bandwidth Capacity Agreement
August 30, 1996
<PAGE> 52
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT D
- --------------------------------------------------------------------------------
LEASE PAYMENTS
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Cost Basis: [___________]
Annual rate of return: [___________]
Term in years: [___________]
Payments per year: [___________]
First payment due: 12/1/96
Calculated payment: [___________]
</TABLE>
<TABLE>
<CAPTION>
- ------- ----------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
PAYMENT BEGINNING ENDING CUMULATIVE
NO. DATE BALANCE INTEREST PRINCIPAL BALANCE INTEREST
- ------- ----------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- ----------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
[__] [______] [________] [______] [______] [________] [_______]
- ------- --------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
[__] [______] [________] [______] [______] [________] [_______]
- ------- ----------------------------- ------------------ ------------------- ------------------ ------------------- ---------------
</TABLE>
<PAGE> 1
EXHIBIT 10.18
POLE ATTACHMENT AGREEMENT
COMMUNITY ANTENNA TELEVISION - CATV
GEORGIA POWER COMPANY
AND
American Cable Company
THIS AGREEMENT, made as of May 21, 1990 by and between the Georgia Power
Company, a corporation of the State of Georgia, hereinafter called Licensor, and
American Cable Company hereinafter called Licensee.
W I T N E S S E T H:
WHEREAS, Licensee proposes to furnish television antenna signal service to
residents of the City of Columbus, Muscogee County, Georgia, and will need to
erect and maintain aerial cables, wires and associated appliances throughout the
area to be served, and desires to attach certain of such cables, wires and
appliances to poles of Licensor; and
WHEREAS, Licensor is willing to permit, to the extent that it may do so
lawfully, the attachment of said cables, wires and appliances to its poles if,
in its judgment, such use will not interfere with its own service requirements,
including considerations of economy and safety, and if
<PAGE> 2
Licensor is protected and indemnified against costs to it arising
from such use;
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties hereto do hereby mutually covenant and
agree as follows:
1. Before making attachment to any pole or poles of Licensor, Licensee
shall make application there for in the form set forth in Exhibit "A", hereto
attached and made a part hereof, and if the proposed attachment is satisfactory
to Licensor, a permit therefor will be granted in the form set forth in such
Exhibit "A". Licensee shall prepare and submit a map indicating all attachment
locations at the time of submission of such Exhibit "A". No work shall begin
until Licensor receives a signed Exhibit "A". Any unauthorized attachments are
subject to the penalty provision set forth in Paragraph 7.
2. Licensee shall, at its own expense, make and maintain said attachments
in safe condition and in thorough repair, and in a manner satisfactory to
Licensor and so as not to interfere with the use of said poles by Licensor, or
by other utility companies using said poles, or interfere with the use and
maintenance of facilities thereon or which may from time to time be placed
thereon. Licensee shall, at any time, at its own expense, upon notice from
Licensor, remove, relocate, replace, or renew its facilities placed on said
poles, or transfer them to substituted poles, or perform any other work in
connection with the said facilities that may be required by
2
<PAGE> 3
Licensor; provided, however, that in cases of emergency, Licensor may arrange to
remove, relocate, replace or renew the facilities placed on said poles by
Licensee, or transfer them to substituted poles or perform any other work in
connection with said facilities that may be required in the maintenance,
replacement, removal or relocation of said poles, the facilities thereon or
which may be placed thereon, or for the service needs of Licensor, and Licensee
shall, on demand, reimburse Licensor for the expense thereby incurred.
3. Licensee's cables, wires and appliances, in each and every location,
shall be erected and maintained in accordance with the requirements and
specifications of the National Electrical Safety Code, as revised, and in
compliance with any rules or orders now in effect or that hereafter may be
issued by any other authority having jurisdiction. Drawings marked Exhibits B-1
through B-8 which are attached hereto and made a part hereof, are descriptive of
required construction under some typical conditions, and are to serve as
construction guides for Licensee. Such drawings may be superseded, amended or
supplemented from time to time as may be required by Licensor.
4. Licensee's cables, wires and appliances, shall be identified in
accordance with Exhibit B-9. Markers shall be installed on the strand, at every
first, fifth and last mainline pole attachment, including the first pole in all
lateral lines and at all crossover points. The color and the shape of the marker
shall be unique to Licensee and shall be used to identify
3
<PAGE> 4
Licensee's facilities in that particular Georgia Power Company district.
Suggested markers are set forth in Exhibit B-9 and same shall be approved by
Licensor prior to use thereof. Existing strand shall be so identified by
Licensee at the next system rebuild opportunity or otherwise as regular
maintenance or emergency repair work so permits. All strand shall be marked by
December 31, 1995.
5. In the event that any pole or poles of the Licensor to which Licensee
desires to make attachments are inadequate to support the additional facilities
in accordance with the aforesaid specifications, the Licensor will notify the
Licensee of any changes necessary to provide adequate poles and the estimated
cost thereof. If the Licensee still desires to make the attachments it shall
authorize the Licensor to make the necessary changes and shall reimburse the
Licensor, on demand, for all costs incurred by Licensor in making such changes.
Where the Licensee's desired attachments can be accommodated on present poles of
the Licensor by rearranging Licensor's facilities thereon, the Licensee shall
compensate the Licensor for the full expense incurred in completing such
rearrangements. The Licensee will also, on demand, reimburse the owner, or
owners, of other facilities attached to said poles for any expenses incurred by
it, or them, in transferring or rearranging said facilities. In the event that
any pole or poles of Licensor to which Licensee has attached its facilities
would be adequate to support additional facilities desired by Licensor or any
pole user
4
<PAGE> 5
whose use came before Licensee's but for the attachment or attachments of
Licensee, then Licensor shall notify Licensee of any changes necessary to
provide adequate poles and the estimated cost thereof. Upon receipt of such
notice Licensee shall remove its facilities at its expense or reimburse
Licensor, on demand, for all costs incurred by Licensor in making such changes.
Any anchors or guys required to accommodate the attachments of the Licensee
shall be installed by and at the expense of the Licensee and to the satisfaction
of the Licensor.
6. Before undertaking any rebuilding effort, Licensee shall contact
Licensor's local personnel and secure written approval of proposed construction
method and length of time expected for proposed construction.
7. In the event that the number of poles to which Licensee has attached
its facilities differs from the number shown in Licensor's records, the
difference shall be prorated over the period since the last such accounting. If
this results in an increase in the number of poles to which Licensee has
attached for any year during such period, Licensee shall forthwith pay to
Licensor the fees due for such poles for such years, and if it results in a
decrease in the number of poles to which Licensee has attached for any year
during such period, Licensor shall forthwith refund to Licensee the fees
previously paid for such poles for such years. Unauthorized pole attachments
shall be billed at a rate of $50.00 per attachment plus attachment fees.
5
<PAGE> 6
8. Licensor may at any time and from time to time survey the installation
of cable communications facilities and may make periodic surveys of the
facilities as conditions may warrant. Such surveys, if made, shall not operate
to relieve Licensee of any responsibility, obligation or liability or to impose
any responsibility, obligation or liability upon Licensor. Said surveys shall be
performed at the sole expense of the Licensee in accordance with the terms and
conditions set forth in Exhibit B-10.
9. Licensor reserves to itself, its successors and assigns, the right to
maintain its poles and to operate its facilities thereon in such manner as will
best enable it to fulfill its own service requirements. Licensor shall not be
liable to Licensee for any interruption to service of Licensee or for
interference, however caused, with the operation of the cables, wires and
appliances of Licensee, arising in any manner out of the use of Licensor's poles
hereunder, including any effects undesirable to Licensee which the presence,
breakdown, operation, maintenance, alterations of, or additions to, the lines
and other facilities of Licensor or those jointly using Licensor's poles may
have upon the attachments or the transmissions of Licensee, even if the cause of
such effects may be attributable to negligence (including, without being limited
to, Licensor's sole negligence, contributory negligence, concurring negligence,
active negligence and passive negligence) on the part of Licensor or its agents.
6
<PAGE> 7
10. Any transferring or rearranging of attachments required on any pole or
any pole replacement shall be done by the Licensor at the Licensee's expense
without any liability whatever to the Licensor for such removal, transfer,
rearranging or the manner of making it. Licensee shall pay to Licensor a flat
rate charge as shown in Exhibit B-11, per removal, transfer or rearranging said
attachments. This rate may be changed from time to time upon notice by Licensor.
11. Licensee shall acquire in its own name and at its own expense any and
all easements or other rights in land that may be required to permit the
presence of Licensee's facilities on Licensor's poles. Licensor shall have no
liability to Licensee for any failure to acquire any such rights.
12. Licensee engaged in two-way communication activities shall be charged
the rate then payable to Licensor by Southern Bell Telephone and Telegraph
Company for two-way communication facilities.
13. Licensee shall secure authority to erect and maintain its facilities
within public streets, highways and other thoroughfares, and shall secure any
necessary consent from state or municipal authorities or from the owners of the
property upon which the poles are located to construct and maintain Licensee's
facilities thereon.
14. The Licensee shall pay to Licensor, for attachments made to poles
under this agreement, a rental at an annual rate that will be calculated in
accordance with the calculations set forth in Exhibit "C" based
7
<PAGE> 8
on the most recent available FERC Form I data. Said rental shall be payable
annually, in advance, on the first day of January of each year. Upon written
notice to Licensor, Licensee may pay Licensor equal quarterly installments due
January 1, April 1, July 1, and October 1. Repeated late payments will subject
Licensee to a requirement that payments be made on an annual basis. Delinquent
payments will subject Licensee to a late fee as stipulated in Exhibit D.
15. Licensee shall exercise precautions to avoid damage to facilities of
Licensor and of others supported on said poles and hereby assumes all
responsibility for any and all loss for such damage. Licensee shall make an
immediate report to Licensor of the occurrence of any damage and hereby agrees
to reimburse Licensor for the expense incurred in making repairs.
16. Licensee shall specifically and adequately warn each and every
employee of Licensee or Licensee's contractors or agents of the danger inherent
in making contact with the electrical conductors of Licensor, or of coming
closer to same than permitted by the NESC or OSHA, before such employee is
permitted to perform any work on or near any facilities belonging to Licensor.
Said warning shall be given to the Employee both orally and in writing. The
written warning shall be prepared in duplicate in a form satisfactory to
Licensor, but any approval of such form by Licensor shall not operate to impose
any liability upon Licensor or to relieve Licensee from any obligation or
liability. One copy of the written warning shall be
8
<PAGE> 9
retained by the employee. The other copy, signed by the employee acknowledging
receipt of both oral and written warnings, shall be retained by Licensee and
made available for inspection by Licensor at any time upon request of Licensor.
17. Licensee and Licensor recognize that there are certain risks inherent
in placing cable communications facilities in proximity to electric transmission
lines. Licensee hereby expressly and specifically assumes all such risks and
releases and agrees to indemnify and hold Licensor harmless from and against any
and all Claims resulting directly or indirectly, in whole or in part, from
electrical contact with the cable communications facilities or any part thereof,
including without limitation any such electrical contact resulting from the sole
negligence of Licensor.
18. Should Licensee make more than one attachment for a period of three
months or more, Licensee will be billed in full for each attachment exceeding
one.
19. A. For purposes of this Section and as used herein, the terms set
forth below shall be defined as follows:
(1.) Claim - The term "Claim" includes any liability, loss, damage,
claim or cause of action of any kind or nature (including without limitation
damage to property and injury to or death of persons), whether actual or
alleged, or payment of any sum or sums of money to any entity or person
whomsoever and any expenses connected therewith (including without limitation
litigation costs and reasonable attorney fees).
9
<PAGE> 10
(2.) Employee - The term "Employee" includes any employee of a party or
of any contractor or agent of such party.
(3.) Negligence - Except as limited by express language, the term
"Negligence" includes sole, joint or concurring negligence of whatever kind,
including without limitation, negligence of a party or its employees,
contractors or agents or the employees of such contractors or agents, and
regardless of whether there is concurring negligence on the part of some third
party.
(4.) Personal Injury - The term "Personal Injury" includes any injury
to or death of any natural person.
(5.) Third Party Claim - A "Third Party Claim" is a Claim (as defined
in subsection A.1 of this Section) asserted against one or both of the parties
hereto by a person or entity other than the parties and their employees,
contractors and agents and the employees of their contractors and agents.
B. Licensee shall indemnify Licensor and hold it harmless from and against
Claims arising out of any Personal Injury to any Employee of Licensee, including
without limitation any such Claim which is caused in whole or in part by the
Negligence of Licensor. Throughout the Term of this Agreement, Licensee shall
maintain sufficient insurance coverage to protect Licensor from Claims as
provided in this subsection.
C. Licensor shall indemnify Licensee and hold it harmless from and against
Claims arising out of any Personal Injury to any Employee of
10
<PAGE> 11
Licensor, including without limitation any such Claim which is caused in whole
or in part by the Negligence of Licensee. Throughout the Term of this Agreement,
Licensor shall maintain sufficient self-insurance coverage to protect Licensee
from Claims as provided in this subsection.
D. Licensee shall indemnify Licensor and hold it harmless from and against
Third Party Claims in any way attributable to or arising out of this agreement
and/or Licensee's use of Licensor's poles and facilities and/or premises, and
excepting only those situations where the Third Party Claim has been caused by
reason of the sole negligence on part of Licensor. Throughout the term of this
Agreement, Licensee shall maintain sufficient insurance coverage to protect
Licensor from Claims as provided in this subsection.
E. Licensee shall indemnify and hold harmless Licensor from and against
any penalties, fines or forfeitures imposed by a governmental authority or
expenses associated therewith (including without limitation litigation costs and
reasonable attorney fees) arising out of any failure or refusal by Licensee or
any customer of Licensee to comply with any law, statute, regulation, rule,
ordinance, order, injunction, writ, decree or award of any government or
political subdivision thereof, or any agency, authority, bureau, commission,
department or instrumentality thereof, or any court, tribunal or arbitrator,
applicable to the furnishing or use of cable communications services.
11
<PAGE> 12
F. In the event that either party hereto (referred to in this subsection
as the "Indemnitor") shall fail or refuse following the request of the other
party (referred to in this subsection as the Indemnitee to indemnify the
Indemnitee as provided in this Section or to assume the defense of an action or
claim covered by this Section, and such failure or refusal subsequently is
determined to have been without a reasonable basis in law or fact, then (in
addition to the indemnification obligation set forth in this Section) the
Indemnitor shall be liable to the Indemnitee for liquidated damages in an amount
equal to twenty-five percent (25%) of the amount for which the Indemnitor is
otherwise liable to the Indemnitee pursuant to this Section in order to
compensate the Indemnitee for the time expended by its officers and employees in
connection with the defense of the Claim for which indemnification was requested
by the Indemnitee. Any failure by Licensor or Licensee to comply with indemnity
and insurance requirements shall constitute default.
12
<PAGE> 13
G. Nothing in the foregoing subsections of this Section shall be construed
to require one party to this Agreement to indemnify the other party to this
Agreement for any cost or expense that is to be borne by such other party
pursuant to any provision of this Agreement other than the provisions of this
Section.
H. All Claims that are asserted against the parties jointly or which may
affect both parties shall be dealt with by the parties jointly acting in good
faith, including settlement negotiations. If a claimant desires to settle upon
terms acceptable to one party but not to the other, the party desiring to settle
may do so, provided only that the settlement is reasonable and is entered into
in good faith, without in any way prejudicing or affecting any of the settling
party's rights to indemnification under any provision of this Section.
20. Licensee may at any time remove its attachments from any pole or poles
of Licensor, but shall immediately give Licensor written notice of such removal.
No refund of any rental will be due on account of such removal.
21. Upon notice from Licensor to Licensee that the use of any pole or
poles is forbidden by municipal authorities or property owners, the permit
covering the use of such pole or poles shall immediately terminate, and the
cables, wires and appliances of Licensee shall be removed at once from the
affected pole or poles.
13
<PAGE> 14
22. If Licensor requests transfer of existing facilities, Licensor shall
give Licensee notice by electronic notification through the pole transfer system
provided by the Georgia Utility Protection Center. Licensee shall have sixty
(60) days to make said transfer. If, at the expiration of such period, the
Licensor shall have no attachments on such pole but the Licensee shall not have
removed all of its attachments therefrom, such pole shall thereupon become the
property of the Licensee, and the Licensee shall save harmless the former
Licensor of such pole from obligation, liability, damage, cost, expenses or
charges incurred thereafter, because of, or arising out of, the presence or
condition of such pole or of any attachments thereon, regardless of any
negligence claimed on the part of Licensor; and shall pay the Licensor a sum
equal to the then value in place of such abandoned pole or poles, or such other
equitable sum as may be agreed upon between the parties.
23. If Licensee shall fail to comply with any of the provisions of this
agreement, including the specifications hereinbefore referred to, or default in
any of its obligations under this agreement and shall fail within thirty (30)
days after written notice from Licensor to correct such default or
non-compliance, Licensor may, at its option, forthwith terminate this agreement
or the permit covering the poles as to which such default or non-compliance
shall have occurred.
24. Bills for expenses and other charges under this agreement shall be
payable within thirty (30) days after presentation. Non-payment of
14
<PAGE> 15
bills shall constitute a default under this agreement.
25. Failure to enforce or insist upon compliance with any of the terms or
conditions of this agreement shall not constitute a general waiver or
relinquishment of any such terms or conditions, but the same shall be and remain
at all times in full force and effect.
26. Nothing herein contained shall be construed as affecting the rights or
privileges previously conferred by Licensor, by contract or otherwise, to
others, not parties to this agreement, to use any poles covered by this
agreement; and Licensor shall have the right to continue and extend such rights
and privileges. The attachment privileges herein granted shall at all times be
subject to such existing contracts and arrangements. The attachment privileges
herein granted shall be non-exclusive and the Licensor shall have the right in
its sole discretion to grant attachment privileges of any sort to any person,
firm or corporation.
27. Licensee shall not assign, transfer or sublet the privileges hereby
granted without the prior consent in writing of Licensor, which shall not be
unreasonably withheld.
28. Except as provided in Section 22, no use, however extended, of
Licensor's poles under this agreement shall create or vest in Licensee any
ownership or property rights in said poles, but Licensee's rights therein shall
be and remain a mere license. Nothing herein contained shall be construed
15
<PAGE> 16
to compel Licenser to maintain any of said poles for 8 period longer than
demanded by its own service requirements.
29. This agreement shall become effective upon its execution and if not
otherwise terminated, shall continue in effect until either party gives six (6)
months written notice. Upon termination of the agreement in accordance with any
of its terms, Licensee shall immediately remove its cables, wires and appliances
from all poles of Licensor. If not so removed, Licensor shall have the right to
remove them at the cost and expense of Licensee and without any liability
therefor.
30. Licensee shall furnish bond or satisfactory evidence of contractual
insurance coverage to guarantee the payment of any sums which may become due to
Licensor for rentals or for work performed for the benefit of Licensee under
this agreement, including the removal of attachments upon termination of this
agreement by any of its provisions. The amount of the contractual insurance
coverage is subject to be increased or decreased whenever, in the judgment of
the Licensor, such action is deemed advisable from the standpoint of protecting
the payments due Licensor as set forth above. Licensee shall abide by the terms
and conditions set forth in Appendix 1 as to requirements for pole attachment
bond and insurance.
31. In the event of controversies and disputes which may arise in
connection with this Pole Attachment Agreement, Licensee shall bear all legal
costs incurred, including Licensor's attorney's and witness fees, when
16
<PAGE> 17
and if said controversies and disputes are settled in favor of Licensor.
32. All existing pole attachment agreements between the parties hereto
are, by mutual consent, hereby abrogated and annulled.
33. Nothing herein shall preclude the parties from preparing such
supplemental operation routines or working practices as they mutually agree to
be necessary or desirable effectively to administer the provisions of this
agreement.
34. Subject to the provisions of Section 19, this Agreement shall extend
to and bind the successors and assigns of the parties hereto.
35. Upon the expiration or termination of Licensee's franchise to operate
its business, this agreement shall be of no further effect and the rights of the
Licensee shall be thereby terminated. Licensee shall remove any and all
attachments remaining on Licensor's poles within 30 days of loss of franchise.
17
<PAGE> 18
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed the day and year first above written.
ATTEST: American Cable Company
----------------------
Licensee
By: /s/ W. Reid Walls, Sr.
- ----------------------------- ---------------------------------
Its:
--------------------------
ATTEST: GEORGIA POWER COMPANY
/s/ [SIGNATURE ILLEGIBLE] By: /s/ James L. Davis Jr.
- ----------------------------- ----------------------------------
Its: General Manager of Distribution
-------------------------------
18
<PAGE> 19
APPENDIX 1
POLE ATTACHMENT BOND AND INSURANCE REQUIREMENTS
I. $25.000 SURETY BOND (In a form similar to and
containing those terms and conditions set forth in
Appendix 2 attached hereto.)
Acceptable alternatives to the Surety Bond are:
1. $25,000.00 Cash Deposit with Licensor
2. $25,000.00 Certificate of Deposit
3. Irrevocable Letter of Credit
II. INSURANCE PROVISIONS
A. Workers' Compensation and Employer's Liability Licensee and its
subcontractors and all their respective employees, workmen, servants or agents,
in the course of its operations, shall comply with all requirements of the
Workers' Compensation laws of the state of Georgia.
Licensee shall in addition carry Employer's Liability Insurance covering
its operations hereunder and involving any of Licensor's facilities in an amount
not less than $500,000 per person.
B. General Liability and Automobile Insurance - Licensee agrees to carry
at its sole expense, General Liability Insurance covering all operations of
Licensee hereunder and involving any of Licensor's facilities, in the amounts of
not less than $1,000,000 for all liability arising out of injury
<PAGE> 20
to or death of one or more persons in any one occurrence, and not less than
$1,000,000 for all liability arising out of injury to or destruction of property
in any one occurrence. Such insurance shall be specifically endorsed to cover
liability assumed by Licensor pursuant to the terms of that certain Pole
Attachment Agreement between Licensor and Licensee dated __________. Licensee
agrees to carry, at its sole expense, Automobile Liability Insurance on all
automobiles owned and hired, as well as automobile non-ownership liability
insurance, in the amounts of not less than $1,000,000 for all liability arising
out of injury to or death of one or more persons in any one occurrence, and not
less than $1,000,000 for all liability arising out of injury to or destruction
of property in any one occurrence.
C. Such insurance, per Section II B above, shall include Licensor as a
Named Insured so as to provide first party and first dollar coverage to Licensor
for any liability, including cost of defense incurred by Licensor as a result of
or in any way arising out of or connected with any activity or operation of
Licensee hereunder involving its exercise of any right or privilege pursuant to
this License, specifically including claims by employees or contractors of
Licensee.
D. Upon request, Licensee shall furnish Licensor certificates of the
insurance required in the above sections, which shall be in a form satisfactory
to Licensor. Such certificates shall contain a cancellation provision (shown in
the attached Appendix 3) which provides that
2
<PAGE> 21
thirty (30) days written notice, by registered or certified mail, shall be given
to Licensor prior to cancellation of or material change in the coverage.
E. All such insurance required above shall provide coverage for occurrence
arising from Licensee's operations pursuant to the pole attachment agreement and
for a period of two (2) years after Licensee has ceased use of Licensor's
facilities. In the event that any insurance as required herein is available only
on a "claims-made" basis, such insurance shall provide for a retroactive date
not later than the effective date of the pole attachment agreement. If the
purchase of an "optional extension period", "optional claims reporting period"
or other similarly titled clause is necessary to maintain coverage as required
hereunder, such clause shall provide coverage for all occurrences as required
herein, aggregate limits of such insurance shall be reinstated to the full
extent permitted by such insurance policy and shall provide coverage for all
claims made during the period of Licensee's use of Licensor's facilities and
thereafter as required above. The limits of liability of such insurance as
required herein shall remain unimpaired to the full extent permitted by such
insurance policy, and Licensee shall execute all procedures necessary to remove
any such impairment.
Failure of Licensee to provide insurance as herein required or failure of
Licensor to require evidence of insurance or to notify Licensee of its breach
3
<PAGE> 22
of any of the requirements of this paragraph shall not be deemed to be a waiver
by Licensor of any of the terms and conditions of the pole attachment agreement,
nor shall they be deemed to be a waiver of the obligations of Licensee to
defend, indemnify, and hold harmless Licensor as required herein. All insurance
as required herein shall be primary to any other insurance coverage purchased
and shall be issued by an insurance company licensed to do business in the State
of Georgia and shall have a Best's Rating of not less than "A". and a net
surplus of not less than $25,000,000. Licensee's obligation to provide for the
continuation of such insurance shall survive termination of Licensee's use of
Licensor's facilities.
F. The above insurance requirements are minimum requirements and shall not
limit Licensee's liability to Licensor in any manner.
4
<PAGE> 23
APPENDIX 2
Form of Bond For Pole Attachment Agreements
KNOW ALL MEN BY THESE PRESENTS:
That American Cable Company, as Principal, hereinafter called Principal,
and ACHC as Surety, hereinafter called Surety, are held and firmly bound unto
Georgia Power Company, Atlanta, Georgia, hereinafter referred to as the Company,
in the penal sum of Twenty-Five Thousand and No/100th Dollars ($25,000.00),
lawful money of the United States of America, to the payment of which well and
truly to be made, Principal and Surety bind themselves, their heirs, executors,
administrators, successors and assigns, jointly and severally, firmly by these
presents.
WHEREAS, Principal executed an agreement on the 21st day of May, 1990, the
rights and duties of which shall become fully binding and effective only upon
the date of execution by the Company (Company's execution being conditioned upon
Principal satisfying certain financial responsibility requirements established
by the Company, of which this surety agreement is a part), whereby the Company
will permit the Principal to attach its lines to the poles of the Company in a
specified territory, which agreement is by reference made a part hereof and is
hereinafter referred to as the Agreement.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if, after
full execution of the Agreement by both Principal and Company, Principal (and
its successors and assigns if prior approval of the
<PAGE> 24
transfer of the Agreement to the successors and/or assigns is given by the
Company) shall in all particulars faithfully and promptly perform, fulfill and
keep each and all of the terms, covenants and conditions of the Agreement,
including, but not limited to, the payment of all amounts due to Company for
rentals, fees, and all work performed and expenses incurred under the terms and
conditions of the Agreement, which on the part of said Principal ought to be
performed, fulfilled and kept according to the true meaning and intent of the
Agreement, then this obligation shall be null and void; otherwise, it shall
remain in full force and effect.
The initial term of this obligation is one (1) year from and including the
date of execution hereof and this obligation shall not be cancelled, altered or
modified by Surety during said one (1) year term or any part thereof after
Principal has made attachments under the terms of the Agreement; and this
obligation shall be automatically renewed for successive one (l) year terms
without limit on the number of such terms unless Surety gives Company, by
certified or registered mail, written notice of its intent to cancel, alter or
modify this obligation not less than sixty (60) days prior to the end of the
initial or any succeeding term of this obligation; provided, in the event
Principal makes its first attachment under the terms of the Agreement more than
eighteen (18) months after the execution of this obligation, then the initial
term of this obligation shall be extended so that it shall not end until one (1)
year from the date Principal makes such first attachment.
<PAGE> 25
IN WITNESS WHEREOF, the Principal and Surety have hereunto set their hands
and seals this the 21st day of May, 1990.
American Cable Company
Principal
(SEAL) By:
----------------------------------
President
(SEAL) American Cable Holding Company
Surety
By:
----------------------------------
Title
<PAGE> 26
APPENDIX 3
AGREEMENT NOT TO CANCEL WITHOUT NOTIFICATION TO:
Georgia Power Company
It is agreed that in the event of the intended cancellation or termination
of this policy or an intended reduction of the coverages of this policy, or any
other intended action by the insurer that has the effect of limiting or reducing
the scope and extent of the coverages of this policy, the insurer shall, by
certified or registered letter, or letter delivered by messenger, mail or
deliver written notice of such intended action or actions to the Insured and to
Georgia Power Company, 333 Piedmont Avenue, Atlanta, Georgia 30308 and the
Insurer shall not thereafter take such intended action or actions until thirty
(30) days after the latest date shown on the return receipts of the registered
or certified letters of notification, or until thirty (30) days after the latest
acknowledged date of receipt of the letters of notification delivered by
messenger.
<PAGE> 27
EXHIBIT "A"
APPLICATION AND PERMIT
Date:____________________________
In accordance with the terms of the CATV Pole Attachment Agreement dated
_________________________________, application is hereby made for
_______________________________________________(Licensee) to make attachments to
the following poles as described below: Number of Poles Attached
____________________
Location(s):
Additional Information, if needed:
By:
Title:__________________________________
The permit to attach to the above mentioned poles is hereby granted
__________________________________, 19 __. subject to the terms of the Pole
Attachment Agreement.
GEORGIA POWER COMPANY
By:
Title:_________________________________
<PAGE> 28
EXHIBIT B-1
[A DIAGRAM OF A SINGLE COMMUNICATION/SIGNAL TYPE
ATTACHMENT APPEARS HERE]
<PAGE> 29
EXHIBIT B-2
[A DIAGRAM OF A MULTIPLE COMMUNICATION/SIGNAL TYPE
ATTACHMENT APPEARS HERE]
<PAGE> 30
EXHIBIT B-3
[A DIAGRAM OF A COMMUNICATION/SIGNAL TYPE
ATTACHMENT CLEARANCE FROM TRANSFORMER
OR OTHER GROUNDED EQUIPMENT APPEARS HERE]
<PAGE> 31
EXHIBIT B-4
[A DIAGRAM OF A COMMUNICATION/SIGNAL TYPE
ATTACHMENT CLEARANCE FROM OUTDOOR LIGHT APPEARS HERE]
<PAGE> 32
EXHIBIT B-5
[A DIAGRAM OF A COMMUNICATION/SIGNAL TYPE ATTACHMENT
CLEARANCE MID-SPAN APPEARS HERE]
<PAGE> 33
EXHIBIT B-6
[A DIAGRAM OF A COMMUNICATION/SIGNAL TYPE ATTACHMENT
C.A.T.V. POWER SUPPLY INSTALLATION APPEARS HERE]
<PAGE> 34
EXHIBIT B-7
[A DIAGRAM OF A COMMUNICATION/SIGNAL TYPE ATTACHMENT
CLEARANCE-SERVICE DROP APPEARS HERE]
<PAGE> 35
EXHIBIT B-8
[A DIAGRAM OF A PRESERVATIVE BANDAGE FOR WOOD POLE
APPEARS HERE]
<PAGE> 36
EXHIBIT B-9
[A DIAGRAM OF IDENTIFICATION OF C.A.T.V. CABLES
APPEARS HERE]
<PAGE> 37
EXHIBIT B-10
APRIL 1990
CATV MAKE-READY AND INSPECTION CHARGE
BACKGROUND
Cost Accounting Research has investigated the feasibility of billing CATV
operators and initial make-ready and inspection charge for future pole
attachments and recommends that this procedure be implemented. This charge will
recover costs incurred by district engineers to inspect CATV routes prior to and
after construction. Currently, the cost of make-ready and inspection work is not
recovered through the FCC attachment rate.
APPLICATION
The hourly charge of $51.50 is applied to the number of hours, actual or
estimated, to perform the work. The resulting amount is billed to the cable
operators utilizing a receivable only job order.
CALCULATION
A weighted average hourly salary was calculated for distribution engineers,
associates, and field estimators. Job order overheads are applied as follows:
<TABLE>
<S> <C>
Labor $23.90
Fringe Benefits @ 32.60% 7.79
E & S @ 59.98% 13.62
A & G @ 11.60% 2.77
Light Truck - per hour of possession 1.79
Mileage (10 miles @ .16) 1.60
------
TOTAL.............. $51.50
</TABLE>
This cost should be reviewed annually.
POLE COUNT COST
The cost of poles count shall be in accordance with cost shown above or at rate
provided for in Georgia Power Company contract of pole counts.
Present Rates .39/pole
Where more than one (1) CATV company or telephone company is attached,
cost shall be shared equally between/among the licensees.
<PAGE> 38
EXHIBIT B-11
APRIL 1990
COST OF TRANSFERS
These costs are estimated for a Georgia Power Company three-man (3) crew
to include lead lineman, lineman, and WTO. It is the intent of Georgia Power
Company to recover our average cost. Crews will transfer existing facilities if
possible and reconnect bonding wires to the pole ground. We are estimating 15
minutes as an average to do this work.
<TABLE>
<S> <C>
Cost for Three-Man Crew with Equipment $39.00
Materials Required -0-
------
TOTAL.............. $39.00
</TABLE>
tvj/khm
<PAGE> 39
EXHIBIT C
CALCULATIONS USING FERC FORM NO. 1 DATA
<TABLE>
<S> <C>
NET COST A/C 364 Accumulated
OF A = Gross Pole - Depreciation - Deferred Income - .15 of Net Pole
BARE POLE Investment Reserve (Poles) Taxes (Poles)* Investment**
------------------------------------------------------------------
Number of Poles
DEPRECIATION = Depreciation Rate Gross Pole Investment
EXPENSE for Gross Pole ----------------------
Investment X Net Pole Investment**
</TABLE>
<TABLE>
<S> <C>
ADMINISTRATIVE = Total Administrative and General Expenses
EXPENSE --------------------------------------------------------------------------
Gross Plant Investment - Depreciation Reserve - Accumulated
(Electric Plant)*** (Electric Plant) Deferred Income Taxes
(Electric Plant)*
MAINTENANCE = A/C 593
EXPENSE --------------------------------------------------------------------------
Investment in - Depreciation in - Accumulated
A/Cs 364 + 365 + 369 A/Cs 364 + 365 + 369 Deferred Income Taxes
Related to A/Cs 364 +
365 + 369*
</TABLE>
<TABLE>
<S> <C>
NORMALIZED
TAXES
(EXPRESSED
AS A PERCENTAGE = A/C (408.1 + 409.1 + 409.1 + 410.1 + 411.4) - 411.1
OF NET PLANT ------------------------------------------------------------
INVESTMENT) Gross Plant - Depreciation Reserve - Deferred Income
(Total)*** Taxes*
</TABLE>
* In the calculations using FERC Form No. 1 data and FCC Form M data, we
are treating deferred taxes as most state commissions do - as a rate
base deduction. If the state utility commission includes the reserve for
deferred income taxes in the utility's capital structure at zero cost,
we would not need to make any further adjustment. See paras. 42 to 48
and note 16, supra.
** For purposes of these calculations Net Pole Investment equals Gross Pole
Investment minus the Depreciation Reserve Related to Poles minus
Accumulated Deferred Income Taxes Related to Poles.
*** For companies which have multiple operations, such as gas, electric
and/or nuclear power, the Commission, in calculating the administrative
expenses component, utilizes only the investment relating to electric
operations. However, in the computation of the taxes component, the
total gross plant investment of all of the company's operations is
utilized. The taxes paid by the utility generally relate to its entire
operations.
<PAGE> 40
EXHIBIT C
CALCULATIONS USING FCC FORM M DATA
------------------------------------------------------------
<TABLE>
<S> <C>
NET COST A/C 241 Accumulated
OF A = Gross Pole - Depreciation - Deferred Income - .05 of Net Pole
BARE POLE Investment Reserve (Poles) Taxes (Poles)* Investment**
-------------------------------------------------------------
Number of Poles
DEPRECIATION = A/C 608
EXPENSE Depreciation Rate for X Gross Pole Investment
Gross Pole Investment ---------------------
Net Pole Investment**
</TABLE>
<TABLE>
<S> <C>
ADMINISTRATIVE = Total Administrative and General Expenses
--------------------------------------------------------------------
EXPENSE Gross Plant - Plant Depreciation - Accumulated Deferred
Investment Reserve (Acct 171) Income Taxes (Plant)
(Acct 176.1)*
MAINTENANCE = Account 602.1*** [/s/ THIS ACCT SHOULD BE 601.1]
---------------------
EXPENSE Net Pole Investment**
</TABLE>
<TABLE>
<S> <C>
NORMALIZED
TAXES
(EXPRESSED
AS A PERCENTAGE = A/C (304 + 306 + 307 + 308.1 + 308.2) - 309
OF NET PLANT ------------------------------------------------------------------
INVESTMENT) Gross Plant - Plant Depreciation Reserve - Accumulated
Deferred Income
Taxes (Plant)
(Acct 176.1)*
</TABLE>
**** This account (601.1) relates directly to pole maintenance and no
further calculation is necessary. See Group W Cable, Inc. v.
Wisconsin Telephone Co., Mimeo No. 4474 (released May 30, 1984).
<PAGE> 41
EXHIBIT C
APPENDIX B
ACCOUNT NO. NAME LOCATION
FERC 364 Poles, Towers & Fix- p, 203, line 59, col. g
tures
FERC 365 Overhead Conductors p. 203, line 60, col.
FERC 369 Services p. 203, line 64, col. g
FERC 593 Maintenance of Over- p. 322, line 118, col. b
head Lines
FERC 408.1 Taxes Other Than p. 114, line 11, col. c
Income Taxes
FERC 409.1 Income Taxes - Federal p. 114, line 12, col. c
FERC 409.1 Income Taxes - Other p. 114, line 13, col. c
FERC 410.1 Deferred Income Taxes p. 114, line 14, col. c
FERC 411.1 Deferred Income Taxes p. 114, line 15, col. c
(credit)
FERC 411.4 Investment Tax Credit p. 114, line 16, col. c
Adj.
Depreciation p. 200, line 22, col. b
Total Administrative
and General Expenses p. 323, line 167, col. b
Gross Plant Investment p. 200, line 7, col. b
Depreciation Rate for
Accounts 364, 365 and p. 336, col. c
369
Investment in Accounts
364, 365 and 369 p. 203, lines 59 & 60
& 64, col. g
FCC FORM M 100.1 Telephone Plant in Ser- p. 12, line 1, col. c
vice
FCC FORM M 171 Depreciation Reserve p. 12, line 7, col. c
FCC FORM M 176.1 Deferred Income Taxes p. 13, line 83, col. c
(Accum.)
FCC FORM M 241 Pole Lines Investment p. 19, Sch 12A, col. h
FCC FORM M 304 Investment Credits p. 16, line 5, col. b
FCC FORM M 306 Federal Income Taxes, p. 16, line 6, col. b
Operating
FCC FORM M 307 Other Operating Taxes p. 16, line 7, col. b
FCC FORM M 308.1 Operating Federal
Income Taxes
Deferred - Accelerated
Tax Depreciation p. 16, line 8, col. b
FCC FORM M 308.2 Operating Federal
Income Taxes
Deferred - Other p. 16, line 9, col. b
FCC FORM M 309 Income Credits and
Charges Resulting
from Prior Deferral of
Federal Income Taxes p. 16, line 10, col. b
FCC FORM M 608 Depreciation Rate for
Account 241 p. 32, Sch. 14C, col. d
FCC FORM M 601.1 Repair for Pole Lines p. 56, Sch. 35, Oper.
Exp, line 1
Depreciation Reserve
for Account 241 p. 30, Sch. 14B
Gross Plant Investment p. 12, Sch. 10, line 1,
col. c
Total Administrative
and General Expenses p. 57, line 56, col. b +
p. 57, line 67, col. b
APPENDIX C
Subpart J of Chapter I of title 47 of the Code of Federal Regulations is amended
to read as follows:
1.The authority citation for Part 1 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154,
303; Implement, 5 U.S.C. 552, unless otherwise noted.BB
2.Section 1.1402 is amended by revising paragraphs (d) and (e) to read as
follows:
SECTION 1.1402. DEFINITIONS
* * * * *
(d) The term "complaint" means a filing by a cable television system operator,
a cable television system association, a utility, or an association of utilities
alleging that a rate, term, or condition for a pole attachment is not just and
reasonable.
(e) The term "complainant" means a cable television system operator, a cable
television system association, a utility, or an association of utilities who
files a complaint.
* * * * *
3.Section 1.1404 is amended by revising paragraph (a), (d1), (d2), (g2), (g4),
(g5), (g9), (g10), (h) and (i) to read as follows:
SECTION 1.1404. COMPLAINT
(a) The complaint shall contain the name and address of the complainant, name
and address of the respondent, and shall contain a verification (in the form in
Section 1.721(b)), signed by the complainant or officer thereof if complainant
is a corporation, showing complainant's direct interest in the matter complained
of. Counsel for the complainant may sign the complaint. Complainants may join
together to file a joint complaint. Complaints filed by associations shall
specifically identify each utility or cable television company who is a party to
the complaint and shall be accompanied by a document from each identified member
certifying that the complaint is being filed on its behalf.
* * * * *
(d)(1) A statement that the utility uses or controls poles, ducts, or conduits
used or designated, in whole or in part, for wire communication; and
(d)(2) A statement that the cable television operator currently has attachments
on the poles.
* * * * *
(g)(2) The investment in crossarms and other items which do not reflect the
cost of owning and maintaining poles, if available;
* * * * *
(g)(4) The depreciation reserve from the investment in crossarms and other
items which do not reflect the cost of owning and maintaining poles, if
available;
(g)(5) The total number of poles: (i) owned; and (ii) controlled or used by the
utility. If any of these poles are jointly owned, the complaint shall specify
the number of such jointly owned poles and the percentage of each joint pole or
the number of equivalent poles owned by the subject utility;
<PAGE> 42
EXHIBIT D
Repeated late payments subject Licensee to a one and one-half percent (1-1/2%)
late fee that will be applied monthly to the outstanding balance.
<PAGE> 1
EXHIBIT 10.19
August 6, 1970
LICENSE AGREEMENT
FOR
POLE ATTACHMENTS
THIS AGREEMENT made this 19th day of June , 1990, between SOUTH
CENTRAL BELL TELEPHONE COMPANY, a corporation organized and existing under the
laws of the State of Georgia having its principal office in the City of
Birmingham, Alabama, hereinafter called Licensor, and Montgomery CableVision &
Entertainment, Inc., hereinafter called Licensee.
WITNESSETH:
WHEREAS, Licensee now proposes to furnish certain communications
services in Montgomery, Alabama.
WHEREAS, Licensee will need to place and maintain aerial cables,
equipment and facilities within the area described above and desires to place
such cables, equipment and facilities on poles of Licensor; and
WHEREAS, Licensor is willing to permit, to the extent it may lawfully
do so, the placement of said cables, equipment and facilities on Licensor's
poles where reasonably available and where such use will not interfere with
Licensor's service requirements, or the use of Licensor's facilities by others.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties do hereby mutually covenant and agree
as follows:
<PAGE> 2
- 2 -
ARTICLE I
DEFINITIONS
As used in this Agreement:
Licensor's "poles" mean poles owned by Licensor.
"Anchor" means an anchor owned by Licensor which is a device to
reinforce the pole to which it is attached by a guy wire.
The term "joint-use arrangement" shall be construed to mean an
arrangement whereby each party to an agreement owns poles and have agreed that
the other party has the right to attached to and occupy space upon the poles
owned by it.
ARTICLE II
SCOPE OF AGREEMENT
(a) Subject to the provisions of this Agreement, the Licensor will
issue to Licensee, for any lawful communications purpose, revocable,
nonexclusive license authorizing the attachment of Licensee's cables, equipment
and facilities to Licensor's poles and anchors within the areas shown on
Exhibit A attached hereto or described above.
(b) No use, however extended, of Licensor's poles and anchors or
payment of any fees or charges required under this Agreement shall create or
vest in Licensee any ownership or property rights in said poles and anchors,
but Licensee's right therein shall be and remain a mere license. Nothing
herein contained shall be construed to compel Licensor to construct, retain,
extend, place or maintain any facilities not needed for its own service
requirements.
(c) It is recognized by the Licensee that the Licensor has
heretofore entered into, or may in the future enter into agreements and
arrangements with others not parties to this Agreement regarding the poles and
anchors covered by this Agreement. Nothing herein contained shall be construed
as
<PAGE> 3
- 3 -
a limitation, restriction or prohibition against Licensor with respect to such
other agreements and arrangements.
(d) The rights of the Licensee shall at all times be subject to
any present or future joint-use arrangement between Licensor and any other
party regarding use of the facilities covered herein.
ARTICLE III
FEES AND CHARGES
(a) The Licensee shall pay to Licensor the fees and charges as
specified in and in accordance with the terms and conditions of APPENDIX 1-P,
attached hereto and made a part hereof.
(b) Nonpayment of any amount due under this Agreement shall
constitute a default of this Agreement.
(c) Licensee shall furnish bond or other satisfactory evidence of
security in such amount as Licensor from time to time may require, in an
initial amount of $5,000.00 but not exceeding $25,000.00, to guarantee the
payment of any sums which may become due to Licensor for fees due hereunder or
charges fro work performed for the benefit of Licensee under this Agreement,
including the removal of Licensee's facilities upon termination of this
Agreement by any of its provisions or upon termination of any license issued
hereunder. This bond requirement may be waived in writing by Licensor.
(d) At the expiration of one (1) year(s) from the date of this
Agreement, and at the end of every one (1) year period thereafter, the fees and
charges specified in APPENDIX 1-P may be adjusted at the request of Licensor or
Licensee after notice made in writing to the other party not later than sixty
(60) days before the end of the initial one (1) year period or the end of any
subsequent one (1) year period thereafter. If agreement is not reached as to
fees and charges within sixty (60) days after notification of the desire
<PAGE> 4
- 4 -
of either party to adjust fees and charges, either party may thereafter
terminate this Agreement, which termination shall be effective upon six (6)
month's written notice to the other party.
(e) Changes or amendments to APPENDIX 1-P shall be effected by the
separate execution of APPENDIX 1-P as so modified. The separately executed
APPENDIX 1-P shall become a part of and be governed by the terms and conditions
of this Agreement.
ARTICLE IV
SPECIFICATIONS
(a) Licensee's cables, equipment and facilities shall be placed
and maintained at Licensee's expense in accordance wit the requirements and
specifications of APPENDIX 2-P attached hereto and made a part hereof. Unless
different standards are specified herein, the provisions of the National
Electrical Safety Code (6th edition), and any amendments thereto or
replacements thereof, shall be applicable.
(b) Changes or amendments to APPENDIX 2-P shall be effected by the
separate execution of APPENDIX 2-P as so modified. The separately executed
APPENDIX 2-P shall become a part of and be governed by the terms and conditions
of this Agreement.
(c) Failure to comply with this Article or Appendix 2-P to this
Agreement shall constitute a default of this Agreement.
ARTICLE V
LEGAL AUTHORITY
(a) Licensee shall submit to Licensor satisfactory evidence of
Licensee's lawful authority to place, maintain and operate its facilities
within public streets, highways, and other thoroughfares and shall secure any
necessary
<PAGE> 5
- 5 -
permits and consents from Federal, State, County and Municipal authorities and
from the owners of property to construct, maintain and operate facilities at
the locations of poles and anchors of Licensor which it uses. Licensee shall
indemnify and reimburse Licensor for all loss and expense which results from
claims of governmental bodies, owners of property or others that Licensee has
not a sufficient right or authority for placing and maintaining Licensee's
facilities on Licensor's poles.
(b) The parties hereto shall at all times observe and comply with,
and the provisions of this Agreement are subject to, all laws, ordinances and
regulations which in any manner affect the rights and obligations of the
parties hereto under this Agreement, so long as such laws, ordinances or
regulations remain in effect.
ARTICLE VI
ISSUANCE OF LICENSES
(a) Before Licensee shall have a right to attach to any pole or
anchor of Licensor, Licensee shall make application for and receive a
revocable, nonexclusive license therefor in the form of Exhibit 3, hereto
attached and made a part hereof.
(b) Any license granted hereunder for attachment to Licensor's
poles or anchors shall terminate without further notice to Licensee as to
individual poles or anchors covered by the license to which Licensee has not
attached within 60 days from the date that Licensor has notified Licensee that
such poles or anchors are available for attachment of the operating facilities
of Licensee.
<PAGE> 6
- 6 -
ARTICLE VII
POLE REPLACEMENTS AND REARRANGEMENTS
(a) Licensor reserves the right to refuse to grant a license for
the attachment to its poles or anchors when Licensor determines, in its
judgment, that the communication space on such pole is required for its
exclusive use or that the pole or anchor may not reasonably be rearranged or
replaced.
(b) In the event Licensor, in its judgment, determines that any
pole or anchor of Licensor to which Licensee desires to make attachments is
inadequate or otherwise needs rearrangement of the existing facilities thereon
to support or accommodate the additional facilities of Licensee in accordance
with the specifications set forth in APPENDIX 2-P, Licensor will indicate on
the application (Exhibit B) the changes necessary to provide adequate pole or
anchor space and the estimated cost thereof to Licensee and return it to
Licensee. If Licensee desires that such changes be made and returns the
application marked to so indicate, Licensor will make such changes, including
the replacement of inadequate poles or anchors, and Licensee shall pay Licensor
in accordance with the terms of APPENDIX 1-P. Licensee shall also reimburse
the owner or owners of other facilities attached to said poles or anchors for
any expense incurred by it or them in transferring or rearranging said
facilities to accommodate Licensee's attachments. Licensee shall not be
entitled to reimbursement of any amounts paid to Licensor for pole or anchor
replacements or for the rearrangement of facilities on Licensor's poles or
anchors by reason of the use of any of the pole or anchor space so acquired by
Licensor or other authorized user.
(c) Should Licensor, another utility, governmental body or other
<PAGE> 7
- 7 -
entity, with whom it then has a joint-use agreement, need for its own service
requirements the space occupied by Licensee's attachments on any of Licensor's
poles or anchors, Licensee will be notified that it shall either surrender its
license for that pole or anchor, and, at its own expense, vacate the space by
removing its attachments, or it shall authorize Licensor to replace the poles
or anchors at the expense of Licensee, in the same manner as stated in the
preceding Paragraph (b) covering the replacement or rearrangement of poles or
anchors when required to accommodate Licensee's attachments or, if Licensor
advises Licensee that Licensee's desired attachments can be accommodated on
present poles or anchors of Licensor by rearranging Licensor's facilities
thereon, Licensee shall authorize Licensor to make such rearrangements.
Licensee shall also reimburse the owner or owners of other facilities attached
to said poles or anchors for any expense incurred by it or them in transferring
or rearranging said facilities to accommodate Licensee's attachments. Any
strengthening or stepping of poles will be provided at the expense of Licensee
in accordance with the specifications in APPENDIX 2-P.
(d) When multiple applications, including application of Licensee,
are received by the Licensor with respect to any pole or anchor which must be
replaced or rearranged to provide additional space, prior to commencement of
the work on that pole or anchor, Licensor will endeavor to prorate to the
extent that it is practical between Licensee and the other applicants for pole
or anchor space, the common expenses of engineering, rearrangement and
replacement, if any, which result form he processing of multiple applications.
Licensee shall be bound by Licensor's determination as to any such proration of
costs to Licensee.
(e) Whenever it is necessary for Licensor to make pole or anchor
replacements or rearrangements in order to accommodate Licensee's cable, equip-
<PAGE> 8
- 8 -
ment and facilities, Licensor will endeavor to perform or have performed such
work after issuance of the license to, and acceptance of responsibility for
costs by, Licensee in the form of Exhibit B, as soon as is practicable upon
consideration of Licensor's service requirements.
ARTICLE VIII
CONSTRUCTION AND MAINTENANCE OF FACILITIES
(a) Licensee shall, at its own expense, make and maintain its pole
and anchor attachments in a safe condition and in thorough repair, and in a
manner acceptable to Licensor, and so as not to conflict with the use of said
poles and anchors by Licensor or by other authorized users of said poles and
anchors, or interfere with other facilities thereon or which may from time to
time be placed thereon. Licensee shall, at its own expense, upon five (5)
days' notice from Licensor, relocate or replace its facilities placed on said
poles or anchors, or transfer them to substituted poles or anchors, or perform
any other work in connection with said facilities that may be required by
Licensor provided, however, that in cases of emergency, Licensor may arrange to
relocate or replace the attachments placed on said poles or anchors by
Licensee, transfers them to substituted poles or anchors or perform any other
work in connection with said facilities that may be required by Licensor;
provided, however, that in cases of emergency, Licensor may arrange to relocate
or replace the attachments placed on said poles or anchors by Licensee,
transfer them to substituted poles or anchors or perform any work in connection
with said facilities that may be required in the maintenance, replacement,
removal or relocation of said poles or anchors or of the facilities thereon or
which may be placed thereon, or for the service needs of Licensor and Licensee
shall reimburse Licensor for the expense thereby incurred.
<PAGE> 9
- 9 -
ARTICLE IX
TERMINATION OF LICENSES
(a) Upon notice from Licensor to Licensee that the use of any pole
or anchor is not authorized by Federal, State, County or Municipal authorities
or private property owners, the license covering the use of such pole or anchor
shall immediately terminate and shall be surrendered and Licensee shall remove
its cables, equipment and facilities at once from the affected pole or poles,
anchor or anchors at Licensee's expense.
(b) Licensee may at any time remove its facilities from any pole
or anchor or Licensor, but shall immediately give Licensor written notice of
such removal and surrender of license in the form of Exhibit C, hereto attached
and made a part hereof. If Licensee surrenders its license pursuant to the
provisions of this Article, but fails to remove its facilities from Licensor's
poles or anchors within 30 days thereafter, Licensor shall have the right to
remove Licensee's facilities at Licensee's expense and without any liability on
the part of Licensor for damage or injury to Licensee's facilities. In the
event that Licensee's cables, equipment and facilities shall be removed form
any pole or anchor as provided by this Article, no attachment shall again be
made to such pole or anchor unless Licensee shall have first complied with all
of the provisions of this Agreement as though no such attachment had previously
been made.
ARTICLE X
INSPECTIONS OF LICENSEE'S INSTALLATIONS
(a) Licensor reserves the right to make periodic inspections of
any part of the cable, equipment and facilities of Licensee on its poles or
anchors and in the vicinity of Licensor's poles, anchors, cable equipment and
facilities; and Licensee shall reimburse Licensor for the expense of
<PAGE> 10
- 10 -
such inspections. Inspections will not be made more often than once a year and
upon notice to Licensee unless, in Licensor's judgment, such inspections are
required for reasons involving safety or are required because of a violation of
the terms of this Agreement by Licensee. The charge for the inspection shall
be in accordance with the terms and conditions of APPENDIX 1-P. The making of
such inspections or the failure to do so shall not operate to relieve Licensee
of any responsibility, obligation or liability assumed under this Agreement.
(b) If any cable, equipment or facilities of Licensee shall be
found on a pole or anchor for which no license is outstanding, Licensor,
without prejudice to its other rights or remedies under this Agreement or
otherwise, may (1) impose a charge, and (2) require Licensee to remove such
cable, equipment or facilities forthwith or Licensor may remove them without
liability and the expense of removal shall be borne by Licensee. For the
purpose of determining the charge, absent satisfactory evidence to the
contrary, the unlicensed use shall be treated as having existed for a period of
two (2) years prior to its discovery or for the period beginning with the date
of this Agreement, whichever period shall be shorter; and the fee, at the
appropriate rate as shown in APPENDIX 1-P, for each year and for any portion of
a year contained in such period, shall be due and payable forthwith. Any such
fee imposed by Licensor shall be in addition to its rights to any other sums
due and payable and to any claims or damages under this Agreement or otherwise.
No act or failure to act by Licensor with regard to said fee or said unlicensed
use shall be deemed as a ratification or the licensing of the unlicensed use,
and if any license in the form of Exhibit B should subsequently be issued,
after application therefor, said license shall not operate retroactively or
constitute a waiver by Licensor of any of its rights or privileges under this
Agreement or otherwise.
<PAGE> 11
- 11 -
ARTICLE XI
LIABILITY AND DAMAGES
(a) Licensor reserves to itself, its successors and assigns, the
right to maintain its poles and anchors and to operate its facilities thereon
in such manner as will best enable it to fulfill its own service requirements.
Licensor shall not be liable to Licensee for any interruption of service of
Licensee or for interference with the operation of the cables, equipment and
facilities of Licensee arising in any manner, except from Licensor's sole
negligence, out of the use of Licensor's poles and anchors.
(b) Licensee shall exercise special precautions to avoid damaging
the cables, equipment and facilities of Licensor and of other occupying
Licensor's poles and anchors and Licensee hereby assumes all responsibility for
any and all loss for such damage. Licensee shall make an immediate report to
Licensor of the occurrence of any such damage and hereby agrees to reimburse
the respective owners for the expense incurred in making repairs.
(c) Licensee shall indemnify, protect and save harmless Licensor
from and against any and all claims and demands for damages to property and
injury to or death of persons, including payments made under any Workmen's
Compensation Law or under any plan fro employees' disability and death
benefits, which may arise out of or be caused by the erection, maintenance,
presence, use or removal of Licensee's cable, equipment and facilities or by
the proximity of the cables, equipment and facilities of the Licensee to those
of Licensor or its other Licensees, or by any act of Licensee on or in the
vicinity of Licensor's poles and anchors; or Licensee's breach of any part of
this Agreement, regardless of whether or not any such damage to property or
injury to or death of persons results from Licensee's negligence. Licensee
shall also indemnify, protect and save harmless Licensor from any and all
claims and demands of whatever kind which arise directly or indirectly from the
opera-
<PAGE> 12
- 12 -
tion of Licensee's facilities including taxes, special charges by others,
claims and demands for damages or loss for infringement of copyright, for libel
and slander, for unauthorized use of television broadcast programs, and for
unauthorized use of other program material, and from and against all claims and
demands for infringement of patents with respect to the manufacture, use and
operation of Licensee's equipment whether arising from the use of Licensee's
equipment in combination with Licensor's poles, anchors or otherwise.
(d) Licensee shall carry insurance to protect the parties hereto
as named insured from and against any and all claims, demands, actions,
judgments, costs, expenses and liabilities of every kind and nature which may
arise or result, directly or indirectly, from or by reason of any loss, injury
or damage described in (c) above. The amounts of such insurance against
liability due to damage to property shall be no less than Two Hundred and Fifty
Thousand Dollars ($250,000.00) as to any one accident and $250,000.00 aggregate
and against liability due to injury to or death of persons no less than Two
Hundred and Fifty Thousand Dollars ($250,000.00) as to any one person and Five
Hundred Thousand Dollars ($500,000.00) as to any one accident. Licensee shall
also carry such insurance as will protect it from all claims under any
Workmen's Compensation Laws in effect that may be applicable to it. All
insurance required shall remain in force for the entire life of this Agreement
and the company or companies issuing such insurance shall be approved by
Licensor. The taking out of such insurance shall not relieve or limit Licensee
from its liability to Licensor under this Agreement but shall only be added
security. Licensee shall submit to Licensor certificates by each company
insuring Licensee to the effect that it has insured Licensee for all liability
of Licensee under this Agreement and that it will not cancel or change any
policy of insurance issued to Licensee except after thirty (30) days' notice to
Licensor.
<PAGE> 13
- 13 -
ARTICLE XII
LICENSE NOT EXCLUSIVE
Nothing herein contained shall be construed as a grant of any
exclusive license, right or privilege to Licensee. Licensor shall have the
right to grant, renew and extend rights and privileges to others not parties to
this Agreement, by contract or otherwise, to use any poles or anchors covered
by this Agreement.
ARTICLE XIII
ASSIGNMENT OF RIGHTS
(a) Licensee shall not assign or transfer the privileges contained
in this Agreement without the prior consent in writing of Licensor. The
assignment or transfer by Licensee of such privileges without written consent
of Licensor, shall constitute a default of Licensee's obligations and,
notwithstanding any other provisions of this Agreement, Licensor may at its
option forthwith terminate this Agreement or any license issued hereunder.
Where control of Licensee is transferred, whether by sale of stock or
otherwise, Licensee shall promptly notify Licensor in writing. Failure of
Licensee to give such notice shall be cause for termination of this Agreement,
at the option of Licensor, as provided hereinabove in this paragraph.
(b) Subject to the provisions of paragraph (a) hereof, this
Agreement shall extend to and bind the successors and assigns of the parties
hereto.
ARTICLE XIV
WAIVER OF TERMS AND CONDITIONS
Failure to enforce or insist upon compliance with any of the terms or
conditions of this Agreement or failure to give notice to declare this
Agreement or any licenses granted hereunder terminated shall not constitute a
general waiver or relinquishment of any such terms, conditions or acts but the
same shall be and remain at all times in full force and effect.
<PAGE> 14
- 14 -
ARTICLE XV
TERMINATION OF AGREEMENT
(a) If Licensee shall fail to comply with any of the terms or
conditions of this Agreement or defaults in any of its obligations under this
Agreement and shall fail within thirty (30) days after written notice from
Licensor to correct such default or noncompliance, Licensor may, at its option,
forthwith terminate this Agreement and all licenses granted hereunder, or the
Licenses covering the poles or anchors as to which such default or
non-compliance shall have occurred.
(b) In addition, the Licensor shall have the right to terminate
this entire Agreement, or individual licenses granted hereunder, without
notice:
(1) If the Licensee's facilities are maintained or used
in violation of any law or in aid of any unlawful act or undertaking;
or
(2) If any permit or other authorization which may be
required by any governmental authority, or from any property owner,
for the operation or maintenance of Licensee's cables, equipment and
facilities on Licensor's poles or anchors is revoked, denied, or not
granted before the date when possession of such permit or
authorization becomes a condition of continued operations; or
(3) If Licensee defaults under ARTICLE IV.
(c) If the insurance carrier shall at any time notify Licensor
that the policy or policies of insurance, as provided under ARTICLE XI hereof,
will be cancelled or changed so that the requirements of ARTICLE XI will no
longer be satisfied, then this Agreement shall cease and terminate upon the
effective date of such notification.
<PAGE> 15
- 15 -
ARTICLE XVI
TERM OF AGREEMENT
This Agreement shall become effective upon its execution and if not
terminated in accordance with the provisions of ARTICLES IV and XV shall
continue in effect for a term of not less than three (3) years. Either party
may terminate this Agreement at the end of the said term by giving to the other
party written notice of an intention to terminate the Agreement at least six
(6) months prior to the end of the said term; but, upon failure to give such
notice, this Agreement shall continue in force upon the same terms and
conditions for a further term of one (1) year, and for one (1) year periods
thereafter, until terminated by either party at the end of any current term by
giving to the other party written notice of an intention so to terminate the
Agreement at least six (6) months prior to the end of such term. Upon
termination of the Agreement in accordance with any of its terms, all
outstanding licenses shall terminate and shall be surrendered and Licensee
shall immediately remove its cables, equipment and facilities from all poles
and anchors of Licensor. If not so removed, Licensor shall have the right to
remove Licensee's cable, equipment and facilities at the cost and expense of
Licensee and without any liability therefor.
ARTICLE XVII
NOTICES
Notices under this Agreement may be given by posting the same in first
class mail to the Licensee as follows:
Name: Montgomery CableVision & Entertainment, Inc.
Address: 1450 Ann Street
City, State and Zip Code: Montgomery, AL 36107
<PAGE> 16
- 16 -
and to the Licensor as follows:
District Staff Manager - OSP Engineering
South Central Bell Telephone Company
Address:
-------------------------------------------------
City, State and Zip Code:
--------------------------------
ARTICLE XVIII
This Agreement supersedes all previous Agreements, including, but not
limited to the one dated ____________________, whether written or oral, between
Licensee and Licensor for placement and maintenance of aerial cables, equipment
and facilities by Licensee within the area shown by Exhibit A or otherwise
described above; and there are no other provisions, terms or conditions to this
Agreement except as expressed herein. All currently effective licenses
heretofore granted pursuant to such pervious agreements shall be subject to the
terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the day and year first above written.
LICENSEE LICENSOR
Montgomery CableVision & SOUTH CENTRAL BELL TELEPHONE
Entertainment, Incorporated COMPANY
- -----------------------------
(Name of Licensee)
By: /s/ William B. Blount By: /s/ B. M. Roberts
---------------------------- -------------------------------------
Title: President Title: General Manager - Network Prov.
------------------------- -----------------------------------
<PAGE> 17
Exhibit B
Page 1 of 2
APPLICATION FOR POLE LICENSE(1)
City and State:
Date:
District Manager - OSP Engineering
South Central Bell Telephone Company
Street Address:
----------------------------
City, State and Zip Code:
-------------------
In accordance with the terms and conditions of the License Agreement
between us, dated ______________________, 19__, application is hereby made for
a license to make attachments to the following poles and anchors:
<TABLE>
<CAPTION>
Poles No.(2) Location Attachment(3)
--------- -------- ----------
<S> <C>
----------------------------
(Name of Licensee)
By:
-------------------------
Title:
----------------------
</TABLE>
- ------------------------
(1) Applications shall be submitted in duplicate.
(2) The designation of each pole shall be given by the pole number on the
application.
(3) A complete description of all facilities shall be given, including
quantities, sizes and types of all cable and equipment.
<PAGE> 18
Exhibit B
Page 2 of 2
Revised Nov. 27, 1970
LICENSE NUMBER _____
A revocable, non-exclusive license is hereby granted to make the
attachments described in this application, subject to acceptance by Licensee of
the obligation to pay the cost of the following replacement of poles or
anchors and rearrangement of facilities on poles and anchors required to
accommodate the specified attachments:(4)
<TABLE>
<CAPTION>
Description Estimated Cost $
- ----------- ----------------
<S> <C>
SOUTH CENTRAL BELL
TELEPHONE COMPANY
By:
----------------------
Title:
--------------------
Date:
---------------------
</TABLE>
The above replacements and rearrangements are approved and the costs thereof
will be paid to Licensor in accordance with Appendix 1-P to the License
Agreement.
- ---------------------
(Name of Licensee)
By:
------------------
Title:
---------------
Date:
----------------
- ----------------------------------
(4) If any additional replacements and rearrangements other than those
described herein became involved before delivery of Licensee's approval
of such replacements and acceptance of costs to Licensor, the application must
be reprocessed to reflect such additional replacements and rearrangements
before the license becomes effective.
<PAGE> 19
EXHIBIT C
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
City and State
Date
District Manager - OSP Engineering
South Central Bell Telephone Company
Street Address:
--------------------------------
City, State and Zip Code:
----------------------
In accordance with the terms and conditions of the License Agreement
between us, dated ________________, 19__, notice is hereby given that the
license covering attachments to the following poles and anchors is surrendered
(or modified, if indicated):
License No. ________________ Dated _______________, 19__.
<TABLE>
<CAPTION>
Pole Identification Attachment Removed Modification/Surrendered
- ------------------- ------------------ ------------------------
<S> <C>
---------------------------------------------
(Name of Licensee)
By:
------------------------------------------
Title:
---------------------------------------
- --------------------------------------------------------------------------------------------
Date Notice Received by
--------------------------- -----------------------------
Total Poles Discontinued
-----------------------
Total Anchors Discontinued
----------------------
</TABLE>
<PAGE> 20
August 6, 1970
APPENDIX 1-P
SCHEDULE OF FEES AND CHARGES
THIS APPENDIX 1-P is, from the effective date hereof, an integral part
of the License Agreement between South Central bell Telephone Company, therein
called Licensor, and Montgomery Cablevision & Entertainment, Inc. therein
called Licensee, dated June 19, 1990 (hereinafter called the Agreement)
and contains the fees and charges governing the use of Licensor's poles and
anchors to accommodate the cable, equipment and facilities of Licensee in
Montgomery, Alabama. The effective date of this Appendix 1-P is June 19, 1990.
ATTACHMENTS
1. ATTACHMENT FEE: $3.00 per pole, and per anchor, per annum.
(a) Computation
For the purpose of computing the total attachment
fees due hereunder, the total fee shall be based upon
the number of poles and anchors to which attachments
are actually made, on the first day of June and the
first day of December of each year. The first
advance payment of the annual charge for licenses
granted under this Agreement shall be prorated from
the date that the attachment is made to the pole or
anchor to the first regular payment date.
<PAGE> 21
APPENDIX 1-P
Revised May 21, 1971
- 2 -
(b) Payment Date
Attachment fees shall be due and payable
semi-annually, in advance, on the 1st day of January
for the first half of the calendar year beginning on
that date, and on the 1st day of July for the last
half of the calendar year. Failure to pay such fees
within 30 days after presentment of the bill therefor
or on the specified payment date, whichever is later,
shall constitute a default of this agreement.
(c) Termination of License
No refund of any attachment fee will be paid on
account of any termination or surrender of a license
granted hereunder.
2. OTHER CHARGES
(a) Computation
(1) All charges for inspections, engineering,
rearrangements, removals of Licensee's
facilities from Licensor's poles or anchors,
and any other work performed for Licensee
shall be based upon the full cost and expense
to Licensor for performing such work. The
cost to Licensor shall be determined in
accordance with the regular and customary
methods used by Licensor in determining such
costs.
(2) The charge for replacement of poles and
anchors shall include the entire
nonbetterment cost to Licensor, including the
increased cost of large poles, the cost
<PAGE> 22
- 3 -
of transferring Licensor's facilities from
the old to the new poles, cost of removal of
replaced poles and anchors, less any salvage
and depreciation credits.
(b) Payment Date
All bills for such other charges shall be payable
upon presentment to Licensee, and failure to pay said
bill within 30 days after presentment to Licensee
shall constitute a default of this Agreement.
LICENSOR
SOUTH CENTRAL BELL
TELEPHONE COMPANY
By /s/ B. M. Roberts
----------------------------------
Title: Gen. Mgr. - Ntwk. Prov.
------------------------------
Date: June 19 1990
-------------------------------
LICENSEE
Montgomery CableVision &
Entertainment, Incorporated
------------------------------------
(Name of Licensee)
By: /s/ William B. Blount
---------------------------------
Title: President
------------------------------
Date: June 14, 1990
-------------------------------
<PAGE> 23
August 6, 1970
APPENDIX 2-P
ATTACHMENT TO POLES
THIS APPENDIX 2-P is, from the effective date hereof, an integral part
of the License Agreement between South Central Bell Telephone Company, therein
called Licensor, and Montgomery Cablevision & Entertainment, Inc. therein
called Licensee, dated June 19, 1990 (hereinafter called the Agreement) and
contains certain minimum requirements and specifications governing the
attachment of cables, equipment and facilities of Licensee (sometimes called
Attachments in this Appendix) to poles and anchors of Licensor in Montgomery,
Alabama. The effective date of the APPENDIX 2-P is June 19, 1990.
GENERAL
1. The Licensee is responsible for the proper design,
construction and maintenance of its Attachments. Attachments generally will be
limited to strand-supported cable, service drops, terminals and necessary
appurtenances deemed by Licensor to be suitable for pole mounting.
2. Any rearrangements of Licensor's facilities or replacement of
poles required to accommodate Licensee's Attachments shall be done by Licensor
or a contractor authorized by Licensor.
3. The fees and charges specified in APPENDIX 1-P shall be
applicable to all licenses granted to Licensee hereunder, without regard to the
methods of attachment used.
4. Licensee's Attachments shall be plainly identified by
appropriate marking satisfactory to Licensor.
5. Licensee's workmen shall assure themselves that any pole to be
climbed has sufficient strength or is adequately braced or guyed to support the
weight of the workmen.
<PAGE> 24
- 2 -
6. All requirements of the National Electrical Safety Code
referred to herein shall mean the Sixth Edition of such code, or any later
amendment or replacement thereof, and shall include any additional requirements
of any applicable Federal, State, Country or Municipal code, rule or order.
References to simply the Safety Code, or to N.E.S.C., have the same meaning.
7. While many of the standards and technical requirements for
Licensee's cable, equipment and facilities are set forth herein, Licensor
reserves the right to specify the type of construction required in situations
not otherwise covered din this Appendix. In such cases, Licensor will in its
discretion furnish to Licensee written materials which will specify and explain
the required construction.
VOLTAGE, POWER, ELECTRICAL INFERENCE
8. Licensee's Attachments shall not use or carry voltages or
currents in excess of the limits prescribed for communications conductors by
the National Electrical Safety Code (Definition 43). However, all parts of
Licensee's Attachments carrying voltages in excess of 50 volts AC (rms) to
ground or 135 volts DC to ground, except for momentary signalling or control
voltages, shall be enclosed in an effectively grounded sheath or shield. All
energized parts of Licensee's Attachments shall be suitably covered to prevent
accidental contact by the general public, Licensor's workmen or workmen of
another licensee having facilities on the same pole. Licensor reserves the
right to require that adequate safety procedures and equipment, in its
judgment, be followed and made a part of each of Licensee's attachments.
9. Licensor shall determine whether Licensee's Attachment cause
or may cause electrical interference with Licensor's communications facilities.
Licensee shall, on demand of Licensor, correct immediately at Licensee's
expense any such interference including, in necessary, removal of the
<PAGE> 25
- 3 -
Attachments causing the interference.
10. No Attachment shall use the earth as the sole conductor for
any part of the circuit.
11. Licensee shall not circumvent Licensor's corrosion mitigation
measures (e.g., short circuit insulating joints).
GROUNDING AND BONDING
12. All power supplies shall be grounded. The neutral side of the
power drop shall be continuous and not fused. The neutral line shall also be
bonded to the power supply cabinet. The cabinet shall be connected to an earth
ground at the pole. In areas where a power utility has a ground wire running
down the pole, the cabinet can be connected to it if the power utility permits.
Where a power utility vertical ground wire is not available, the Licensee must
place a ground rod. All metallic structures on a common pole shall be bonded
to each other, to the Licensor's strand and to the Licensee's strand.
13. (a) Where two or more aerial suspension strands are
located on the same pole in a line that is not in joint use with an electric
company and is on different through bolts, the suspension strands shall be
bonded together at one quarter mile, or less, intervals.
(b) Where two or more aerial suspension strands are
located on the same pole in a line that is also in joint use with an electrical
company which has a multigrounded neutral and is on different through bolts,
the suspension strands shall be bonded together at every pole and also bonded
to every available vertical ground conductor. In the case of power which is
non-multigrounded neutral type design, the suspension strands shall be bonded
to
<PAGE> 26
- 4 -
each other and to a low impedance ground every one-fourth (k) mile or less.
(c) The following shall be applicable to 13.(a) and
13.(b) above:
(1) Where Licensee has been authorized to attach
the bond wire to Licensor's strand, the
Licensee is responsible for completing the
bond.
(2) If Licensee is not authorized to attach to
Licensor's strand, Licensee shall attach the
bonding wire to its strand and leave a
sufficient length of wire to allow Licensor
to complete the bond.
(3) Where the strands of two or more licensees
are to be bonded together, the licensee
placing the last strand, if authorized to do
so by the other licensees, shall make both
connections.
(4) Where such authorization is not granted by
the licensee owning the existing strand,
Licensee shall attach the bonding wire to its
strand and leave enough wire to its strand
and leave enough wire to permit making a
connection to the other strand. In such
case, the licensee owning the existing strand
shall be responsible for completing the
bonding.
14. Suspension strands at trolley feeders and trolley contact
wires located on the same street shall be bonded at the first, last and every
intermediate fifth pole, until the remaining section between bonds is not more
than eight spans, with the distance between bonds never to exceed one-quarter
mile. At other locations, the strands shall be bonded at the first, last and
every intermediate fifth pole, until the remaining section between bonds is not
more than eight spans. Strands shall be bonded at or near the
<PAGE> 27
- 5 -
first pole on each side or underground dips or trolley wire crossovers.
15. Strands attached to the same bolt do not have to be bonded.
16. Where a Licensee's strand leaves a pole which carries other
strands supporting communications cables, and Licensee's strand continues to a
pole carrying power facilities but no communications facilities of Licensor,
Licensee's cable shall be:
(a) Bonded to the other communications strands on the
pole that it leaves.
(b) Bonded to an effective ground, preferably within two
spans but not greater than ten (10) spans, but in no
event greater than one-quarter mile, after leaving
said pole, and
(c) Bonded with a No. 6 solid, soft-drawn copper wire, or
its equivalent. The wire must be attached to the
strand with an approved clamp, such as a lashing wire
clamp, designed for attachment to each specific size
of strand involved (for example, Chance Lashing Wire
Clamp, Catalog Number 9000, or equivalent).
17. Strands supporting drop wire shall be bonded to the cable
suspension strand.
CLEARANCES
18. Licensee's Attachments are subject to the same clearances as
communications facilities and shall meet all of the pertinent clearance
requirements of the Safety Code. Safety Code rules covering the most commonly
encountered conditions are listed below.
<TABLE>
<CAPTION>
NESC 6th Edition
General Rule
------------------
<S> <C>
(a) Vertical clearance on poles jointly 238
occupied by communication facilities
and power facilities
</TABLE>
<PAGE> 28
- 6 -
<TABLE>
<CAPTION>
NESC 6th Edition
General Rule
------------------
<S> <C>
(b) Mid-span clearance between 238
communication facilities and
power facilities
(c) Crossing clearances of facilities 233
carried on different supports
(d) Clearances from street light 238E-3
brackets and associated wiring
(e) Clearances of conductors from 234
another line
(f) Clearances of vertical and lateral 239
conductors from other wires and
surfaces on the same support
(g) Clearances in any direction from line 235A3
conductors and supports, and to vertical
or lateral conductors, span or guy wires,
attached to the same support
(h) Vertical clearance of wires above
ground or rails
</TABLE>
LOCATION AND SPACING
19. Licensor shall specify the location of Licensee's Attachments
on each pole, including the location of Licensee's riser cables.
20. The minimum vertical separation between Licensee's suspension
strand and Licensor's suspension strand when located on the same side of the
<PAGE> 29
- 7 -
pole shall be twelve (12) inches. Where agreement with the power utility
permits the placing of cables on both sides of the pole, the vertical
separation between strands will be twelve (12) inches or more. (See Attachment
1.) Separation between the bolt holes shall in any event be at least four (4)
inches. Licensee's suspension strand and cable shall be located above
Licensor's facilities unless Licensor permits otherwise.
21. The minimum separation between Licensee's and Licensor's
suspension strands specified herein also applies between Licensee's stand and
the suspension strand of another Licensee, and between two or more strands of
Licensee provided, however, that Licensee may agree with another Licensee to
reduce the separation between their respective strands. Separation between the
bolt holes must in any event be at least four (4) inches.
22. Where Licensee's strand is above Licensor's strand, Licensee's
strand-mounted equipment housings and cable expansion loops shall be placed at
least six inches above Licensor's facilities.
23. Power supply cabinets and other pole-mounted equipment shall
not be permitted below Licensor's facilities on a pole where nay of the
following are present:
(a) Underground riser cable or pipe.
(b) Cross-connecting terminal.
(c) Pole-mounted distribution terminal.
(d) Pole-mounted closure.
(e) Apparatus case.
(f) Air dryer.
(g) Other equipment of a size that would impair climbing
or working space if an additional pole-mounted
facility were installed.
<PAGE> 30
- 8 -
24. Licensee shall be required to place all of its Attachments,
including amplifiers, power supplies, terminals, splitters and taps, so as not
to interfere with climbing space, as defined in the National Electrical Safety
Code (Rule 236).
25. Whereby mutual agreement with the power utility, attachment of
cables to both sides of the pole is permitted, two licensees may employ a
common through bolt provided one licensee notifies the licensor, in writing,
that it accepts the responsibility for maintaining the bolt. N.E.S.C. climbing
space requirements must be maintained by al parties.
26. Licensee shall not attach its facilities, except the
termination of the bond wire when authorized, to Licensor's strand or
suspension bolt.
27. Through bolts may not be placed less than 10 inches from the
top of the pole.
LOADING
28. The Licensee shall furnish to Licensor as a part of Exhibit B
to this Agreement the details as to the ultimate strength, tension at 60
degrees F, and maximum tension in its suspension strand or conductor under the
applicable storm loading specifications in the Code.
29. Licensee shall furnish to Licensor as a par of Exhibit B to
this Agreement details as to the weight and size of its cables, suspension
strands and/or conductors, with and without the ice loading, as specified by
the National Electrical Safety Code (Rule 251) or appropriate local code for
the loading area concerned. N.E.S.C. Rule 250 covers the degree of loading
(light medium, heavy) appropriate in different sections of the country. Where
a local code designates a heavier degree of loading than the N.E.S.C., the
local requirements shall govern.
<PAGE> 31
- 9 -
GUYING AND STEPPING
31. Guying will be required on poles where the total unbalanced
load, including the tension due to Licensee's Attachments under the appropriate
storm loading prescribed by the National Electrical Safety code (Rule 251),
exceeds 200 pounds unless the pole was designed as an unguyed corner pole and
the pole has adequate strength and stability, in the opinion of Licensor, to
withstand the additional load.
32. Guys, when required, shall be of such material and dimensions
as to provide adequate strength to withstand the transverse loads specified in
the National Electrical Safety Code (Rule 252B), and the longitudinal load
assumed in the Code (Rule 252C). Guys on poles which also support power
facilities shall be in compliance with the National Electrical Safety Code
(Rule 261C). On poles supporting communications facilities only, guying shall
be in compliance with Grade C construction requirements of the Code.
33. Guy guards shall be installed in compliance with N.E.S.C. Rule
282E (Supplement 1).
34. Licensee may attach its guy to Licensor's anchor rods where
Licensor specifically authorizes it in writing. Should it be necessary to
replace the anchor at a later date to provide added strength for Licensor's
requirements, the anchor shall be replaced at Licensee's expense if the
existing anchor rod would support Licensor's Attachments without regard to
Licensee's guy.
35. More than one licensee may use a common guy to sustain their
combined load.
36. Guys shall be insulated or grounded as specified in the Safety
Code (Rules 282 and 283). Licensee's guys shall not short circuit
<PAGE> 32
- 10 -
Licensor's guy insulators, where used.
37. Material used for guys shall be compatible from a corrosion
standpoint with the hardware to which it is attached. Licensor shall specify
or approve the material used by Licensee for guys attached to Licensor's
hardware.
38. Where Licensor determines that because of Licensee's activity
on a pole, the pole must be stepped, or if the Licensee requests that a pole
be stepped for Licensee's convenience, Licensor will have the pole stepped at
Licensee's expense Licensor will determine the extent, method and manner of
stepping required in view of the facilities located on the pole, safety
requirements and the hazards of stepping any particular pole.
LICENSOR
SOUTH CENTRAL BELL
TELEPHONE COMPANY
By /s/ B. M. Roberts
---------------------------------
Title: Gen. Mgr. - Ntwk. Prov.
-----------------------------
Date: June 19, 1990
------------------------------
LICENSEE
Montgomery CableVision &
Entertainment, Incorporated
-----------------------------------
(Name of Licensee)
By: /s/ William B. Blount
--------------------------------
Title: President
-----------------------------
Date: June 14, 1990
------------------------------
<PAGE> 33
- 11 -
ATTACHMENT 1
TO
APPENDIX 2-P
[A diagram showing preferable clearance and a diagram showing
alternate method of obtaining clearance appear here]
<PAGE> 1
EXHIBIT 10.20
Agreement No.: PDD-CATV-93
Effective Date: March 1, 1993
AGREEMENT FOR ATTACHMENTS
OF CABLES, AMPLIFIERS, AND ASSOCIATED EQUIPMENT
FOR THE PROVISION OF CABLE TELEVISION SERVICE
by and between
MONTGOMERY CABLEVISION & ENTERTAINMENT, INC.
and
ALABAMA POWER COMPANY
<PAGE> 2
INDEX
PARAGRAPH SUBJECT
1 Purpose of Agreement
2 Pre-Attachment Field Inspections by Licensee
3 Permission to Attach - Modifications not Required
4 Modifications to Accommodate Licensee's Facilities
5 Coordination with Joint Use Attachments
6 Coordination with Attachments of Other Cable Television
Companies
7 Licensee's Construction Requirements
8 Licensee's Responsibility - Knowledge and Understanding
of CODE and Licensor's Requirements
9 Inspections by Licensor
10 Licensor's Right to Exclude Specific Poles from
Attachment by Licensee
11 Poles Attached by More Than One Party
12 Pre-Construction Notifications Provided by Licensor
13 Transfers of Licensee's Attachments
14 Non-Reimbursed Reconstruction of Pole Lines
15 Indemnification of Licensor for Interruption of Service
16 Licensee's Right-of-Way Requirements
17 Annual Attachment Rental Rates
18 Periodic Field Counts of Poles Attached
19 Rental Payments
20 Damage to Licensor's Facilities Caused by Licensee
21 Responsibilities Associated with Licensee's Work on
Poles of the Licensor
22 Indemnification of Licensor
23 Licensee's Insurance Requirements
24 Abandonment of Poles by Licensor
25 Default of the Agreement
26 Failure to Pay Fees
27 Waiver of Terms
28 Rights of Other Parties
29 Assignment of the Agreement
30 Rights of the Licensee
31 Term of the Agreement
32 Licensee's Bond Requirements
33 Status of Previous Agreements
34 Unenforceable Provisions
35 Cumulative Remedies
<PAGE> 3
AGREEMENT FOR ATTACHMENTS
OF CABLES, AMPLIFIERS AND ASSOCIATED EQUIPMENT
FOR THE PROVISION OF CABLE TELEVISION SERVICE
THIS AGREEMENT, effective as of March 1, 1993 and made by and between
Alabama Power Company, an Alabama corporation (hereinafter called "Licensor"),
and Montgomery Cablevision & Entertainment, Inc. (hereinafter called
"Licensee").
W I T N E S S E T H
WHEREAS, Licensee proposes to furnish cable television service to
residents of a the State of Alabama within the service area of Licensor, and
desires to erect and maintain aerial cables, wires and associated appliances
throughout the area Licensee proposes to serve, and further desires to attach
certain of such cables, wires and appliances to poles of Licensor; and
WHEREAS, Licensor is willing to permit, to the extent that it may do so
lawfully and consistent with its mortgage or indenture, the attachment of said
cables, wires and appliances to its poles if, in its judgment, such use will not
interfere with its own service requirements, including considerations of economy
and safety, and if Licensor is protected and indemnified against all costs and
liabilities to it arising from such use.
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties hereto agree as follows:
1. Licensor hereby agrees to permit Licensee to attach cables, wires, and
associated appliances to poles of Licensor in accordance with the terms and
conditions hereof. Attachment to distribution poles of Licensor may be made in
accordance with the provisions of Paragraphs 2-6 below. Attachment to
transmission poles of Licensor is expressly prohibited except for those poles
for which Licensee has obtained prior written permission of Licensor to attach.
For purposes of this Agreement, a transmission pole is one on which an electric
power line having voltage higher than 35 kV is attached. If the electric line is
35kV or lower, it is a distribution line. All attachments made by Licensee shall
be made and maintained at Licensee's sole expense.
2. Before making attachment to any distribution pole or poles of Licensor,
Licensee shall make a complete and thorough field inspection of each pole to
which facilities of Licensee are to be attached and shall determine whether
modifications of Licensor's facilities (including without limitation
rearrangements of facilities on existing poles or replacement of existing poles
for additional height) are required to accommodate the attachment of facilities
by Licensee in compliance with the terms of the current revision of the National
Electrical Safety Code (CODE) and in compliance with the requirements contained
herein.
3. For distribution poles for which the said inspection has identified no
required modifications of Licensor's poles or facilities to enable Licensee's
attachments to be made in compliance with the terms of the CODE and the
requirements contained herein, Licensee may proceed with attaching its
facilities to such poles.
<PAGE> 4
4. In cases where Licensee desires to make attachments on specific
distribution poles of Licensor which have been determined by field inspection to
have insufficient space to support Licensee's attachments in compliance with the
CODE and the requirements contained herein, Licensee shall notify Licensor in
writing of the need for and nature of modifications necessary to accommodate the
attachments and Licensee shall not make attachment(s) until the necessary
modifications have been completed. Licensor will subsequently notify Licensee of
the estimated cost of such modifications, and, if Licensee still desires to make
the proposed attachments, it shall authorize Licensor to make the necessary
modifications, and it shall reimburse Licensor, on demand, for all cost incurred
by Licensor in making such modifications. Costs to be reimbursed by Licensee
shall include but not be limited to all those incurred by Licensor in connection
with transferring or rearranging facilities, replacing poles for additional
height, installing additional poles and additional guying to accommodate the
attachments of Licensee. Additionally, Licensee will, on demand, reimburse the
owner or owners of any other facilities attached to said poles for any expense
incurred by it or them in transferring or rearranging said facilities.
5. Licensor is a party to joint use agreements with various telephone
companies throughout its service area. Distribution poles used jointly by
Licensor and any telephone company under one of the joint use agreements are
referred to as joint use poles. On joint use poles, each joint use party is
allocated certain pole space. Generally, this allocated pole space is defined
for each party as follows:
a. Licensor is allocated exclusive use of eight and one-half (8-1/2) feet
of space, measured downward from the top of the pole.
b. The telephone company is allocated the exclusive use of two and
one-half (2-1/2) feet of space, measured upward from the lowest point of
attachment on the pole which is required to provide at all times CODE minimum
clearance above ground for the telephone company's cables and facilities.
Licensee's cable attachment shall be mounted a minimum of one (1) foot
above the uppermost telephone cable. At times there may not be sufficient usable
space on a joint use pole for Licensee to place its attachments outside the
space allocated exclusively for use by either Licensor or the telephone company.
In no event shall Licensee place its attachments within such space on the pole
without proper permission of the party which has been allocated the space. If
such permission is granted to Licensee by either joint use party (Licensor or
the telephone company), and at some later date the party to which the space is
allocated needs to utilize the space occupied by Licensee's attachment, Licensee
shall remove its attachment or pay Licensor to replace such pole with a taller
pole in order to provide space for Licensee.
6. At times, there may be locations where two or more cable television
companies are attached or desire to attach to the same poles of the Licensor.
Such poles may or may not be attached by a telephone company. When such cases
occur, communication and coordination among all parties (the Licensor, the
telephone company, and each cable television company) is essential for the
maintenance of sound engineering and construction standards and for the fair
allocation of costs. Generally, it is the intent of the
-2-
<PAGE> 5
Licensor that the first cable television company having facilities on poles of
the Licensor shall have those facilities located in the first position
immediately above the telephone company's attachment or its allocated space. A
cable television company placing an attachment on Licensor's poles which is
already attached by another cable television company shall place its attachment
in the next position directly above the first company's attachment. Attachments
by the second cable television company may require rearrangement of the existing
attachments of the other cable television company, the telephone company, or the
Licensor. In such cases, the party whose attachment creates the requirement for
rearrangement shall reimburse the other parties for their cost of such
rearrangement. In the event that pole replacement for additional height is
required under these conditions, the total cost for the pole replacement will be
billed by the Licensor to and paid by the party whose attachment created the
requirement for the replacement.
7. Drawings marked Exhibit A, sheets 1 through 8 inclusive, attached
hereto and made a part hereof, are descriptive of required construction under
typical conditions, and are to serve as construction guides for Licensee. Such
drawings may be superseded, amended, or added to from time to time as may be
required by Licensor. The provision of such drawings does not constitute any
undertaking by Licensor to direct, supervise, control, or inspect the
performance of any work by Licensee of anyone performing such work for Licensee.
Licensee expressly warrants that each and every pole attachment shall be
erected and maintained in a safe condition, in thorough repair, and in a manner
satisfactory to Licensor. Licensee further warrants that all facilities and
attachments of Licensee shall at all times be in strict compliance with all
requirements of the CODE, with the requirements of this agreement, and with all
applicable statutes, regulations, ordinances, rules or orders issued by any
authority having jurisdiction. Licensee expressly binds itself to indemnify and
hold harmless Licensor from and against any and all claims, demands, suits,
fines, judgments and actions of any kind or nature presented or brought for any
claim or liability arising from or based on the violation of the CODE or any
such statute, regulation, ordinance, rule or order or requirement of this
Agreement on the part of Licensee, its agents, servants, contractors or
subcontractors.
8. Licensee shall be responsible for knowing and understanding the
requirements of the CODE and the requirements of this Agreement and for
conducting the required field inspections of poles prior to making attachments
to identify where modifications are required. Failure to strictly comply with
the CODE and the requirements of this Agreement by Licensee shall constitute a
default of this Agreement and may result in cancellation of this Agreement.
9. Licensor shall have the right, but shall not be obligated, to inspect
each attachment made by Licensee on its poles subsequent to the date of this
Agreement and to make special inspections of any of Licensee's attachments for
the specific purpose of identifying violations of CODE minimum provisions and
Licensor's requirements by Licensee's facilities. If, in the opinion of the
Licensor, the Licensee is not committed to strict compliance with the CODE and
the Licensor's requirements, the Licensor may provide prior notice to the
Licensee of such special inspections, the Licensee may have its representative
accompany and participate in such special inspections, and the
-3-
<PAGE> 6
Licensee shall, on demand, reimburse Licensor for its expense of such special
inspections; provided, however, that Licensor shall not bill Licensee for that
portion of any inspection devoted specifically to Licensor's facilities during
any such inspection. Licensor's right to make inspections and any other
inspection made pursuant to such right shall not relieve Licensee of any
responsibility, obligation, or liability imposed by law or assumed under this
Agreement.
10. Licensor reserves the right to identify specific poles which are
required for its sole use and for which attachment by the Licensee is
prohibited.
11. Licensee shall comply with all rules and procedures which are
established by Licensor at any time during the term hereof which are applicable
to the pole attachments of Licensee, including without limitation rules and
procedures to implement and allocate modification billing and to provide for an
orderly process of pole attachment in the event that Licensee and one or more
other parties desire to attach the same poles.
12. Licensor will endeavor to provide to Licensee such prior notification
of planned new construction, re-construction or modification of pole lines as
may be reasonable under the circumstances. However, the continuing practice of
providing such notifications shall not constitute an obligation on the part of
Licensor to provide such notifications. If Licensee desires that such new
construction, re-construction, or modification include provisions for poles or
pole height in addition to that required by Licensor in order to accommodate
Licensee's attachments, Licensee shall be billed the estimated installed cost of
additional poles, pole height, or other facilities which are required to
accommodate Licensee's attachments. Such costs shall be determined solely by
Licensor.
13. Whenever Licensor has need to replace, for any reason, any of its
poles to which facilities of Licensee are attached, Licensor shall have the
right, but shall not in any way be obligated, to transfer the facilities of
Licensee from the replaced pole(s) to the replacement pole(s). It is intended
that transfers of Licensee's facilities by Licensor will be limited to cables
and service drops which are attached to poles by tangent or dead-end type
construction and for which the transfer can be accomplished without the
requirement to cut or splice the cables or service drops. Down guys may also be
transferred by Licensor, at its discretion.
Licensor shall not be required to provide advance notification to Licensee
for the transfer of Licensee's facilities by Licensor and such transfers may be
performed by Licensor at its sole discretion.
Licensee shall pay, on demand, to Licensor $20.00 for each pole on which
such transfer or transfers of facilities are made by Licensor during the initial
year this Agreement is in effect. After the initial year of this Agreement, this
fee may be reviewed annually and may be adjusted upward or downward to more
accurately reflect Licensor's actual cost of making such transfers of
facilities.
-4-
<PAGE> 7
Without limiting the foregoing provisions of this Paragraph 12, Licensee
shall, at any time, at its own expense, within thirty (30) days of the date of
written notice from Licensor, remove, relocate, replace or renew its facilities
placed on said poles, or transfer them to substituted poles or perform any work
in connection with said facilities that may be required by Licensor; provided,
however, that in the event Licensee fails to so remove, relocate, replace,
renew, or transfer its facilities within thirty (30) days of the date of such
written notice, Licensor may itself or by contract with others remove, relocate,
replace, renew, or transfer such facilities, and Licensee shall be liable for
Licensor's cost and expenses incurred in performing such work.
14. In the event a third party necessitates the reconstruction of an
existing pole or pole line where there is no reimbursement of cost from such
third party to Licensor, Licensor shall design the pole or pole line in the new
location to meet Licensor's needs, and any requirements of Licensee for
intermediate poles or for extra pole height shall be treated for billing
purposes as if the pole line construction were a new line.
15. Licensor reserves to itself, its successors and assigns, the right to
maintain its poles and to operate its facilities thereon in such manner as will
best enable it to fulfill its own service requirements. Licensor shall not be
liable to Licensee for any interruptions to service of Licensee or for
interference, however caused, with the operation of the cables, wires and
appliances of Licensee, arising in any manner out of the use of Licensor's poles
hereunder, including any effects undesirable to Licensee which the presence,
breakdown, operation, maintenance, alterations of, or additions to, the lines
and other facilities of Licensor or those jointly using Licensor's poles may
have upon the attachments or the transmission of Licensee, even if the cause of
such effects may be attributable in whole or in part to negligence (including,
without being limited to, Licensor's contributory, joint, concurring, active and
passive negligence) on the part of Licensor or its agents.
16. Licensee shall, before making attachment to Licensor's poles, secure
any required permission or consent from federal, state, county, or municipal
authorities, or from owners of property upon which the poles may be located to
erect and maintain Licensee's facilities thereon. Licensee shall not infer any
such authority to erect and maintain its facilities on poles of the Licensor
from its pole attachment agreement or from the easements secured from
authorities or property owners by the Licensor to erect and maintain its
facilities.
17. Licensee shall pay to Licensor, for attachments to poles under this
Agreement, annual pole attachment rental rates for each twelve month period from
July 1 through June 30 of each year (the "Annual Rental Year") during the term
hereof, as calculated in accordance with the formula and set forth in Exhibit B.
Such rates are the product of negotiations on the part of Licensor and the
Alabama Cable Television Association. In executing this Agreement, Licensor and
Licensee agree that both Licensor and Licensee shall be bound by these
negotiated rates through the term of this Agreement.
18. The number of attachments for which Licensee will pay rental to
Licensor will be determined by actual count. Licensor reserves the right to
-5-
<PAGE> 8
perform the field count with its employees or to contract the performance of the
field count to an outside party. Licensee will be notified and given the
opportunity to accompany Licensor or its contractor and to participate in the
field count. Licensee shall have the option of participating in the field count
by providing one half (1/2) of the personnel effort required to accomplish the
count or by paying one half (1/2) the total cost of performing the count, such
cost to be determined by the Licensor. If the Licensee elects not to have its
personnel participate in the actual field count, it shall so notify Licensor in
writing and it shall provide a written statement of its intent to accept the
field count results as found by the Licensor. Licensee shall provide such
written notification and statement prior to the scheduled beginning date of the
field count.
A field count will be performed each third year or, if the Licensee and
the Licensor mutually desire and agree, field counts may be performed at other
intervals. The year of the first field count to be performed under this
provision will be determined by Licensor but will occur during the first three
(3) years after the effective date of this Agreement. For Rental Years for which
no actual field count is performed, the number of attachments will be estimated
by Licensor, and such estimates will be based on previous counts or existing
records. Upon the performance of an actual field count of pole attachments
subsequent to Rental Years for which the number of attachments were estimated,
adjustments will be made, if appropriate, to the rental amounts for those Rental
Years for which the number of attachments were estimated. Such adjustments will
be calculated by assuming that any variation in the number of attachments
resulting from the field counts as compared to estimates occurred uniformly over
the period of time between actual field counts. No interest or penalties shall
apply to either party for under-payment or over-payment of rental which may
result from the estimation of number of attachments.
As an alternative to performance of the actual field count described
herein, the parties may, if mutually agreeable, determine the number of
attachments from existing maps and/or attachment records provided that such maps
or records exist and provided that each party agrees that results with
reasonable accuracy can be achieved. If this method is selected, any maps and/or
records belonging to one of the parties and utilized to count attachments shall
be made accessible to the other party and the number of attachments shall be
determined through a mutual and cooperative effort of both parties. The results
of attachment counts performed in this manner shall be treated, for rental
purposes, as if the results were achieved by an actual field count.
For the purpose of rental calculation, the effective date for new
attachments and removals of existing attachments shall be July 1 following the
actual date of installation or removal.
19. Invoices for the annual rental amount for the next Rental Year will be
provided to Licensee on or before June 30 of each year. The annual rental to be
billed on each such invoice shall be determined by multiplying the appropriate
annual rental rate for that Rental Year as described in paragraph 17 above by
the number of poles attached as determined by actual field count or by
estimation procedures described in paragraph 18 above. Payment of invoice
amounts shall be due upon receipt of the invoice and those not paid within
thirty (30) days after receipt shall be subject to interest at a rate equal to
the prime interest rate of AmSouth Bank N.A. on the last day of the month
immediately preceding the month in which the invoice becomes
-6-
<PAGE> 9
delinquent. If for any reason, attachments for which rental is paid in advance
hereunder cease to exist or cease to be the property of Licensee, no portion of
said rental shall be refundable.
20. In conducting its operations under this Agreement, Licensee shall
strive to avoid causing damage to facilities of Licensor or other parties
attached to poles of Licensor, and Licensee hereby assumes responsibility for
such damage caused by it. Licensee shall make an immediate report to the
Licensor or to the other party in the event that such damage occurs and the
Licensee hereby agrees to reimburse the Licensor or other party for the expense
of making repairs.
21. With respect to the attachment of its lines and facilities to
Licensor's poles or other work undertaken by Licensee pursuant to this
Agreement, Licensee shall be solely responsible for insuring that all work is
performed in accordance with the requirements of this Agreement, and Licensor
shall not exercise any control over the manner in which such work is performed.
Licensee shall not cause or permit any person, other than an experienced workman
who knows and appreciates the character of electricity and the danger of working
in proximity to wires and other electric distribution facilities which are or
may be energized with electricity at the various voltages used in supplying
electricity for public use, to climb any pole or to work upon any of Licensee's
equipment attached to any pole belonging to Licensor; and, as to any such person
as may be authorized or permitted by Licensee to climb any such pole or do any
such work, it shall not be Licensor's responsibility to warn him of the danger
involved in working or being close to Licensor's wires and facilities, nor to
provide supervision over the work being done by such person at any time.
22. The use of Licensor's poles as provided for in this Agreement is not
for the benefit of Licensor, rather it is solely for the benefit of Licensee in
carrying on its business of supplying television antenna cable service; and it
is understood that the hazards of electricity transmitted at voltages necessary
for public use over Licensor's facilities may be increased by the existence of
Licensee's facilities which will be attached to Licensor's poles; and, this
Agreement is entered into with the explicit understanding that Licensee assumes
sole responsibility for all injuries and damages arising, or claimed to have
arisen, by, through or as a result of its facilities attached to Licensor's
poles, or attached to the poles belonging to others to which Licensor's
facilities are then attached, even though Licensor's electric facilities may
have caused or contributed to such injuries and damages.
Accordingly, without limiting the effect of the provision of the
immediately preceding paragraph, Licensee expressly agrees to indemnify, defend
and save harmless Licensor from all claims, demands, actions, judgments, loss,
costs, and expenses arising or claimed to have arisen by, through or as a result
of Licensee's facilities attached to Licensor's poles or attached to the poles
belonging to others to which Licensor's facilities are then attached, or as a
result of Licensee's acts or omissions or the acts or omissions of Licensee's
contractors and sub-contractors, if any, in respect to (a) damage to or loss of
property, (b) injuries or death to persons (including but not limited to injury
to or death of Licensor's or Licensee's employees or members of the public), (c)
any and all interference with the service rendered by Licensee over its
facilities including television and
-7-
<PAGE> 10
radio reception to customers or patrons of Licensee, (d) any interference with
the television or radio reception of any person which may be occasioned by the
installation or operation of Licensee's facilities, (e) the proximity of
Licensee's facilities to the wires and other facilities of Licensor, (f) any
claims upon Licensor for additional compensation for use of its distribution
rights-of-way for an additional use, and (g) any injuries sustained and/or
occupational diseases contacted by Licensee's employees and the employees of
Licensee's contractors or subcontractors, if any, of such nature and arising
under such circumstances as to create liability therefore by Licensee or
Licensor under the Workmen Compensation Act and all amendments thereto of the
state having jurisdiction thereof, including also all claims and causes of
actions of any character which any such employees, the employers of such
employees, and all persons or concerns claiming by, under or through them or
either of them may have or claim to have against Licensor resulting from or in
any manner growing out of any such injuries sustained or occupational diseases
contacted. So far as it is reasonably possible, Licensor will provide sufficient
notice to Licensee of any claim against Licensee to allow Licensee to perform an
investigation, to prepare its defense, and to seek a negotiated settlement.
23. Licensee shall carry insurance, to protect the parties hereto from and
against any and all claims, demands, suits and judgments, and liabilities of
every name and nature which may arise or result, directly or indirectly, from or
in connection with Licensee's performance pursuant to this Agreement. Licensor
shall be an "additional insured" on each insurance policy which provides such
coverage. The amounts of such insurance against liability due to damage to or
loss of property and to injury or death of persons as to any one occurrence
shall be at least one million dollars ($1,000,000.00). Each such policy shall
provide broad form contractual coverage. Licensee shall also carry such
insurance as will protect it from all claims under any Workmen's Compensation
Laws in effect that may be applicable to it, including employers liability
coverage in an amount of at least one million dollars ($1,000,000) combined
single limit. All insurance required shall be kept in force by Licensee for the
entire term of this Agreement and the company or companies issuing such
insurance shall be approved by Licensor. Licensee shall submit to Licensor
certificates by each company insuring Licensee and Licensor to the effect that
it has insured Licensee and Licensor for all liabilities of Licensee and
Licensor arising under this Agreement and that it will not cancel, change, nor
fail to renew any policy of insurance issued to Licensee except after thirty
(30) days' written notice to Licensor. It is understood that the provisions
requiring Licensee to carry insurance shall not be construed as in any manner
waiving or restricting the liability of Licensee as to any obligations imposed
under this Agreement.
24. If Licensor desires at any time to abandon any pole which is attached
by Licensee, it shall give Licensee notice in writing to that effect at least
sixty (60) days prior to the date on which it intends to abandon such pole. If
at the expiration of such period, Licensor shall have no attachments on such
pole but Licensee shall not have removed all of its attachments therefrom such
pole shall thereupon become the property of Licensee, and Licensee shall save
harmless Licensor from all obligation, liability, damage, costs, expenses or
charges incurred thereafter, because of, or arising out of, the presence or
condition of such pole or of any attachments thereon; and shall in addition pay
Licensor a sum equal to the then value in place, as determined by the Licensor,
of such abandoned pole or poles, or such other equitable sum as may be agreed
upon between the parties.
-8-
<PAGE> 11
25. If Licensee shall fail to comply with any of the provisions of this
agreement, or default in any of its obligations under this Agreement and shall
fail within thirty (30) days after written notice from Licensor to correct such
default or non-compliance, Licensor may, at its option, forthwith terminate this
Agreement covering the poles as to which such default or non-compliance shall
have occurred and remove such attachments of Licensee at Licensee's expense, and
no liability therefor shall be incurred by Licensor because of such action or,
alternatively, may at its option forbid new attachments to its poles by Licensee
until such time as any failure to comply is corrected.
26. Failure to pay fees, expenses or any other charges under this
Agreement within thirty (30) days after presentation or on the specified payment
date, whichever is later, shall constitute a default of this Agreement.
27. Failure to enforce or insist upon compliance with any of the terms or
conditions of this Agreement shall not constitute a general waiver or
relinquishment of any such terms or conditions, but the same shall be and remain
at all times in full force and effect.
28. Nothing herein contained shall be construed as affecting the rights or
privileges previously conferred by Licensor, by contract or otherwise, to
others, not parties to this Agreement, to use any poles covered by this
Agreement; and Licensor shall have the right to continue and extend such rights
and privileges. The attachment privileges herein granted shall at all times be
subject to such existing contracts and arrangements. The attachment privileges
herein granted shall be non-exclusive and Licensor shall have the right at its
sole discretion to grant attachment privileges of any sort to any person, firm
or corporation.
29. Licensee shall not assign, transfer or sublet any right or privilege,
including the license to attach to Licensor's poles, hereby granted without the
prior consent in writing of Licensor. Licensee agrees to pay an assignment fee
of two hundred and fifty dollars ($250) for each Consent to Assignment prepared
by Licensor, during the year in which this Agreement is executed. For subsequent
years, the assignment fee shall be reviewed and, at the discretion of Licensor,
revised to reflect Licensor's actual cost of preparing and executing each
Consent to Assignment. Licensor may, at its option require execution of a new
agreement in lieu of granting its consent for assigning, transferring or
subletting any right, license, or privilege under this Agreement. Subject to the
provisions of this paragraph, this Agreement shall extend to and bind the
successors and assigns of the parties hereto.
30. No use, however extended, of Licensor's poles under this Agreement
shall create or vest in Licensee any ownership or property rights in said poles
but Licensee's rights therein shall be and remain a mere license. Nothing herein
contained shall be construed to compel Licensor to maintain any of said poles
for a period longer than demanded by its own service requirements.
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<PAGE> 12
31. This Agreement shall become effective upon the date stated above and
shall continue in effect for a period of three years unless termination is
mutually desirable and agreeable to both parties. Upon completion of the three
year initial term, either party may terminate the Agreement by giving 90 days
advance notice in writing of its intent to do so to the other party. So long as
neither party provides notice of termination to the other party, the Agreement
shall remain in full force and effect. Upon termination by either party, the
Licensee shall remove its cables, wires, and appliances from all poles of the
Licensor. If not so removed, the Licensor shall have the right to remove them at
the cost and expense of the Licensee and without any liability therefor.
However, if this Agreement is terminated pursuant to this paragraph or any other
paragraph in this Agreement, the obligations of the Licensee under this
Agreement shall remain in full force and effect until such time as Licensee's
cables, wires, and appliances are removed from Licensor's poles.
32. Licensee shall furnish a bond to guarantee the payment of any sums
which may become due to Licensor under any of the provisions of this Agreement
including pole rental, work performed for the benefit of Licensee, or the
removal of attachments upon termination of this Agreement by any of its
provisions in the amount as specified in the following schedule:
<TABLE>
<CAPTION>
Number of Attachments Amounts of Coverage
--------------------- -------------------
<S> <C>
0 - 1000 $10,000
1001 - 1500 15,000
1501 - 2000 20,000
2001 - 2500 25,000
</TABLE>
As the number of attachments exceed 2,500, the amount of coverage
shall be increased by $5,000 for each additional 500 attachments. The minimum
amount of coverage is $10,000 and the maximum is $100,000. For the purpose of
determining the amount of coverage required, the number of attachments shall be
the total number for which annual pole rental was billed at the beginning of the
current Annual Rental Year.
33. This Agreement supersedes all previous agreements, representations,
and understandings between Licensor and Licensee for placement and maintenance
of aerial cables, equipment and facilities of Licensee on poles of Licensor, and
may not be modified except by a writing executed by an authorized representative
of each party hereto. All attachments of Licensee currently installed on poles
of Licensor shall be subject to the terms and conditions of this Agreement.
34. Should any provision of this Agreement be held unenforceable by any
court of competent jurisdiction, either party may terminate this Agreement upon
thirty (30) days written notice to the other.
35. The remedies reserved to Licensor in this Agreement are cumulative and
shall be in addition to any other further remedies provided at law.
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed the day and year first above written.
WITNESS: /s/ MONTGOMERY CABLEVISION &
ENTERTAINMENT, INC.
Licensee
/s/ Alice Jackson
- -------------------------------
Title: Office Manager
By:/s/ R. Dean Rush
-------------------------------
Its: Plant Manaer
WITNESS: ALABAMA POWER COMPANY
/s/ Robert M. Wright
- -------------------------------
Title: Staff Engineer
By:/s/ R. E. Prater
-------------------------------
Its: Manager - T & D Support
-11-
<PAGE> 14
EXHIBIT A SHEETS 1-8
[DIAGRAMS OF DISTRIBUTION STANDARDS; JOINT USE - CATV AND TELEPHONE APPEAR HERE]
<PAGE> 15
EXHIBIT B
RATE FORMULA
Annual Pole = Net Investment X Carrying X Space Occupied by CATV
----------------------
Rental Rate per Pole Charge Usable Space
Where,
*
Net Investment = Acct 364 X .85
Per Pole + Total
Lightning Arr. X Net Dist. Inv. / Number
in Acct 368 ---------------- of Poles
+ Gross Dist. Inv. in Service
1/2 Pole Grounds
in Acct 365
**
Carrying = Cost of + Taxes + Maintenance + Depreciation + Administrative
Charge Capital Expense Expense Expense
and, ***
Cost of Capital = Authorized ROR on Net Investment
Taxes = Acct 408.1 + Acct 409.1 + Acct 410.1 + Acct 411.1 + Acct 411.4
---------------------------------------------------------------
Acct 101 - Acct 108
Maintenance = Acct 593
------------------------------------------------------------
Expense Acct 364 + Acct 365 + Acct 369 (Net Dist Inv/Gross Dist Inv)
Depreciation = Depreciation Rate Acct 364 (Gross Dist Inv/Net Dist Inv)
Expense
Administrative = Acct 920 Through Acct 935 / (Acct 101 - Acct 108) Expense
Space Occupied by CATV = 1.0 Feet
Usable Space = 13.5 Feet
NOTES: Cost data used in above formula will be current data for previous
calendar year.
* 15% Reduction for Non-Cable Related Appurtenances.
** Expressed as a percentage of Net Plant Investment.
*** Includes Accumulated Deferred Tax Reserve at zero cost.
<PAGE> 1
EXHIBIT 10.25
LEASE
THIS AGREEMENT (hereinafter "Lease") made and entered this 5th day of
December, 1997, by and between THE HILTON COMPANY, a Florida partnership,
(hereinafter "Lessor") with its principal place of business at P.O. Call Box
2462, Panama City, Florida 32402, and KNOLOGY OF PANAMA CITY, INC., a Florida
corporation, (hereinafter "Lessee") with its principal place of business at
13200 Panama City Beach Parkway, Panama City Beach, Florida 32407;
WITNESSETH THAT:
WHEREAS, THE HILTON COMPANY is the owner of the following described real
estate in Bay County, Florida, to-wit:
13200 Panama City Beach Parkway
Panama City Beach, FL 32407
See Exhibit A for legal description of property.
Together with the buildings and all other improvements located on said
real estate, used in connection with a cable television company, and
WHEREAS, THE HILTON COMPANY desires to lease the land, buildings, and all
other improvements on the terms and conditions set forth below:
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions herein expressed, the parties agree as follows:
1. PROPERTY AND TERM
Section 1.1 - Leased Premises: Lessor hereby leases to the Lessee the
above-described real property in Bay County, Florida, together with the
buildings and all other improvements located on said property and heretofore
used in connection with a cable television company, all of which is sometimes
Lease - Page 1
<PAGE> 2
hereinafter referred to as the "Leased Premises". Lessee has inspected the
property and finds it suitable for its intended purpose.
Section 1.2 - Term: The term of this Lease shall begin December 5, 1997
(the "Commencement Date") and extend through November 30, 2012, or until
otherwise terminated in accordance upon this Lease.
2. CONDITION OF PROPERTY LEASED, REPAIRS DURING TERM
Section 2.1 - Lessee's Obligation: Lessee finds that said property is in
good and substantial repair and agrees to maintain all of the Leased Property
in good and substantial repair, and in a clean, neat and orderly condition,
ordinary wear and tear excepted. Lessee shall at its own expense make all
necessary repairs and/or replacements necessary to maintain the property in the
same or better condition as presently exists and all such repairs and/or
replacements shall be in quality and class at least equal to the original work.
No earlier than thirty (30) days after giving Lessee written notice of Lessee's
default in making such repairs or replacements, or in maintaining the Leased
Premises in a clean, neat, and orderly condition, Lessor may, but shall not be
required to, make such repairs and replacements, and do whatever is reasonably
necessary to restore the Leased Premises to a clean, neat and orderly condition
on Lessee's account, and the expense thereof shall constitute and be
collectible as additional rent. The last mentioned remedy shall be in addition
to all other remedies available to the Lessor in the event of breach of the
Lessee of any covenant or condition of this Lease.
The necessity or inadequacy of repairs to the Lease Premises shall be
measured by the standard which is appropriate for improvements of similar age
construction and class. Lessor shall not be required to furnish any services
or facilities, or to make any repairs of alterations in or to the Leased
Premises. Lessee hereby assumes full and sole responsibility for the
condition, operation, repair,
Lease - Page 2
<PAGE> 3
replacement, and management of the Leased Premises.
Section 2.2 - Interest of Lessor Not Subject to Liens for Improvements
Made by Lessee: The Leased Premises and interest of the Lessor or any
mortgagee in the Leased Premises shall not be subject to liens for improvements
made by Lessee, and neither Lessor nor mortgagee, if any, nor Lessor's interest
in the subject property shall in any way be liable for any such repairs made by
Lessee. In the event any claim of lien is filed on the Leased Premises for
repairs or other work done at the instance of Lessee, the latter will cause the
same to be removed within fifteen (15) days after the said lien shall have been
filed.
Section 2.3 - Responsibility for Complying With Laws: Lessee assumes all
duties, responsibilities, and liabilities for maintaining the Leased Premises
in such a way as to comply with all requirements as hereinafter defined, which
become applicable to the Leased Premises on or after the Commencement Date.
Lessor represents and warrants that the Leased Premises shall comply with all
requirements applicable to the Leased Premises as of the Commencement Date.
Notwithstanding Lessee's obligations under Section 8.1 hereof, Lessor shall,
throughout the term of this Lease, at its own cost and expense, promptly take
such actions as are required to correct any non-compliance existing in the
Leased Premises prior to the Commencement Date upon receiving notice or
becoming aware of such non-compliance .
3. UTILITIES
Section 3.1: From and after the date Lessee assumes possession of the
Leased Premises, but no earlier than the Commencement Date, irrespective of
whether Lessee shall be open for business in the Leased Premises, Lessee agrees
to pay for all utility services rendered or furnished to the Leased Premises
after such date, including, without limitation, heat, water, gas, electricity,
sewer rental,
Lease - Page 3
<PAGE> 4
sewage treatment facilities, together with all taxes levied or other charges on
such utilities and governmental charges based on utility consumption.
4. USE OF DEMISED PREMISES
Section 4.1 - Use: Lessee agrees that the Leased Premises may be used for
any lawful purpose which does not interfere with the Leased Premises being
ultimately used for its intended purpose as a cable television headend,
warehouse, office and related facilities or any ancillary or related purpose
thereto. It is understood and agreed that it shall be the Lessee's sole
responsibility and expense to maintain all necessary licenses and permits in
connection with the operation of any business of the Lessee.
Lessee agrees to use, maintain and occupy the Leased Premises in a
careful, safe and proper manner as required by the terms hereof and not to
commit waste therein.
Lessee further agrees:
(a) Not to permit the Leased Premises to be used in any way which
will injure the reputation of same, or be a nuisance, annoyance, inconvenience,
or damage to adjoining property holders;
(b) To cause all trash, refuse and waste materials to be regularly
removed from the Leased Premises;
(c) Not to use, occupy, suffer or permit any use of the Leased
Premises which would violate any law, ordinance or regulation, constitute an
extra hazardous use, or violate, suspend or void any policy or policies of
insurance of Lessee.
(d) To conform to any fire protection recommendations made.
5. RENTAL
Lease - Page 4
<PAGE> 5
Section 5.1 - Fixed Monthly Rent: Lessee shall pay to Lessor the rental of
Five Thousand One Hundred Forty-Six Dollars ($5,146.00) per month for the
Leased Premises ("Base Rent") plus sales tax and other taxes and payments as
set out in this agreement for the first five (5) years of the term. During the
second five (5) years of the term, the Base Rent shall be increased by the
percentage of increase (if any) in the U.S. Department of Labor Consumer Price
Index during the previous five (5) years of the term. Likewise, the Base Rent
for the third five (5) years of the term shall be increased by the percentage
of increase (if any) in the U.S. Department of Labor Consumer Price Index
during the previous five (5) years of the term. This Bureau of Labor
Statistics Index was 161.2 for September 1997 for all urban consumers.
Each month's Base Rent plus any additional rent is payable in advance and
without demand on or before the tenth (10th) of the month during which it is
due. Lessee covenants and agrees to pay Base Rent and to perform each and
every other covenant and condition under this lease. All rental payments will
be made to THE HILTON COMPANY, at P.O. Call Box 2462, Panama City, Florida
32402, or such other person or places as Lessor may from time to time designate
in writing. All of said payments shall be made without any set off or
deduction whatsoever, and shall be made without further notice or demand and
without abatement, deduction or set off. In addition to the Base Rent as
herein provided, all taxes (excise, sales, use, etc.) levied or assessed upon
the Base Rent of the Leased Premises shall be paid by Lessee, if not billed
directly to Lessee in the month that they become due, simultaneously with the
payment of each month's Base Rent. All occupational, special, license fees,
franchise fees, or the like will also be paid by Lessee, as well as all real
and/or personal property taxes assessed upon the Leased Premises. Real
property taxes are to be pro rated from January 1, 1998, with Lessor paying all
taxes accruing prior thereto and Lessee paying all taxes accruing on or
subsequent
Lease - Page 5
<PAGE> 6
to that date.
Section 5.2 - All Obligations of Lessee Considered Additional Rent: All
taxes, charges, costs, and expenses which Lessee is required to pay hereunder,
together with all interest and penalties that may accrue thereon in the event
of Lessee's failure to pay such amounts, and all damages, costs, and expenses
which the Lessor may incur by reason of any default of the Lessee or failure on
the Lessee's part to comply with the terms of this Lease, shall be deemed to be
("Additional Rent") and, in the event of non-payment by the Lessee, the Lessor
shall have the rights and remedies with respect thereto as the Lessor has for
the non-payment of Base Rent.
6. ADDITIONS, ALTERATIONS, AND PROPERTY ON THE PREMISES
Section 6.1 - Property on the Leased Premises: The buildings, fixtures and
all repairs, additions and replacements thereof shall be and remain the
property of the Lessor throughout and subsequent to the term of this Lease.
However, the Lessee shall have the right to maintain on the premises its
existing tower, antennas, equipment, furniture, furnishings, other personal
property, replacements, and additions thereto, and remove the same from the
property at the expiration of the term, provided that:
(a) All rents are paid in full and Lessee is not otherwise in
Default; and
(b) All damage to the Leased Premises or to the adjoining property
is immediately repaired. If Lessee fails to immediately commence such removal
and restoration and diligently prosecute the same, Lessor may, at its option,
deem said property abandoned and the same shall become the property of Lessor
without any payment or off set therefor.
Lessee agrees that all property of every kind or description which may at
any time be in or on the Leased Premises, shall be at Lessee's sole risk, or at
the risk of those claiming under Lessee; and Lessor shall not be liable for any
damage to said property or loss suffered by Lessee's business resulting
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<PAGE> 7
from any cause whatsoever.
TAXES
Section 7.1 - Lessee's Obligation: Lessee shall pay all taxes of every
kind and description including property taxes, license fees, occupational
taxes, excise taxes, and all other governmental impositions and charges of
every kind and nature whatsoever which may, during the term of this Lease, be
charged, levied, laid, assessed, imposed, or otherwise become due and payable
as a result of the operation of any business on said Leased Premises or as a
result of the payment of rent pursuant hereto or as a result of such taxes
being assessed against the real property.
Section 7.2: Lessee shall have the right to contest any such tax by legal
proceedings or in any other manner they may deem suitable. However,
notwithstanding the foregoing, Lessee shall promptly pay all such taxes if at
any time the Leased Premises or any part thereof shall then be immediately
subject to forfeiture, or if Lessor shall be subject to any criminal liability,
arising out of a non-payment thereof.
Section 7.3 - Payment of Taxes by Lessee Considered Additional Rent: The
payment of all taxes by Lessee required hereby shall be considered Additional
Rent.
8. REQUIREMENTS OF PUBLIC AUTHORITY
Section 8.1: During the term of this Lease, Lessee shall, at the Lessee's
own cost and expense, promptly observe and comply with all present and future
laws, ordinances, requirements, orders, directives, rules and regulations of
the Federal, State, county and city governments, and of all other governmental
authorities (collectively "Requirements") affecting the Leased Premises or
appurtenances thereto or any part thereof, and Lessee shall pay all costs,
expenses, liabilities, losses, damages, fines, penalties, claims and demands,
including reasonable counsel fees that may in any manner arise out of
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<PAGE> 8
or be imposed because of the failure of Lessee to comply with the covenants of
this Article 8.
9. INDEMNITY
Section 9.1: Lessee shall indemnify and save harmless Lessor from and
against any and all liability, damage, penalty or judgment arising from injury
to person or property sustained by anyone in and about the Leased Premises
resulting from any act or acts of omission or omissions of Lessee or Lessee's
officers, agents, servants, employees, contractors, or sublessees and not due
in whole or in part to any act or omission of Landlord. Lessee shall, at its
own cost and expense, defend any and all suits or action (just or unjust) which
may be brought against Lessor or in which Lessor may be impleaded with others
upon any such above mentioned matter, claim or claims except as may result from
the acts set forth in 9.2 below.
Section 9.2: - Lessor shall not be responsible or liable for any damage or
injury to any property, fixtures, buildings or other improvements or to any
person or persons, at any time on the Leased Premises, including any damage or
injury to Lessee or to any of Lessee's officers, agents, servants, employees,
contractors, customers, or other invitees.
10. INSURANCE
Section 10.1 - Liability Insurance: Lessee shall provide at its expense
and keep in force during the term of this Lease, general liability insurance in
a good and solvent company or companies, licensed to do business in the State
of Florida, selected by Lessee, and reasonably satisfactory to Lessor, in the
amount of at least Five Million Dollars ($5,000,000.00) with respect to injury
or death of any one person, and Five Million Dollars ($5,000,000.00) with
respect to injury or death to more than one person in any one accident or
occurrence, and Five Million Dollars ($5,000,000.00) with respect to damage to
property. Such policy or policies shall include the Lessor and any mortgagee
of Lessor as
Lease - Page 8
<PAGE> 9
assureds.
Section 10.2 - Property Insurance: During the term of this Lease, the
Lessee shall keep all buildings and improvements erected upon the Leased
Premises at any time insured for the benefit of Lessor, any mortgagee of the
property, and Lessee as their respective interests may appear, against loss or
damage by fire, or other casualty, in the broadest form of extended coverage
insurance available in an amount adequate at all times during the term of the
Lease to replace the said buildings and other improvements, or the maximum
insurable value of said buildings and other improvements, whichever is less.
Lessee shall secure appropriate acknowledgment from such insurer that such
coverage has been written in an amount necessary to avoid the effect of any
co-insurance provision of the applicable policies.
Section 10.3 - Evidence of Insurance: Prior to the beginning of the term,
and thereafter at least fifteen ( 15) days prior to the expiration of any such
policy, a certificate evidencing that all policies required hereby to be
furnished by the Lessee have been furnished, together with evidence of payment
therefore shall be delivered to the Lessor. All insurance policies required
hereby shall contain an endorsement providing that said insurance may not be
canceled or amended with respect to Lessor or any mortgagee of said property,
except upon ten (10) days notice to Lessor and any mortgagee of Lessor, by the
insurance company; and that Lessee shall be solely responsible for payment of
premiums for such insurance; and expressly waives any right of subrogation by
the insurance company against Lessor, provided that any additional charge for
such waiver of subrogation shall be paid by Lessor upon Lessee's request. In
the event Lessee fails to furnish such insurance, Lessor may, after notice and
cure periods, obtain same and the premiums shall be deemed Additional Rent to
be paid by Lessee upon Lessor's demand.
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<PAGE> 10
Section 10.4 - Disposition of Proceeds of Insurance: The proceeds of any
property insurance relating to said buildings which is required hereby shall at
the option of the Lessor, be either escrowed with a bank in Bay County for
payment to the respective parties and mortgagees as their interest may appear,
or be used to repair or restore the Leased Premises. In the event Lessor does
not repair or rebuild the damaged portions of the Leased Premises with
reasonable promptness after payment of said fire or other casualty loss
proceeds, but in any event no later than thirty (30) days thereafter and the
damage from such casualty renders all or part of the Leased Premises no longer
suitable for the use noted in 4.1 above, then, at the election of either party
by written notice delivered within then (10) days after the expiration of such
thirty (30) day period, this Lease will terminate, effective as of the date of
the casualty, and be of no further force and effect. In the event such repairs
are made within thirty (30) days after said casualty, or if not made and
neither party terminates this Lease, the Lease shall continue in full force and
effect and Lessor shall use good faith diligent efforts to restore the Leased
Premises. However, during such repairs, rent shall abate to the extent that
such building is not reasonably usable for said purpose.
11. QUIET ENJOYMENT
Section 11.1: Lessee, upon paying the Base Rent and Additional Rent and
all other sums and charges to be paid by it as herein provided, and observing
and keeping all covenants, warranties, agreements and conditions of this Lease
on its part to be kept, shall quietly have and enjoy the Leased Premises during
the term of this Lease.
12. DEFAULTS
Section 12.1 - Events of Default: It shall be deemed an "Event of
Default" in the event any one or more of the following events shall have
occurred and shall not have been remedied as herein
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<PAGE> 11
provided:
(a) Lessee's failure to pay any installment of basic rent or
additional rent when the same shall become due and payable and the continuance
of such failure for a period of more than ten (10) days after receipt of
written notice of such failure to Lessee; or
(b) Lessee's failure to perform any of the other covenants,
conditions and agreements herein contained on Lessee's part to be kept or
performed and the continuance of such failure without curing of same for a
period of more than thirty (30) days after written notice thereof to Lessee,
provided, however, that if the cause for giving such written notice involved
matters reasonably requiring a longer period of time than the period of such
notice within which to comply therewith, Lessee shall be deemed to have
complied with such notice, so long as they have commenced to comply within the
period set forth therein, and are diligently prosecuting compliance, and have
taken proper steps or proceedings under the circumstances to prevent the
seizure; destruction, alteration or other interference with the premises by
reason of non-compliance with the requirements of any law, ordinance, rules,
regulations, or directions of any governmental authority as the case may be; or
(c) If at any time after the Commencement Date there shall be
filed by or against Lessee in any court pursuant to any statute of the United
States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Lessee's property, or if Lessee makes an assignment by operation of
law, or if Lessee makes application to Lessee's creditors to settle or compound
or extend the time for payment of Lessee's obligations, or if any execution or
attachment shall be levied upon any of Lessee's property, or the Leased
Premises are taken or occupied or attempted to be taken or occupied by someone
other than Lessee.
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<PAGE> 12
Section 12.2 - Remedies in Event of Default: Upon the occurrence of an
event of Default by the Lessee as defined in 12.1 (a) and (b), and the failure
of the Lessee to cure within the time allowed therein, Lessor shall have the
option to:
(a) Terminate this Lease, resume possession of the property for
their own account, and recover immediately from Lessee jointly and severally,
the difference between the Base Rent specified in the Lease and the fair rental
value of the property for the remainder of the term, reduced to present worth
using a discount interest rate equal to the prime rate then being charged by
AmSouth Bank.
(b) Resume possession and release or rent the property for the
remainder of the term for the account of the Lessee and recover from the
Lessee, at the end of the term or at the time each payment of rent comes due
under this Lease, as the Lessor may choose, the difference between the rent
specified in the Lease and the rent received on the re-leasing or renting.
(c) Advance any money, make any repairs, or cause to be done any
other thing which Lessee has failed to do (other than the payment of Base Rent)
and recover all monies expended in so doing from the Lessee, together with
interest at a rate of ten percent (10%) per annum thereon.
(d) Pursue any other remedy elsewhere specified in this Lease.
(e) Pursue any remedy available to Lessor at law or equity
according to the laws of the State of Florida.
(f) Pursue any combination of the above listed remedies.
Section 12.3: Upon the occurrence of an Event of Default, as defined by
12.1 (c), Lessor shall have all of the remedies available to the Lessor for
default, as defined by 12.1 (a) and (b), and in addition the parties agree that
this Lease shall automatically terminate, and neither Lessee nor any persons
claiming through or under Lessee or by virtue of any Statute or of an order of
any court shall
Lease - Page 12
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be entitled to possession of the Leased Premises.
Section 12.4 - Waivers: Failure of Lessor or Lessee to complain of any
act or omission on the part of the other party no matter how long the same may
continue shall not be deemed to be a waiver by said party of any of its rights
hereunder. No waiver by Lessor or Lessee at any time, express or implied, of
any breach of any provision of this Lease shall be deemed a waiver of a breach
of any other provision of this Lease or a consent to any subsequent breach of
the same or any other provision. No acceptance by Lessor of any partial
payment shall constitute an accord or satisfaction but shall only be deemed a
part payment on account.
Section 12.5 - Lessor's Expenses: If there is an Event of Default
hereunder, and if Lessor shall deem it necessary to engage attorneys to enforce
Lessor's rights hereunder, the determination of such necessity to be in the
reasonable discretion of Lessor, Lessee shall reimburse Lessor for the
reasonable expenses incurred hereby, including, but not limited to, court costs
and reasonable attorney's fees. If Lessee's rights hereunder are not
terminated, the amount of such expenses shall be deemed to be additional rent
hereunder and shall forthwith be due and payable to Lessor by Lessee.
Notwithstanding Lessor's remedies described in Section 12.2 and 12.3 above,
Lessor shall use its best efforts to mitigate its damages upon the occurrence
of an Event of Default.
13. MEDIATION
Section 13.1: All claims, disputes, and other matters in question arising
out of or relating to the Lessee's obligation to repair and maintain the Leased
premises, and the extent of any damages owed by the Lessee as a result of
failing to perform such repairs and maintenance (including any set offs against
the security deposit) shall be mediated by the parties prior to the institution
of any judicial proceeding. If one party to this contract requests mediation,
the other party must attend mediation
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within 30 days of the request being made.
14. MISCELLANEOUS OTHER PROVISIONS
Section 14.1 - Exoneration of Lessor from Personal Liability: If Lessor,
or any successor in interest, shall be an individual, receiver, joint venture,
tenancy in common, firm or partnership, general or limited, there shall be no
personal liability on such individual or on the members of such joint venture,
tenancy in common, firm or partnership in respect to any of the agreements of
this Lease. Lessee shall look solely to the equity of Lessor in the premises
and the rents, issues and profits derived therefrom for the satisfaction of the
remedies of Lessee in the event of a breach by Lessor. Lessee shall in the
event of the sale or assignment of Lessor's interest in the premises, or in the
event of any proceedings brought for the foreclosure of or in the event of the
exercise of the power of sale under any mortgage covering the Leased Premises,
attorn to recognize such purchaser or mortgagee as Lessor under this Lease, and
in any such events, Lessor herein shall not thereafter be liable on this Lease.
Section 14.2 - Assignment and Subletting: Lessee agrees not to assign
this Lease or to sublet the whole or any part of the premises, or to permit any
other persons to occupy same without prior written consent of Lessor, which
consent shall not be unreasonably withheld, continued, or delayed; provided,
however, Lessor's consent shall not be required for any transfer of Lessee's
interest to any affiliate or subsidiary of Lessee or in connection with any
merger. Any subletting, even with Lessor's consent, shall not relieve Lessee
from liability for payment of rent or from the obligation to keep and be bound
by the agreements of this Lease. The acceptance of rent from any other persons
shall not be deemed to be a waiver of any of the provisions of this Lease or to
be consent to the assignment for the benefit of creditors or by operation of
law and shall not be effective to transfer any rights to any assignee without
the prior written consent of Lessor. Lessee may permit a portion of the Leased
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<PAGE> 15
Premises to be occupied by any agent or employee of third party contractors who
are performing services under contract for Lessee, and such occupancy may be
accomplished without notice to or approval from Lessor.
Section 14.3 - Force Majeure: In the event that Lessor or Lessee shall be
delayed, hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, the act, failure to act, or default of the other party,
war or other reason beyond their control, then performance of such act shall be
excused for the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay.
Section 14.4 - Partial Condemnation or Taking: In the event of the
condemnation or other taking of a portion of the Leased Premises not to exceed
fifty percent (50%) of the rentable square feet in the of space in the Leased
Premises, the Lease shall not be terminated, but Lessor shall, at the Lessor's
sole cost and expense, promptly following receipt of the awards or proceeds
received from the applicable governmental authority in connection with such
condemnation or other taking, commence and diligently pursue to completion such
restoration work as is required to enable the balance of the Leased Premises
not taken to be occupied by Lessee for the use permitted by Section 4.1. As of
the date of the taking, the Base Rent shall be adjusted downward
proportionately to the loss of rentable square feet of area to the taking.
Notwithstanding the foregoing, in the event that such taking results in the
loss of more than fifty percent (50%) of the rentable square feet in the Leased
Premises, either Lessor or Lessee may by written notice give no later than ten
(10) days after the date of the taking, elect to terminate the Lease effective
on the date of the condemnation or taking. In the
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<PAGE> 16
event of a partial taking that does not result in termination of the Lease, if
such taking of a portion of the Leased Premises results in Lessee's
determination that an additional portion of the Leased Premises is thereby
rendered unusable to Lessee, such determination being made in the exercise of
commercially reasonable judgment, and Lessee actually ceases to use such
additional portion of the Leased Premises during the time that Lessor's
restoration work is ongoing, then Lessee shall be entitled to an equitable
abatement of Base Rent and Additional Rent with respect to such unusable
portion of the Leased Premises until the date upon which Lessor's restoration
work or if Lessor in fact has not substantially completed the restoration work
within two hundred seventy (270) days after the effective date of the taking,
then Lessee may elect to terminate the Lease by providing written notice of
such election to Lessor within ten ( 10) days following the date upon which
Lessor informs Lessee of such matters.
Section 14.5 - Notices: Every notice, approval, consent or other
communication authorized or required by this Lease shall not be effective
unless same shall be in writing and sent postage prepaid by United States
registered or certified mail, return receipt requested, or by hand delivery or
any overnight mail service directed to the other party at its address listed
below, or such other address as either party may designate by notice given from
time to time in accordance with this paragraph 14.5. Notices shall only be
effective upon receipt. In lieu thereof, notice may be made by authorized
process server in the same manna as required by legal service of process, and
notice shall be effective upon service. The rent payable by Lessee hereunder
shall be paid to Lessor at the same place where a notice to Lessor is herein
required to be directed.
Lessor: THE HILTON COMPANY, P.O. Call Box 2462, Panama City, Florida 32402
Lessee: KNOLOGY OF PANAMA CITY, INC., 13200 Panama City Beach
Parkway, Panama City Beach, Florida 32407
Lease - Page 16
<PAGE> 17
Section 14.6 - Certificates: Either party shall, without charge, at any
time and from time to time hereafter, within fifteen (15) days after written
request of the other, certify by written instrument duly executed and
acknowledged to any mortgagee or purchaser, or proposed mortgagee or proposed
purchaser, or any other person, firm or corporation specified in such request:
(a) as to whether this Lease has been supplemented or amended, and if so, the
substance and manna of such supplement or amendment; (b) as to the validity and
force and effect of this Lease, in accordance with its tenor as then
constituted; (c) as to the existence of any default thereunder; (d) as to the
existence of any off sets, counterclaims or defenses thereto on the part of
such other party; and (e) as to the commencement and expiration dates of the
term of this Lease. Any such certificate may be relied upon by the party
requesting it and the contents of such certificate shall be binding on the
party executing same.
Section 14.7 - Governing Law: This Lease and the performance thereof
shall be governed, interpreted, construed and regulated by the laws of the
State of Florida, and the parties hereby submit to the jurisdiction of the
State courts of Bay County, Florida, for any and all matters relating to this
Lease, and specifically waive the jurisdiction of the federal courts and
specifically waive any right to jury trial.
Section 14.8 - Partial Invalidity: If any term, covenant, condition or
provision of this Lease or the application thereof to any person or
circumstance shall, at any time or 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 it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant,
condition and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
Section 14.9 - Recordation Not Permitted: In no event shall this Lease or
any memorandum
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<PAGE> 18
hereof be recorded in the official or public records where the property is
located, and any such recordation or attempted recordation shall constitute a
default under this Lease by the party responsible for such recordation or
attempted recordation, if the other party desires to constitute such as an
event of default.
Section 14.10 - Interpretation: Wherever herein the singular number is
used, the same shall include the plural, and the masculine gender shall include
the feminine and neuter genders, and vice versa, as the content shall require.
The sections and headings used herein are for reference and convenience only,
and shall not enter into the interpretation hereof. This Lease may be executed
in several counterparts, each of which shall be an original, but all of which
shall constitute one and the same instrument. The terms "Lessor" and "Lessee"
whenever used herein shall mean not only the parties who execute this Lease,
but upon any sale or assignment not prohibited by the terms hereof (or which
may occur with the consent of the party entitled to enforce such prohibition),
then the respective successors in interest and/or such assigns shall during the
term of ownership of their respective estates herein, be deemed to be Lessor or
Lessee as the case may be.
Section 14.11 - Lessor's Access to Premises: Lessee agrees to permit
Lessor or Lessor's agents to inspect or examine the Leased Premises at any
reasonable time acceptable to Lessee on not less than three (3) business days
notice, and to permit Lessor to make such repairs to the building, of which the
Leased Premises are a part, that Lessor may deem desirable or necessary for its
preservation and which Lessee has not covenanted herein to do or has failed so
to do after the notice and cure period set forth in Section 2.1.
Section 14.12 - Surrender of Premises and Holding Over: Lessee agrees to
deliver up and surrender to Lessor the possession of the Leased Premises upon
the expiration of this Lease, or its
Lease - Page 18
<PAGE> 19
earlier termination as herein provided, in as good condition and repair as the
same shall be at the commencement of the term. If Lessee shall remain in
possession of all or any part of the premises after the expiration of the term
or fail to completely remove its property, then Lessee shall be deemed a tenant
of the premises from month to month at the same rental and subject to all of
the terms and provisions hereof, except only as to the term.
Section 14.13 - Relationship of Parties: Nothing in this Lease shall be
deemed or construed so as to create the relationship of principal and agent,
partnership, joint venture or of any association whatsoever between the
parties, it being agreed that neither the computation of rent nor any other
provisions in this Lease, nor any acts of the parties shall be deemed to create
any relationship between the parties other than the relationship of landlord
and tenant.
The words "Lessor" and "Lessee" shall be deemed and taken to mean each
party named as Lessor and/or Lessee set forth at the beginning of this Lease,
and if there shall be more than one, any Notice required or permitted by this
Lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The use of the neuter singular
pronoun to refer to either party shall be deemed a proper reference even though
such party may be an individual, a partnership, a corporation, or a group of
two or more of any of the same. In order to make the provisions of this Lease
apply in the plural tense where there is more than one as aforesaid, and apply
to either corporations, partnerships, or individuals, males or females, the
necessary grammatical changes required shall in all instances be assumed as
though in each case fully expressed.
Section 14.14A - Entire Agreement and Provisions Binding: This Lease and
any attached and incorporated item, set forth all the covenants, promises,
agreements, conditions and understandings between the parties concerning this
Lease and the Leased Premises, and there are no covenants,
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<PAGE> 20
promises, agreements, conditions or understandings, either oral or written,
between them other than are herein set forth. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon the parties
unless reduced to writing and signed by them.
Section 14.14B - Operating Lease: The parties intend that this Lease
shall be treated as an operating lease, and agree that the parties will make
all efforts to restructure this Lease as an operating lease in the event this
lease is deemed to be a capital lease. The parties further agree that the
Lessor shall be made whole in the event of such restructuring.
Except as herein otherwise expressly provided, the terms and provisions
hereof shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns, respectively, of the parties. Each
agreement, term and provision of this Lease to be performed by the parties
shall be construed to be both a covenant and a condition. Any reference in
this Lease to successors and assigns of Lessee is not intended to constitute a
consent to assignment by Lessee, but has reference only to those instances in
which Lessor may have given written consent to a particular assignment.
Signed and Sealed in
the Presence of:
/s/ Allan G. Bense THE HILTON COMPANY
- ------------------------------------
Allan G. Bense
- ------------------------------------
(Witness Sign & Print Name) By: /s/ L. Charles Hilton, Jr.
---------------------------------
/s/ J. Kirk Hancock Its: General Partner
- ------------------------------------ --------------------------------
J. Kirk Hancock
- ------------------------------------
(Witness Sign &: Print Name)
/s/ Allan G. Bense KNOLOGY OF PANAMA CITY, INC.
- ------------------------------------
Allan G. Bense
- ------------------------------------
(Witness Sign & Print Name) By: /s/ Felix L. Boccucci, Jr.
---------------------------------
/s/ J. Kirk Hancock Its: Asst. Secretary
- ------------------------------------ --------------------------------
J. Kirk Hancock
- ------------------------------------
(Witness Sign & Print Name)
Lease - Page 20
<PAGE> 21
STATE OF VIRGINIA.
COUNTY OF FAIRFAX
The foregoing instrument was acknowledged before me this 5th day of
December, 1997, by L. Charles Hilton, Jr. as General Partner of THE HILTON
COMPANY who is personally known to me or who has produced his driver's license
as identification and who did (did not) take an oath.
SEAL
/s/ Lisa E. Mossor
------------------------------------------
NOTARY PUBLIC
Printed: Lisa E. Mossor
My Commission Expires December 31, 2000
STATE OF VIRGINIA
COUNTY OF FAIRFAX
The foregoing instrument was acknowledged before me this 5th
day of December, 1997 by Felix L. Boccucci, Jr. as Asst. Secretary of KNOLOGY
OF PANAMA CITY, INC. who is personally known to me or who has produced his
driver's license as identification and who did (did not) take an oath.
SEAL
/s/ Lisa E. Mossor
------------------------------------------
NOTARY PUBLIC
Printed: Lisa E. Mossor
My Commission Expires December 31, 2000
Lease - Page 21
<PAGE> 22
EXHIBIT A
Commence at the Northeast corner of the West Half of the Southwest Quarter
of the Southwest Quarter of Section 22, Township 3 South, Range 16 West,
according to the Plat of Bay West Estates Unit One (Bay County Plat Book 10,
Page 50); thence go S 00 degrees 06'30" W along the East line of said West Half
of the Southwest Quarter of the Southwest Quarter for 761.65 feet to the
curved Northerly right of way line of state Road No. 30-A, said curve
being concave Northerly and having a radius of 3687.83 feet; thence go
Southeasterly along said curved right of way line for an arc distance of 390.00
feet (chord = 389.82 feet, chord bearing = S 63 degrees 38'58"E) to the POINT OF
BEGINNING; thence go N 24 degrees 59'44" E, 208.34 feet; thence go S 65 degrees
00'26"E, 58.00 feet to point of curvature of a curve being concave Northerly
and having a radius of 650.00 feet; thence go Southeasterly along said curve for
an arc distance of 167.09 feet (chord = 166.63 feet, chord bearing = S 72
degrees 22'18"E); thence go S 00 degrees 06'30" W, 227.64 feet to the curved
Northerly right of way line of aforesaid State Road No. 30-A; thence go
Northwesterly along said curved right of way line for an arc distance of 320.00
feet (chord = 319.90 feet, chord bearing = N 69 degrees 09'53" W) to the POINT
OF BEGINNING containing 1.3048 acres, more or less.
<PAGE> 1
EXHIBIT 10.26
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
03/17/97 5:18 PM
INTERSTATE TELEPHONE COMPANY
AND
CYBERNET HOLDING, INC.
AGREEMENT FOR THE PROVISION OF
BILLING AND COLLECTION SERVICES
This agreement made and entered into on April 2 , 1997, between
INTERSTATE TELEPHONE COMPANY ("Interstate") and CYBERNET HOLDING, INC.
("Cybernet"), sets forth the terms whereby Interstate will perform certain
billing and collection services for Cybernet. This agreement shall remain in
effect for a minimum of one year or thereafter until such time as cancelled by
either party, provided that said termination is not inconsistent with the terms
of any applicable tariff.
I. BILLING AND COLLECTION SERVICE DESCRIPTION
Interstate agrees to perform the services of recording and rating
messages processed through Interstate's switch which reflect Cybernet end user
traffic, providing this information to Cybernet through means of magnetic tape
or other mutually agreed upon medium, to process these messages into billable
formats, and prepare and render end user bills to Cybernet.
Total Cybernet charges to the end user will include any federal, state,
and local taxes to be calculated by Interstate and collected by Cybernet.
Cybernet will be responsible for reporting and payment of taxes to the proper
taxing authority in a timely manner.
Interstate will refer all customer inquiries and questions related to
Cybernet end users to Cybernet Customer Service at _________________. Cybernet
intends to perform inquiry services, treatment of accounts, message
investigation, and toll investigation for messages processed by Interstate.
Cybernet will issue to Interstate via agreed upon medium, credit memorandums
for any charges determined to be credited from a customer's account.
Procedures for disconnect for nonpayment are not contained in this
agreement, but can be found in the Capacity Lease Agreement in effect between
Interstate and Cybernet.
II. COMPENSATION
Compensation for services provided for in this Agreement shall be
established at the rates mutually agreed to by Interstate and Cybernet and
contained in Attachment "I".
<PAGE> 2
III. PERFORMANCE STANDARDS
All messages will appear on the customer's bill within sixty (60) days
of the date the call is generated, except in the case of third party billed
calls which will be billed within forty-five (45) days of receipt of such calls
in Interstate's billing center. Interstate will reimburse Cybernet for any
customer write-offs which directly result from any messages failing to meet the
standards stated above. Interstate assumes no responsibility for circumstances
described in Section XI, Force Majeure.
IV. MINIMUM ORDER AND REQUIREMENTS
Cybernet agrees to the following minimum payments as follows:
One-time Set Up and Hardware Fee : [_________]
---------
Minimum Monthly Payment [_______]
-------
V. STATEMENT PREPARATION
Interstate will report Cybernet messages as billed to end users on or
before sixty (60) days of the date of Cybernet's end user bill including such
messages to customers.
This statement will be prepared by Interstate by the 15th of month
following bill cycle with Cybernet remitting payment to Interstate by the 15th
of the following month. Cybernet, (i.e., terms are net 30 from date of
bill),will remit payment to:
Interstate Telephone Company
Attn:
P O Box 510, West Point, GA 31833
VI. PROPRIETARY INFORMATION
Interstate and Cybernet expressly agree that it will not disclose any
information which is designated "confidential" or "proprietary" by the party
providing it to the other without prior written consent except as what may be
required by law. Each party will use the same care to maintain confidentiality
of information necessary for the provision of the Billing and Collection
services provided for hereunder as it uses with respect to its own proprietary
and confidential information. Each party agrees to give prompt notice to the
other party of any demands to disclose or provide proprietary information
pursuant to subpoena or other lawful process prior to disclosing or providing
the same.
2
<PAGE> 3
VII. DATA RETENTION
All data associated with the performance of services hereunder shall be
retained, as applicable, for the retention time required by law for maintaining
federal, state and local tax information, the time required by law or regulation
in order to substantiate or reconstruct end user invoices, or the retention time
used by Interstate for its own billing information, whichever is longest.
VIII. SEVERABILITY
In the event that one or more of the provisions contained herein shall,
for any reason, be held to be unenforceable in any respect, such
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if the unenforceable provision had not been
contained herein.
IX. RELATION OF PARTIES
The parties declare and agree that each party hereto is engaged in a
separate and distinct business which is independent from that of the other party
and that each party shall perform its obligation hereunder as an independent
contractor and not as an agent, employee, or servant of the other party.
X. GOVERNING LAW
This Agreement shall be deemed to be a contract made under the laws of
the State of Alabama.
XI. FORCE MAJEURE
Neither party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its control and
without its fault or negligence, including but not limited to acts of God, acts
of civil or military authority, government regulations, insurrections, fires,
explosions, earthquakes, floods, strikes, power blackouts, unusually severe
weather conditions, inability to procure products or services of other persons
or transportation facilities. This provision will not apply where it contradicts
a specific indemnification or hold harmless provision of this Agreement.
XII. LIMITATION OF LIABILITY
Neither Cybernet nor Interstate shall be liable to the other for any
special, incidental or consequential damages of any nature or for any reason,
even if advised of the possibility of such damages, nor, except to the extent
explicitly provided for herein, for any claims against the other by a third
party.
3
<PAGE> 4
XIII. INDEMNIFICATION
To the extent not prohibited by law and except as otherwise provided
herein, each party shall indemnify and hold harmless the other party from and
against any loss, costs, claim, injury or liability, including reasonable
attorney's fees, brought by a person not a party hereto or an affiliate under
this Agreement which relates to or arises out of the breach of any of the
provisions of this Agreement or the negligent or intentional acts or omissions
of the indemnifying party of its employees, agents, or contractors in connection
with the actions taken under this Agreement.
XIV. WAIVERS
No waiver of any provisions of this Agreement and no consent to any
default under this Agreement shall be effective unless the same shall be in
writing and signed by or on behalf of the party against whom such waiver or
consent is claimed. No course of dealing or failure of any party to strictly
enforce any term, right or condition of this Agreement shall be construed as a
waiver of such term, right or condition.
XV. HEADINGS
The headings of sections and paragraphs in this Agreement are for
convenience only and shall not be construed to define or limit any of the terms
herein or affect the meaning or interpretation of this Agreement.
XVI. NOTICES
Communications concerning this Agreement and the operations of the
parties as described in this Agreement will be between the following
representatives of the parties:
INTERSTATE TELEPHONE COMPANY
ATTN:
P O Box 510, West Point, GA 31833 Telephone:
Fax:
Contact:
CYBERNET
ATTN:
P O Box 510, West Point, GA 31833 Telephone:
Fax:
Contact:
4
<PAGE> 5
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed for them and on their behalf by their authorized representatives, as of
the day first written above.
WITNESS: INTERSTATE TELEPHONE COMPANY
/s/ Nancy Steele BY:/s/ Robert Nyswaner
---------------------------- -----------------------
Title: CFO
--------------------
WITNESS: CYBERNET
/s/ Dixie Noles BY:/s/ William E. Morrow
---------------------------- -----------------------
Title: CEO & President
--------------------
5
<PAGE> 6
ATTACHMENT "A"
TO
INTERSTATE AND CYBERNET
AGREEMENT FOR THE PROVISION OF
BILLING AND COLLECTION SERVICES
A-1. Message Recording Services - Includes rating, recording, data
transmission, and preparing messages in a billable format
RATE: [_________________]
A-2. Message Billing Service - Preparing end user bill
RATE: [______________________]
A-3. Carrier Access Bill
RATE: [_____________________________]
BY: /s/ Robert Nyswaner BY: /s/ William E. Morrow
----------------------------- --------------------------
Interstate Telephone Company CyberNet Holding, Inc.
TITLE: CFO TITLE: CEO & President
---------------------------- -------------------------
DATE: 4/2/97 DATE: 4/2/97
----------------------------- --------------------------
6
<PAGE> 1
EXHIBIT 10.27
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
April 14, 1997
AGREEMENT
This Operator and Related Services Agreement (the "Agreement"), is
entered into as of April 16, 1997, by and between Eastern Telecom, Inc., d/b/a
InterQuest, a Georgia Corporation ("InterQuest"), and Cybernet, a Georgia
Corporation
WHEREAS, InterQuest provides live operator and related
telecommunication services (the "Services"); and
WHEREAS, Cybernet provides various telecommunication services directly
or indirectly to callers or other consumers of its services ("End users"), and
desires to utilize InterQuest's live operator services, and such other services
as may be offered by InterQuest; and
WHEREAS, InterQuest desires to provide such services to Cybernet.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, InterQuest shall provide to Cybernet and Cybernet shall purchase
from InterQuest, the Services, upon the terms and conditions set forth in this
Agreement.
1. Payments and Financing of Receivables All payments for the
purchase of services rendered will be paid within 15 days of invoice based upon
rates set forth in Exhibit A of this Agreement.
2. Term.
2(a) This Agreement shall commence on the date first
hereinabove set forth. The initial term of this Agreement shall be for two
years, unless terminated earlier in accordance with this Section 2 or Section 5
hereof (the "Initial Term"). In the event that neither party provide notice of
termination at least 30 days prior to the end of the Initial Term, the term, of
this Agreement shall automatically be extended for an additional year, and the
notice of termination provision and automatic extension provision of this
Section 2(a,) shall apply to each additional year in which this Agreement
remains in effect.
2(b) Upon written notice to the other party, either party
shall have the right to terminate immediately this Agreement upon the occurrence
of any of the following events: (1) the other party shall make an assignment for
the benefit of creditors, consent to the appointment of a trustee or receiver in
bankruptcy, or becomes insolvent, bankrupt or unable to pay its debts as they
become due; (2) a trustee or receiver in bankruptcy shall be appointed for any
of the properties of the other party and not he discharged or stayed within 30
days; or (3) bankruptcy, reorganization, liquidation or similar proceeding shall
be instituted against the other party, and are consented to by it or permitted
to remain unstayed or undismissed for 30 days.
3. Independent Contractors; Liability; and Indemnification
3(a) For purposes of this Agreement, the relationship of the
parties is that of independent contractors, and nothing contained in or implied
by the Agreement constitute or be construed to be or to create a partnership,
joint venture, or employment relationship between InterQuest and Cybernet.
InterQuest Confidential Page 1
<PAGE> 2
3(b) Neither party shall be liable under any contracts or
obligations of the other party, apart from this Agreement, or for any acts or
omissions of the other party or such other party's officers, directors,
employees and agents. In no even, except for a breach Section 4 of this
Agreement, shall either party be liable to the other or any third parties
(including any agents and or customers) for any special, indirect or
consequential damages even if such party has been advised of the possibility of
such damage.
3(c) Each party hereto hereby agrees to protect, indemnify,
and hold harmless the other party and its respective officers, directors,
trustees, agents, employees, and affiliates (the "Indemnified Party") from and
against all claims, actions, or causes of action, losses, damages, liabilities,
costs, taxes, and expenses, including, without limitation, reasonable attorney's
fees and disbursements (collectively, "Claims") to the extent that such claims
are incurred by or asserted against the Indemnified Party by reason of or in
connection with any (1) actual or alleged negligence, willful misconduct, error,
or omission of the indemnifying party, its officers, directors, trustees,
agents, or employees (the "Indemnifying Party") in connection with the execution
or performance of this Agreement, or (2) failure by the Indemnifying Party to
pay, perform, or comply with any of the provisions of this Agreement.
4. Proprietary Information
4(a) Each party acknowledges that it may in the course of the
performance of its obligations under this Agreement obtain knowledge of and
access to confidential and valuable business and proprietary information
relating to the other party and/or its customers. Such information shall be
labeled or identified as such in writing and shall be protected by the recipient
party from disclosure to others. Each party agrees at all tunes to use
reasonable efforts, at least as stringent as those employed by it with respect
to its own confidential information, (a) to keep confidential all such
information of the other party, (b) not to use such confidential information an
its own behalf, except in connection with the performance of its obligations
under this Agreement, or on behalf of any other person, firm, or entity, and (c)
not to disclose such confidential information to any third party (other than to
such patty's employees, officers, representative, and other agents with a "need
to know" such information in connection with the performance of its obligations
hereunder) without the other party's advance written authorization.
4(b) Cybernet and InterQuest's obligations and agreements
under this Section shall not apply to any confidential information supplied
that:
(1) was lawfully obtained by either party prior to the
disclosure by the other, or
(2) is or becomes generally available to the public other than
by breach of this Agreement, or
(3) otherwise becomes lawfully available on a non-confidential
basis from a third parry who is not under an obligation of
confidence to either party.
5. Force Majeure. Neither party shall be liable for delay in
performance hereunder or failure to perform hereunder if such failure or delay
is due to any cause or condition beyond such party's reasonable control. Such
causes or conditions beyond include but shall not be limited
InterQuest Confidential Page 2
<PAGE> 3
to, acts of God or of the public enemy, acts of any federal, state, or local
Government (or any agency thereof), fires, floods, epidemics, power failures
affecting both the main power and the uninterrupted power source (UPS),
quarantine restrictions, union instigated strikes, material labor disputes,
freight embargoes, unusually severe weather, failure by the applicable
telecommunications carriers, or other similar causes beyond such party's
control. In the event of a delay or failure to perform hereunder, the
non-performing party shall use its best efforts to resume performance under this
Agreement. If the performance of either party is terminated or delayed under
this provision for a period of 30 days, the other party shall have the right to
terminate this Agreement upon written notice to the non-performing party.
6. Notices. All notices, demands, requests, or other communications
which may be or are required to be given, served, or sent by either party to the
other party pursuant to this Agreement shall be in writing and shall be deemed
to have been duly given when sent by first-class, registered or certified mail,
return receipt requested, postage prepaid or transmitted by hand delivery,
express delivery, facsimile transmission, telegram or telex, addressed as
follows:
(a) If to InterQuest:
910 First Avenue
P.O. Box 510
West Point, Georgia 31833
Attention: Douglas A. Shumate
(b) If to Cybernet:
312 West 8th Street
West Point, Georgia 31833
Attention: Felix Boccucci
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
7. Binding Effect. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
8. Assignment. This Agreement and the rights and obligations of either
party hereunder may not be assigned by any party without the prior written
consent of the other party, except that either party may assign its rights
hereunder to any entity controlled by, controlling, or under common control with
such party or to any successor by merger or consolidation, or to any purchasers
of all or substantially all of the assets or business of such party.
9. Severability. If any part of any provision of this Agreement shall
be invalid or unenforceable under applicable law, said part shall be ineffective
to the extent of such invalidity
InterQuest Confidential Page 3
<PAGE> 4
or unenforceability only, without in any way affecting the remaining parts of
said provision or the remaining provisions of this Agreement.
10. Limitation on Benefit. It is the explicit intention of the parties
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 the covenants, undertakings and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective successors, legal
representative and assigns as permitted hereunder and any other persons or
entities specifically so designed herein.
11. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior oral or written agreements,
commitments or understands with respect to the matters provided for herein. No
amendment, modification or discharge of this Agreement shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, or discharge is sought.
12. Headings. Section 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 provision hereof.
13. Governing Law. This Agreement, the rights and obligations of the
parties hereto and any claims or disputes relating thereto shall be governed by
and construed in accordance with the laws of Georgia (excluding the choice of
law rules thereof).
InterQuest Confidential Page 4
<PAGE> 5
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the .document and shall became effective when one or more
counterparts have been signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf, as
of the date and year first above written.
InterQuest
By:/s/ Douglas A. Shumate
-----------------------------------------------
Name: Douglas A. Shumate, CFO
Title: Vice President, Finance and Administration
Cybernet
By:/s/ Felix L. Boccucci Jr.
-----------------------------------------------
Name: Felix Boccucci
Title: CFO
InterQuest Confidential Page 5
<PAGE> 6
***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
OPERATOR SERVICES PRICING FOR CYBERNET
EXHIBIT A
<TABLE>
LIVE OPERATOR:
ATTEMPTS PER MONTH PRICE PER ATTEMPT*
<S> <C>
[___________________] [____]
[___________________] [____]
[_____________________] [____]
[________] [____]
</TABLE>
<TABLE>
AUTOMATED OPERATOR:
ATTEMPTS PER MONTH PRICE PER ATTEMPT*
<S> <C>
[____________________] [_____]
[____________________] [_____]
[________] [_____]
</TABLE>
VALIDATION SERVICES:
[__________________________]
PORT UTILIZATION:
[______]
CALL RATING:
[_____________]
TRANSMIT OUTCLEARING TO ZPDI:
[_________________________________]
OUTCLEAR CREDIT CARD CALLS TO TBR:
[_______________]
[___________________________________________________________]
*[____________________________________________________________________________
_______________________________________________________________]
<PAGE> 7
DIRECTORY ASSISTANCE
(411, 1-555-1212, NPA-555-1212 CALLS)
PRICE PER ATTEMPT [_____]
NPA'S WE WILL SERVE FOR DA:
ALABAMA 205
334
FLORIDA 305
352
407
561
904
954
GEORGIA 404
706
770
912
KENTUCKY 502
LOUISIANA 318
504
MISSISSIPPI 601
N. CAROLINA 704
910
S. CAROLINA 803
864
TENNESSEE 423
615
901
NPA'S WE WILL NOT SERVE FOR DA:
FLORIDA 813
941
KENTUCKY 606
N. CAROLINA 919
<PAGE> 8
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
<TABLE>
<CAPTION>
CARRIER
CODE COUNTRY RATE
<S> <C> <C> <C>
355 ALBANIA [_____]
213 ALGERIA [_____]
684 AMERICAN SAMOA [_____]
33 ANDORRA [_____]
244 ANGOLA [_____]
809 ANGUILLA [_____]
809 ANTIGUA [_____]
54 ARGENTINA [_____]
7885 ARMENIA [_____]
297 ARUBA [_____]
247 ASCENSION ISLAND [_____]
672 AUST EXT TER [_____]
61 AUSTRALIA [_____]
43 AUSTRIA [_____]
7994 AZERBAIJAN [_____]
7892 AZERBAIJAN [_____]
809 BAHAMAS [_____]
973 BAHRAIN [_____]
880 BANGLADESH [_____]
809 BARBADOS [_____]
7017 BELARUS [_____]
32 BELGIUM [_____]
501 BELIZE [_____]
229 BENIN REPUBLIC [_____]
809 BERMUDA [_____]
975 BHUTAN [_____]
591 BOLIVIA [_____]
387 BOSNIA [_____]
267 BOTSWANA [_____]
55 BRAZIL [_____]
809 BRITISH V.I. [_____]
673 BRUNEI [_____]
359 BULGARIA [_____]
226 BURKINA FASO [_____]
95 BURMA [_____]
257 BURUNDI [_____]
855 CAMBODIA [_____]
</TABLE>
<PAGE> 9
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
<TABLE>
<CAPTION>
CARRIER
CODE COUNTRY RATE
<S> <C> <C> <C>
237 CAMEROON [_____]
238 CAPE VERDE ISLANDS [_____]
809 CAYMAN ISLANDS [_____]
236 CENTRAL AMERICA REP _ [_____]
235 CHAD [_____]
56 CHILE [_____]
86 CHINA [_____]
672 COCOS/CHRISTMAS ISL. [_____]
57 COLOMBIA [_____]
269 COMOROS [_____]
242 CONGO REPUBLIC [_____]
682 COOK ISLAND [_____]
S06 COSTA RICA [_____]
385 CROATIA [_____]
53 CUBA [_____]
357 CYPRUS [_____]
42 CZECHOSLOVAKIA [_____]
45 DENMARK [_____]
246 DIEGO GARCIA [_____]
I253 DJIBOUTI [_____]
809 DOMINICA [_____]
809 DOMINICAN REP [_____]
593 ECUADOR [_____]
20 EGYPT [_____]
503 EL SALVADOR [_____]
240 EQUATORIAL GUINEA [_____]
372 ESTONIA [_____]
251 ETHIOPIA [_____]
298 FAEROE ISLAND [_____]
500 FALKLAND ISLAND [_____]
679 FIJI ISLAND [_____]
358 PINLAND [_____]
33 FRANCE [_____]
596 FRENCH ANTILLE [_____]
594 FRENCH GUIANA [_____]
689 FRENCH POLYNESIA [_____]
241 GABON REPUBLIC [_____]
220 GAMBIA [_____]
7883 GEORGIA [_____]
49 GERMANY (WEST) [_____]
233 GHANA [_____]
350 GIBRALTAR [_____]
30 GREECE [_____]
</TABLE>
<PAGE> 10
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
<TABLE>
<CAPTION>
CARRIER
CODE COUNTRY RATE
<S> <C> <C> <C>
299 GREENLAND [_____]
809 GRENADA [_____]
590 GUADELOUPE [_____]
671 GUAM [_____]
5399 GUANTANAMO [_____]
502 GUATEMALA [_____]
245 GUINEA BISSAU [_____]
224 GUINEA REPUBLIC [_____]
592 GUYANA [_____]
509 HAITI [_____]
504 HONDURAS [_____]
852 HONG KONG [_____]
36 HUNGARY [_____]
354 ICELAND [_____]
91 INDIA [_____]
62 INDONESIA [_____]
98 IRAN [_____]
964 IRAQ [_____]
353 IRELAND [_____]
972 ISRAEL [_____]
39 ITALY [_____]
225 IVORY COAST [_____]
809 JAMAICA [_____]
81 JAPAN [_____]
962 JORDAN [_____]
7312 KAZAKHSTAN [_____]
7327 KAZAKHSTAN [_____]
254 KENYA [_____]
686 KIRIBATI [_____]
82 KOREA REPUBLIC [_____]
965 KUWAIT [_____]
7332 KYRGYZSTAN [_____]
856 LAOS [_____]
371 LATVIA [_____]
961 LEBANON [_____]
266 LESOTHO [_____]
231 LIBERIA [_____]
218 LIBYAN ARAB [_____]
4175 LICHTENSTN [_____]
370 LITHUANIA [_____]
352 LUXEMBOURG [_____]
853 MACAO [_____]
389 MACEDONIA [_____]
</TABLE>
<PAGE> 11
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
<TABLE>
<CAPTION>
CARRIER
CODE COUNTRY RATE
<S> <C> <C> <C>
261 MADAGASCAR [_____]
265 MALAWI [_____]
60 MALAYSIA [_____]
960 MALDIVES [_____]
223 MALI REPUBLIC [_____]
356 MALTA [_____]
871 MARISTAT (ATLANTIC EAST) [_____]
874 MARISTAT (ATLANTIC WEST) [_____]
873 MARISTAT ONDIAN) [_____]
872 MARISTAT (PACIFIC) [_____]
692 MARSHALL ISLAND [_____]
222 MAURITANIA [_____]
230 MAURITIUS [_____]
269 MAYOTTE ISLAND [_____]
52 MEXICO [_____]
691 MICRONESIA [_____]
373 MOLDOVA [_____]
3393 MONACO [_____]
976 MONGOLIA [_____]
809 MONTSERRAT [_____]
212 MOROCCO_ [_____]
7095 MOSCOW [_____]
258 MOZAMBIQUE [_____]
95 MYANMAR. [_____]
670 N MARIANA ISLAND [_____]
264 NAMIBIA [_____]
674 NAURU [_____]
977 NEPAL [_____]
31 NETHERLANDS [_____]
599 NETHERLANDS ANTILLE [_____]
809 NEVIS [_____]
687 NEW CALEDONIA [_____]
64 NEW ZEALAND [_____]
505 NICARAGUA [_____]
227 NIGER REPUBLIC [_____]
234 NIGERIA [_____]
683 NIUE ISLAND [_____]
672 NORFOLK ISLAND [_____]
47 NORWAY [_____]
968 OMAN [_____]
92 PAKISTAN [_____]
680 PALAU [_____]
507 PANAMA [_____]
</TABLE>
<PAGE> 12
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
<TABLE>
<CAPTION>
CARRIER
CODE COUNTRY RATE
<S> <C> <C> <C>
675 PAPUA NEW GUINEA [_____]
595 PARAGUAY [_____]
51 PERU [_____]
63 PHILIPPINES [_____]
48 POLAND [_____]
351 PORTUGAL [_____]
974 QATAR [_____]
262 REUNION ISLAND [_____]
40 ROMANIA [_____]
7073 RUSSIA [_____]
250 RWANDESE REPUBLIC [_____]
670 SAIPAN [_____]
378 SAN MARINO [_____]
239 SAO TOME [_____]
966 SAUDI ARABLA [_____]
221 SENEGAL [_____]
248 SEYCHELLES [_____]
232 SIERRA LEONE [_____]
65 SINGAPORE [_____]
386 SLOVENIA [_____]
677 SOLOMON ISLAND [_____]
27 SOUTH AF~CA [_____]
34 SPAIN [_____]
94 SRI LANKA [_____]
290 ST. HELENA [_____]
809 ST. KITTS [_____]
809 ST. LUCIA [_____]
508 ST. PIERRE/MIQ [_____]
809 ST. VINCENT [_____]
597 SURINAME [_____]
268 SWAZILAND [_____]
46 SWEDEN [_____]
41 SWITZERLAND [_____]
963 SYRIAN ARAB [_____]
886 TAIWAN [_____]
7377 TAJIKISTAN [_____]
255 TANZANIA [_____]
66 THAILAND [_____]
228 TOGO [_____]
676 TONGA ISLAND [_____]
809 TRINIDAD/TOBAGO [_____]
809 TRINIDAD/TOBAGO [_____]
216 TUNISA [_____]
</TABLE>
<PAGE> 13
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
<TABLE>
<CAPTION>
CARRIER
CODE COUNTRY RATE
<S> <C> <C> <C>
90 TURKEY [_____]
809 TURKS/CIACOS ISL. [_____]
688 TUVALU [_____]
256 UGANDA [_____]
7062 UKRAINE [_____]
971 UNITED ARAB [_____]
44 UNITED KINGDOM [_____]
598 URUGUAY [_____]
7371 UZBEKISTAN [_____]
678 VANUATU [_____]
39 VATICAN CITY [_____]
58 VENEZUELA [_____]
84 VIETNAM [_____]
681 WALLIS & FORT. [_____]
685 WEST SAMOA [_____]
967 YEMEN [_____]
38 YUGOSLAVIA [_____]
243 ZAIRE REPUBLIC [_____]
260 ZAMBIA [_____]
263 ZIMBABWE [_____]
</TABLE>
<PAGE> 1
EXHIBIT 10.28
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
AGREEMENT FOR TELECOMMUNICATION SERVICES
THIS AGREEMENT is entered into by and between Cybernet with
offices located in West Point, Georgia (hereinafter "Customer") and DELTACOM,
INC., an Alabama corporation with offices located in Arab, Alabama, (hereinafter
DeltaCom"), collectively referred to as the "Parties", and shall be effective on
the date last appearing below.
WHEREAS, Customer desires to purchase certain telecommunication
services from DeltaCom; and
WHEREAS, DeltaCom desires to provide Customer with certain
telecommunication services.
NOW THEREFORE, in consideration of the mutual promises and
covenants contained herein, DeltaCom and Customer agree as follows:
1. TERM: The term of this Agreement shall commence on the date of
signature and continue for a period of twelve (12) consecutive months. Upon
expiration of the term hereof, this Agreement shall be continued month to month
thereafter, with either Party having the right to terminate this Agreement by
giving 60 days prior written notice to the other.
2. SERVICES PROVIDED BY DELTACOM: Subject to the terms and conditions of
this Agreement, DeltaCom shall provide certain long distance telecommunications
services (the "Services") to Customer as further described in Attachment 1. Both
parties agree that the services provided herein which are subject to regulation
by any governmental entity, agency or commission shall be provided in accordance
with the governmental entity's, agency's, or commission's rules and regulations
and DeltaCom's current approved tariff and as the same may be amended from time
to time. All charges for usage of the services to be provided by DeltaCom, or by
Customer to its customers, hereunder shall not exceed the maximum limit charges
established by order or ruling of any governmental agency or entity from time to
time, if any such limits are established.
3. RATES: The rates applicable to the Services provided to Customer by
DeltaCom are contained in Attachment 1.1.
4. PAYMENT FOR SERVICES: A statement for Services provided to Customer under
this Agreement shall be submitted to Customer by DeltaCom on a monthly basis and
shall be due and payable on the due date stated therein (which shall not be
earlier than thirty (30) days after Customer's receipt of the statement). The
first and the final statement for Services will be for a partial month in the
event the service dates do not coincide with DeltaCom billing dates. Payments
received more than ten (10) days from the due date will be considered delinquent
and will bear interest at the
<PAGE> 2
rate of one and one half percent (1.5%) per month or at the maximum rate allowed
by law, whichever is less, on any sum remaining delinquent. Customer shall be
responsible for payment to DeltaCom for all excise, sales, use and other similar
taxes which may be levied by any governing body for Service furnished under this
Agreement. All statements shall be deemed to be correct and binding upon
Customer unless written notice is provided to DeltaCom of any disputed charges
within six (6) months of the date of the statement. In no event does such excuse
Customer from making payment within the time provided herein.
5. SUSPENSION OF SERVICE FOR NONPAYMENT: DeltaCom may suspend Service
ten (10) days after mailing or telefaxing written notice to Customer of
nonpayment of any sum fifteen (15) or more days past the statement due date (but
only if the Customer does not cure the nonpayment within the ten (10) day
period). Following a suspension of Service(s), DeltaCom may terminate the
Service(s) to Customer, in whole or in part, without further notice to Customer,
if nonpayment is not corrected within five (5) days of suspension of Service.
Neither suspension or termination of the Service will relieve Customer of any
obligation to pay DeltaCom's statement(s) for Services. Should this Agreement be
terminated by Customer prior to the expiration of the term of this Agreement,
Customer shall be responsible for payment of all reasonable costs, charges, and
expenses incurred by DeltaCom resulting from the early termination of this
Agreement.
6. SECURITY FOR PAYMENT: Upon request by DeltaCom, Customer agrees to
provide financial statements and/or other indications of financial
circumstances.
7. COMPLIANCE WITH ADMINISTRATIVE PROCEDURES: Customer shall comply with
the administrative procedures of DeltaCom which have been previously delivered
to Customer, and as the same may be amended from time to time by mutual
agreement of the parties in writing, regarding providing of documentation and
information necessary for DeltaCom to provide the Services described herein to
Customer.
8. BRANDING OF CALLS: Customer shall be responsible for assuring that
for billing purposes all Services provided hereunder shall be branded in the
name of Customer and that Customer's customers and any other end users to whom
the Services are offered by Customer are informed that the Services provided and
rates charged the customer and end user are rates established by Customer.
9. CANCELLATION: Either Party shall have the right to cancel this
Agreement without liability if DeltaCom is prohibited from furnishing the
Service or if any material rate or term contained herein is materially adversely
changed by order of the highest court of competent jurisdiction to which the
matter is appealed, the Federal Communications Commission, or any other federal,
state, or local government authority.
-2-
<PAGE> 3
10. USE AND PROTECTION OF INFORMATION: The parties agree that the terms
of this Agreement or any modifications hereto and any information exchanged
between them, except information which is in the public domain, in any form, is
confidential information ("Confidential Information"). The Parties agree that
during the term of this Agreement and for a period of three (3) years
thereafter, they will not, without the prior written consent of the disclosing
Party: (i) use any portion of such Confidential Information for any purpose
other than performance pursuant to this Agreement; or (ii) disclose any portion
of such Confidential Information to a third party; provided, however that the
recipient may disclose Confidential Information to the extent such disclosure is
required either by a governmental or regulatory authority or to enforce its
rights under this Agreement. The obligations to protect Confidential Information
shall remain in effect except to the extent that such Confidential Information
(a) becomes generally available to the public other than as a result of
unauthorized disclosure by the recipient Party, (b) has been released without
similar restriction by the disclosing Party to another person or entity, (c) was
known by the recipient Party prior to disclosure or (d) was independently
developed by or furnished by an independent third party to the recipient Party
without a breach of this Agreement. Confidential Information of a tangible
nature shall remain the property of the disclosing Party, and shall be returned
to the disclosing Party or shall be destroyed upon termination of this
Agreement. The recipient Party agrees to safeguard Confidential Information
utilizing the same degree of care utilized by the recipient Party in protecting
its own confidential information.
11. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY: IN NO EVENT
SHALL DELTACOM BE LIABLE TO CUSTOMER, OR ANY END USER OR ANY OTHER PARTY, PERSON
OR ENTITY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES,
OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF
MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, LOST DATA, CLAIMS OF
THIRD PARTIES, OR DEFECTS IN TRANSMISSION, OR DELAYS, INCLUDING THOSE WHICH
MAYBE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHERWISE ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS OF DELTACOM PURSUANT TO THIS
AGREEMENT, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE AND OTHERWISE.
DELTACOM MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE
OF THE SERVICE OR THE LOCAL ACCESS, OR AS TO ANY OTHER MATTER ALL OF WHICH
WARRANTIES BY DELTACOM ARE HEREBY EXCLUDED AND DISCLAIMED. For purposes of this
Paragraph, the term "DeltaCom" shall be deemed to include DeltaCom its parent
entity, affiliates and subsidiaries.
-3-
<PAGE> 4
12. INDEMNITY: (A) Each Party, its officers, agents or employees engaged
in performance under this Agreement shall at no time be deemed to be performing
as agents or employees of the other Party, or as joint venturers, and any acts,
errors or omissions of such officers, agents and employees shall not be deemed
to be those of the other Party. (B) Each Party shall indemnify and hold the
other and/or all of its officers, agents, servants, parent, subsidiaries and
employees ("Affiliates") or any of them, harmless from and against any and all
losses, claims, damages, liabilities, costs, and expenses ("Claims") imposed
upon either Party (including without limitation damages to property or injuries,
including death, to Affiliates, employees or subcontractors, and all other
persons performing this Agreement) as a result of a negligent act or omission on
the part of the indemnifying Party, its Affiliates or subcontractors in
connection with the performance of this Agreement or as a result of a breach or
default of any covenant of the indemnifying Party , its Affiliates or
subcontractors in connection with the performance of this Agreement or as a
result of a breach or default of any covenant of the indemnifying Party under
this Agreement.
13. FORCE MAJEURE: Except as provided in this Agreement, either Party
may delay performance hereunder due to causes beyond its reasonable control,
including but not limited to acts of God, fire, explosion, vandalism, cable cut,
storm or other similar catastrophes; any law, order, regulation, direction,
action or request of the United States government, or of any other government,
including state and local governments, having jurisdiction over either of the
parties, or of any department, agency, commission, court, bureau, corporation or
other instrumentality of any one or more of said governments, or of any civil or
military authority; national emergencies; insurrections; riots; wars; or
strikes, lock-outs, work stoppages or other labor difficulties. If such delay in
performance shall be on the part of DeltaCom and shall be for more than thirty
(30) days, then Customer may terminate this Agreement with no liability on the
part of any Party. The affected Party shall use its best efforts to remove the
cause of the delay.
14. ADDITIONAL PROVISIONS:
(A) The failure of either Party to give notice of default or to enforce
or insist upon compliance with any terms or conditions of this Agreement, the
waiver of any term or condition of this Agreement, or the granting of an
extension of time for performance, shall not constitute the permanent waiver of
any term or condition of this Agreement, and this Agreement and each of its
provisions shall remain at all times in full force and effect until modified by
the parties in writing.
(B) Each Party agrees to comply with, and shall require its agents,
servants, employees and contractors to comply with all applicable laws, rules,
regulations and orders of all governmental and quasi-governmental agencies
having jurisdiction over such Party or its telecommunication services and to
obtain and maintain in effect all permits, licenses, approvals, and agreements
that are needed to operate its telecommunication services and perform its
obligations under this Agreement.
-4-
<PAGE> 5
(C) In event suit is brought or an attorney is retained by any
Party to this Agreement to enforce the terms of this Agreement or to collect any
moneys due hereunder or to collect money damages for breach hereof, the
prevailing Party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorney's fees, court costs, costs of
investigation and other related expenses incurred in connection therewith. All
suits brought by either Party must be commenced within one (1) year of the
action on which the claim is based, or less if so required by Alabama law.
(D) No subsequent agreement between Customer and DeltaCom concerning the
Services shall be effective or binding unless it is made in writing, and no
representation, promise, inducement or statement or intention has been made by
either Party which is not embodied herein.
(E) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns; provided, however,
neither Party may assign or transfer its right or obligations under this
Agreement without prior written consent of the other Party, which consent shall
not be unreasonably withheld.
(F) Notices under this Agreement shall be in writing and delivered by
overnight express courier service or by registered or certified mail, return
receipt requested, postage paid, to the person whose names and business
addresses appear herein, or as otherwise provided by proper notice hereunder,
and the effective date of any notice under this Agreement shall be the date of
delivery or refusal of such notice, and not the date of mailing.
TO DELTACOM: Susan Crane, Vice President Special Markets
DeltaCom, Inc.
113 South Main Street
P.O. Box 1233
Arab, AL 35016
COPY TO: Assistant General Counsel
DeltaCom, Inc.
700 Boulevard South, Suite 101
Huntsville, AL 35802
TO CUSTOMER: Cybernet
Felix Boccucci
312 West 8th Street
West Point, GA 31833
-5-
<PAGE> 6
(G) The Parties agree that in the event a decision or rating by a
regulatory authority at the federal, state or local level materially affects the
rights or obligations of either Party arising out of this Agreement, the Parties
will negotiate in good faith to modify this Agreement in light of such decision.
Should said decision or ruling prevent the continuance of these services then
either Party may terminate this Agreement with notice to the other Party without
further liability hereunder, except as may be provided in this Agreement.
(H) This Agreement sets forth the entire understanding of the Parties
and supersedes any and all prior agreements, arrangements or understandings
relating to the subject matter hereof.
(I) This Agreement and all other documents and writings associated
herewith shall be governed by the laws of the state of Alabama. If any part of
any provision of this Agreement or any other agreement, document or writing
given pursuant to or in connection with this Agreement shall be invalid or
unenforceable under applicable law, said part shall be ineffective to the extent
of such invalidity only, without in any way affecting the remaining parts of
said provision or remaining provisions of this Agreement and the Parties hereby
agree to negotiate with respect to any such invalid or unenforceable part to the
extent necessary to render such part valid and enforceable.
CUSTOMER:
CYBERNET
Witness: By: /s/ Felix L. Boccucci, Jr.
-----------------------------
Name: Felix L. Boccucci, Jr.
-----------------------------
Title: Chief Financial Officer
----------------------------
/s/ Dixie B. Noles Date: May 1, 1997
- ------------------------------------ -----------------------------
DELTACOM:
Witness: By: /s/ Doug Shumate
-----------------------------
Name: Doug Shumate
-----------------------------
Title:
-----------------------------
/s/ Date:
- ------------------------------------ -----------------------------
-6-
<PAGE> 7
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1
Service Description
SERVICES OFFERED
DeltaCom will provide the following services to Customer consisting of, but not
be limited to, the following:
Domestic and International Outbound Dedicated Services
Operator Services
Domestic Directory Assistance (NPA-555-1212)
"Extended" rates apply to [_______________________________].
The following services will be billed in increments of [_________]:
[___________________________]
The following services will be billed in increments of [__________________
__________________________________________________________] therereafter:
[________________________________]
The following services will be billed [_______________]:
[_____________________________________________]
ACCESS
[_____________________________________________________________________________
______________________________________________________________________________
______]
EXCLUSIVE PROVIDER
To the extent consistent with equal access requirements or any other legal or
regulatory requirements, Customer agrees that DeltaCom shall be the exclusive
provider of Customer's switched network services described in Attachment 1.1.
This exclusivity provision shall not prohibit or restrict in any manner Customer
from utilizing its own internal switch network services.
-7-
<PAGE> 8
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.1
Base Rates
Customer shall be responsible for payment of all facility cost for any "long
haul" facilities, e.g., T1 facilities between Customer's locations and
DeltaCom's switch, to receive the following described rates:
Domestic Outbound Dedicated Services:
[__________________]
[_________________]
[___________________________]
International Outbound Dedicated Services:
[_________________________]
[_____________________________]
Domestic Directory Assistance (NPA-555-1212):
[____________________________________________________________________________
______]
[___________________________________________]
Customer listings (local service) must be listed with Bell for DA service
availability. This is to be provided to Customer by ITC/VTC or directly to Bell
or Customer.
Operator Services - see Exhibit A
Tariffed approved name for branded services by Customer must be filed and
provided to Operator Service group.
Separate trunk group from Operator Service switch to VTC will be required for
branding purposes.
There will be a [____] charge for the initial customized (branded) recording.
Any changes to the recording will incur a [___] for implementation.
Facility Cost
[____________________________________________________________________________]
[________________________________]
These charges are quoted to Customer at [________________]
[______________________________________________________________________________
_________________________________________]
Call Recording
[________________________________________________________________________
_______________________________________________________________________]
-8-
<PAGE> 1
EXHIBIT 10.29
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
FIRST ADDENDUM TO SERVICE AGREEMENT
THIS FIRST ADDENDUM ("Addendum") to that certain agreement for provision for
telecommunication services is entered into by and between Knology (formerly
known as Cybernet), a Georgia Corporation, with offices located in West Point,
Georgia ("Customer") and DELTACOM, INC., an Alabama corporation, with offices
located in Arab, Alabama ("DeltaCom").
WITNESSETH
WHEREAS, DeltaCom provides telecommunications Services to Customer pursuant to
that certain agreement for the provision of telecommunications services dated
April 3, 1997 entered into by and between Customer and DeltaCom ("Agreement");
and
WHEREAS, the parties to the Agreement desire to add certain terms and conditions
to the Agreement to further the relationship between the parties.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and in the Agreement, DeltaCom and Customer agree as follows:
1. Additional Terms.
1.1 Calling Card Printing
DeltaCom will provide batch card printing to Customer with the
following requirements: Customer will provide the plastic card stock
and is responsible for the reorder of plastic card stock. A minimum of
3 weeks will be required to have cards reordered. A minimum charge of
[___] per order will be applied which will cover up to [___] cards.
These charges only apply to printing on one side of the card. The card
stock should have the dialing instruction preprinted on the back side
of the card. Information required to print the cards must be provided
to DeltaCom on diskette. For over [___] cards, the following rates
apply:
# of Cards Per card
-----------------------------------
[________] [_____]
[________] [_____]
[____________] [_____]
1.2 CallingCard Service
DeltaCom will originate and terminate the calling card service for
Customer. The card numbers will reside in DeltaCom's switches and will
be supplied to Customer in batch orders. Customer will be allowed two
active universal toll free numbers for calling card access. Customer
will be responsible for all calls on the card numbers issued to
Customer. Customer should notify DeltaCom immediately when Customer
suspects fraudulent calls on any of their assigned calling cards.
Periodically, DeltaCom will request Customer to deactivate calling
cards that have not had usage for a period of 6 months.
Rates for Calling Card Service is: [__________________________] for
domestic originated and completed calling card calls,
[_______________] for Canada originated and domestic completed.
<PAGE> 2
1.3 Prepaid Cards
Production costs [________________] cards
Custom voice recordings [______] per recording
Usage rate: [_____] per minute (includes inbound, outbound, platform
processing)
2. Effective Date. The terms and conditions of this Addendum shall become
effective on the date this Addendum is last signed below.
3. Term. The term of this Addendum shall coincide with the Term of the
Agreement.
4. Other Terms and Conditions. All other terms and conditions of the Agreement
shall remain in full force and effect, as if fully stated therein.
5. Conflict. If there are any conflicting terms or conditions between the terms
and conditions of this Addendum and the terms and conditions of the Agreement,
the terms and conditions of this Addendum shall control.
6. Entire Agreement. Any and all prior agreements made with Customer, whether
written or oral, regarding the subject matter of this Addendum shall be
superseded by this Addendum. Exclusive of any tariff modifications initiated by
DeltaCom, once this Addendum has been executed, any amendments hereto must be
made in writing and signed by both parties.
IN WITNESS WHEREOF, Customer and DeltaCom have executed this Addendum to the
Service Agreement, by their duly authorized representatives, on the day and year
indicated below.
DELTACOM: CUSTOMER
DeltaCom, Inc. Knology
By: /s/ Susan T. Crane By: /s/ Taylor E. Nipper
----------------------------- -------------------------
Name: Susan T. Crane Name: Taylor E. Nipper
-----------------------
Title: Vice President Title: Vice President
Special Markets ----------------------
Date: 7-7-97 Date: 7-2-97
--------------------------- -----------------------
Witness: /s/ Mona J. Barbee Witness: /s/ Kim Dagenhart
------------------------ --------------------
<PAGE> 1
EXHIBIT 10.45
AN ORDINANCE NO. 50-76
AN ORDINANCE OF THE CITY OF MONTGOMERY, ALABAMA, PROVIDING
FOR THE CONSTRUCTION, OPERATION, REGULATION AND
CONTROL OF CABLE TELEVISION SYSTEMS
Adopted June 22, 1976
Approved:
/s/ Jim Robinson
- -----------------------
Jim Robinson, Mayor
City of Montgomery
<PAGE> 2
ORDINANCE FOR REGULATION OF
CABLE TELEVISION SYSTEMS
INDEX
<TABLE>
<CAPTION>
Page(s)
-------
Section and Title
- -----------------
<S> <C>
Section 1. Short Title . . . . . . . . . . . . . . . . . . . . . . 1
-----------
Section 2. Definitions . . . . . . . . . . . . . . . . . . . . . . 1,2,3,4
-----------
Section 3. Franchise To Operate Necessary . . . . . . . . . . . . . 4,5
------------------------------
Section 4. Terms Of Franchise. . . . . . . . . . . . . . . . . . . 5,6
------------------
Section 5. Limitations Of Franchise. . . . . . . . . . . . . . . . 6,7,8
------------------------
Section 6. Liability And Indemnification. . . . . . . . . . . . . . 8,9,10
-----------------------------
Section 7. Technical Requirements - Channel Capacity. . . . . . . . 10
-----------------------------------------
Section 8. Safety Requirements. . . . . . . . . . . . . . . . . . . 11
-------------------
Section 9. Service Standards - Business Office - Resolution Of
---------------------------------------------------
Complaints . . . . . . . . . . . . . . . . . . . . . . . 11,12,13
----------
Section 10. Conditions On Street Occupancy. . . . . . . . . . . . . 14,15
------------------------------
Section 11. Construction. . . . . . . . . . . . . . . . . . . . . . 16,17,18
------------
Section 12. Indemnity Bond. . . . . . . . . . . . . . . . . . . . . 18
--------------
Section 13. Franchise Payments. . . . . . . . . . . . . . . . . . . 19,20
------------------
Section 14. Rates Charged To Subscribers . . . . . . . . . . . . . . 20,21,22
----------------------------
Section 15. Removal Of Facilities Upon Request . . . . . . . . . . . 22
----------------------------------
Section 16. Public Service Requirements . . . . . . . . . . . . . . 22,23
---------------------------
Section 17. Amendment Of Ordinance And Franchises. . . . . . . . . . 23
-------------------------------------
Section 18. Application Procedures . . . . . . . . . . . . . . . . . 23,24,25
----------------------
Section 19. Renewal Procedures . . . . . . . . . . . . . . . . . . . 27,28
------------------
Section 20. Tampering, Unauthorized Connections, Etc. . . . . . . . 28
----------------------------------------
Section 21. Continued Use Of Individual Antennas Protected . . . . . 28,29
----------------------------------------------
Section 22. Grantee May Promulgate Rules. . . . . . . . . . . . . . 29
----------------------------
Section 23. Delegation Of Powers. . . . . . . . . . . . . . . . . . 29
--------------------
Section 24. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 29
-------
Section 25. Rights And Remedies Are Cumulative. . . . . . . . . . . 29
----------------------------------
Section 26. Invalid Provisions. . . . . . . . . . . . . . . . . . . 30
------------------
Section 27. Repeal Of Other Ordinances. . . . . . . . . . . . . . . 30
--------------------------
</TABLE>
-i-
<PAGE> 3
EXHIBIT 10.45
AN ORDINANCE NO. 50-76
AN ORDINANCE OF THE CITY OF MONTGOMERY, ALABAMA PROVIDING
FOR THE CONSTRUCTION, OPERATION, REGULATION AND CONTROL OF
CABLE TELEVISION SYSTEMS.
SECTION 1. SHORT TITLE. This Ordinance shall be known and
may be cited as the "Montgomery Cable Television Ordinance."
SECTION 2. DEFINITIONS. For the purposes of this Ordinance,
the following terms, phrases, words and their derivations shall have the
meaning given herein, unless the context clearly indicates that another meaning
is intended. When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular umber
and words in the singular number include the plural number. The word "Shall"
is always mandatory and not merely directory.
(1) "Agency" means the City.
(2) "Auxiliary Services" means any communications service
in addition to "regular subscriber services," including, but not limited to pay
TV, burglar alarm service, data transmission, facsimile service, home shopping
service, and similar communications service.
(3) "Cable Television System" or "CATV System" is any
facility that in wholeor in part, receives directly, or indirectly, over the
air, and amplifies or otherwise modifies the signals transmitting programs
-1-
<PAGE> 4
broadcast by one or more television or radio stations and distributes such
signals by wire or cable to subscribing members of the public who pay for such
service.
(4) "Channel" is a band of frequencies six (6) megahertz
wide in the electromagnetic spectrum capable of carrying either one audiovisual
television signal and a few non-video signals or a large number of non-video
signals.
(5) "City" is the City of Montgomery, Alabama, a
municipal corporation.
(6) "City Council" is the City Council of the City of
Montgomery, Alabama, or any successor thereto.
(7) "Federal Communications Commission," or "FCC" is the
present federal agency of that name as constituted by the Communications Act of
1934, or any successor agency created by the United States Congress.
(8) "Franchise" is an authorization granted by the City
Council which permits the construction, operation and maintenance of a cable
television system within the Franchise Area under the terms of this Ordinance.
(9) "Franchise Area" means that portion of the City of
Montgomery, Alabama, including any area hereafter added thereto during the term
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of any franchise granted hereunder, for which a franchise is granted under the
authority of this Ordinance. The Franchise Area may or may not include all of
the City of Montgomery.
(10) "Grantee" is a holder of a cable television franchise
issued by the City of Montgomery.
(11) "Gross Revenues" means revenues derived directly or
indirectly by a grantee from both regular subscriber service and auxiliary
service.
(12) "Gross Subscriber Revenues" means those revenues
derived directly or indirectly by a grantee from the supplying of regular
subscriber service; that is, the installation fees, disconnect and reconnect
fees, and fees for regular cable benefits including the transmission of
broadcast signals and access and origination channels if utilized. It does not
include revenues derived from auxiliary services or from any taxes whether or
not passed on to users, per program or per channel charges, leased channel
revenues, advertising revenues, or any other income derived from the system.
(13) "Major Stockholder" is a beneficial owner, directly
or indirectly, of ten percent (10%) or more of the issued and outstanding
voting stock of any corporation.
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(14) "Persons" are any people, firms, corporations,
associations or other legally recognized entities.
(15) "Public Street" is the surface of and the space above
and below any public street, avenue, highway, boulevard, concourse, driveway,
bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, alley,
right-of-way, public utility easement, and any other public ground or water
within or belonging to the City.
(16) "Regular Subscriber Service" is that service
regularly provided to all subscribers. It includes all broadcast signal
carriage, FCC-required access channel carriage including origination
programming. It does not include specialized programming for which a
per-program or per-channel charge is made.
(17) "Subscriber" means any person receiving regular
subscriber service.
SECTION 3. FRANCHISE TO OPERATE NECESSARY. It shall be
unlawful to commence or engage in the construction, operation or maintenance of
a cable television system without a franchise issued under this Ordinance. The
City Council may, by ordinance, award a franchise to construct, operate and
maintain a cable television system within all or any portion of the City to any
person
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whether operating under an existing franchise or not, who makes application for
authority to furnish a cable television system which complies with the terms
and conditions of this Ordinance. Provided, that this section shall not be
deemed to require the grant of a franchise to any particular person or to
prohibit the City Council from restricting the number of grantees should it
determine such a restriction would be in the public interest.
SECTION 4. TERMS OF FRANCHISE.
(1) Any franchise granted by the City Council shall be
for a term of fifteen (15) years following the date such franchise is accepted
by the grantee, and, upon application of the grantee and review of the
performance of grantee in a public hearing, the City Council may renew the
franchise for successive fifteen-year periods, with such modification of terms
as the City Council may determine.
(2) The City Council may terminate any franchise in the
event Grantee shall refuse, or neglect to comply with any material requirement
or limitation contained in this Ordinance.
(3) Should the City Council determine that Grantee is
not, in its opinion, in compliance with this Ordinance and any Franchise issued
thereunder, it shall so notify Grantee and Grantee shall, within thirty (30)
days, bring the system into compliance, reporting corrective action taken to
the City Council.
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(4) If the City Council is not satisfied that compliance
has been achieved, or that good faith progress is being made toward compliance,
it may schedule a public hearing to determine whether the Franchise should be
revoked. The Grantee and the public shall be given at least thirty (30) days'
notice of such a hearing, and all interested parties shall be heard in open
hearing. At the conclusion of the public hearing, the City Council shall
determine whether the Franchise should be terminated and shall set forth, in
writing, the facts and reasons upon which its decision is based.
SECTION 5. LIMITATIONS OF FRANCHISE.
(1) Any franchise granted under this Ordinance shall be
nonexclusive and nothing herein shall be construed to prevent the City Council
from granting identical or similar franchises to more than one person, within
all or any portion of the City.
(2) A grantee, shall, at all times during the life of its
franchise, be subject to the lawful exercise of the City's police power,
strictly adhere to the City laws and ordinances, and such reasonable
regulations as the City Council may subsequently promulgate thereunder.
(3) All privileges prescribed by such a franchise shall
be subordinate to any prior lawful occupancy of the public streets, and the
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City Council reserves the right to reasonably designate where a grantee's
facilities are to be placed within the public ways.
(4)(a) A franchise shall be a privilege which is personal to
the original grantee. It shall not be sold, transferred, leased, assigned, or
disposed of, in whole or in part, either by sale, merger, consolidation or
otherwise, without prior consent of the City Council expressed by resolution,
and then only under such conditions as may therein be prescribed. Any such
transfer or assignment shall be made only by an instrument in writing, which
shall include an acceptance of all terms and conditions of the franchise by
transferee, a duly executed copy of which shall be filed with the Agency within
thirty (30) days after such transfer or assignment.
(b) Consent of the City Council shall not be granted
until it has examined the proposed assignee's legal, financial, technical,
character and other qualifications to construct, operate and maintain a cable
television system in the City and has afforded all interested parties notice of
an opportunity to be heard on the question.
(c) Consent of the City Council shall not be arbitrarily
refused; provided, that the proposed assignee possesses the
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requisite qualifications and agrees, in writing, to comply with all provisions
of the Franchise and this Ordinance.
(d) Transfer of twenty percent (20%) or more of the
voting securities of a corporation Grantee to a person not presently a
stockholder shall be deemed to be a transfer of control.
(e) No such consent shall be required for a transfer:
(i) in trust, of system assets by mortgage or by
other hypothecation, to secure an indebtedness;
(ii) to a parent or subsidiary of a corporate
grantee; or
(iii) to a corporation whose stock is held by the
same stockholders as grantee;
(iv) of less than twenty percent (20%) of the
voting securities of a corporate grantee unless
such transfer also results in a transfer of
voting control;
(v) of stock from one present stockholder to
another stockholder unless such transfer also
results in a transfer of voting control.
SECTION 6. LIABILITY AND INDEMNIFICATION.
(1) A grantee shall pay, and by its acceptance of a
franchise specifically agrees to pay, any and all damages or penalties which
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The City may be legally required to pay as a result of the grantee's
installation, operation or maintenance of a cable television system under this
Ordinance whether or not the acts or omissions complained of are authorized,
allowed or prohibited by the City.
(2) Grantee shall at all times indemnify the City and
save the City harmless from any and all claims, demands and/or suits, whether
for damages to person or property or for any reason whatsoever which the City
shall be required to pay arising proximately, consequentially or otherwise by
reason of installation, operation or existence of said cable television
station, or from the maintenance, continuation or use thereof or the
abandonment thereof.
(3) A grantee shall also pay all expenses incurred by the
City in defending itself with regard to any and all damages and penalties
mentioned in subsection (1) above. These expenses shall include all
out-of-pocket expenses, including reasonable attorneys' fees and the reasonable
value of services rendered by any employee of the City.
(4) The Grantee shall maintain, throughout the term of
the franchise, liability insurance insuring the City and the Grantee with
regard to all damages mentioned in subsection (1), above, caused by the Grantee
or its agents, in the minimum amounts of :
(a) Workmen's compensation insurance as provided by the
laws of the State of Alabama.
(b) $500,000 for bodily injury or death to any one
person, within the limit, however of $1,000,000, for bodily injury or death
resulting from any one accident.
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(c) $100,000 for property damage resulting from any one
accident. The insurance policies obtained by a grantee in compliance with this
section shall be issued by a company or companies acceptable to the City, and a
current certificate or certificates of insurance, along with written evidence
of payment of all required premiums, shall be filed and maintained with the
Agency during the term of this Franchise. Said policies shall name the City as
an additional insured and shall contain a provision that a written notice of
cancellation or reduction in coverage of said policy shall be delivered to the
City ten (10) days in advance of the effective date thereof.
SECTION 7. TECHNICAL REQUIREMENTS - CHANNEL CAPACITY.
The CATV system to be constructed by Grantee shall be
installed, maintained, and operated at all time in full compliance with the
technical and channel capacity standards of the Federal Communications
Commission. The results of annual performance tests conducted in accordance
with Section 76.601(c), FCC Rules (or such other section of the Rules as shall
incorporate its substance) shall be retained for at least five (5) years and
available for inspection by the City. The system shall provide a minimum of
twenty (20) channels of at least six (6) MHz each available for immediate or
potential use.
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SECTION 8. SAFETY REQUIREMENTS.
A Grantee shall, at all times:
(1) Install and maintain its wires, cables, fixtures, and
other equipment in accordance with the requirements of the City Building Code
and Electrical Safety Ordinances, and in such manner that they will not
interfere with any installations of the City.
(2) Keep and maintain in a safe, suitable, substantial
condition, and in good order and repair, all structures, lines, equipment, and
connections in, over, under and upon the streets, sidewalks, alleys, and public
ways or places of the City, wherever situated or located.
SECTION 9. SERVICE STANDARDS - BUSINESS OFFICE -
RESOLUTION OF COMPLAINTS.
Throughout the life of its franchise, a Grantee shall:
(1) Maintain all parts of its system in good condition
and in accordance with standards generally observed by the cable television
industry. Sufficient employees shall be retained to provide safe, adequate and
prompt service for all of its facilities.
(2) Maintain a conveniently-located business office and
service center to which subscribers may telephone without incurring added
message units or toll charges. This office shall be open during all usual
business hours, and be so operated that complaints
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and requests for repairs or adjustments may be received by telephone at any
time when any television signals are being broadcast.
(3) Dispatch personnel to investigate all service
complaints and equipment malfunctions within 24 hours and strive to resolve
such complaints as promptly as possible. Planned interruption of service shall
be only for good cause. Insofar as possible, planned service interruptions
shall be preceded by notice, be of brief duration, and occur during minimum
viewing hours.
(4) Maintain a complete list of all complaints received
and the measures taken to resolve them in form to be approved by Agency. This
list shall be available to the Agency upon request.
(5) Permit the Agency to inspect and test the system's
technical equipment and facilities upon reasonable notice during normal
business hours.
(6) Responsibility for the administration of any
franchise granted hereunder and for the resolution of all complaints against a
grantee regarding the quality of service, equipment malfunctions, and similar
matters, is hereby delegated to the City under such reasonable rules as the
City may from time to time prescribe.
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The Grantee shall notify subscribers at the time of initial subscription to the
system of the procedure for reporting and resolving complaints by delivering to
each subscriber a notice in form approved by Agency.
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SECTION 10. CONDITIONS ON STREET OCCUPANCY.
(1) Any pavements, sidewalks, curbing or other paved area
taken up or any excavations made by a grantee shall be done under the
supervision and direction of the Agency under permits issued for work by the
proper officials of the City, and shall be done in such manner as to give the
least inconvenience to the inhabitants of the City. A grantee shall, at its
own cost and expense, and in a manner approved by the Agency, replace and
restore any such pavements, sidewalks, curving or other paved areas in as good
a condition as before the work involving such disturbance was done, and shall
also make and keep full and complete plats, maps and records showing the exact
locations of its facilities located within the public streets, ways and
easements of the City. These maps shall be available for inspection at any
time during business hours by the Agency.
(2) A grantee shall, at its expense, protect, support,
temporarily disconnect, relocate, or remove, any of its property when required
by the City by reason of traffic conditions, public safety, road construction,
change of street grade, installation of sewers, drains, water pipes, power
lines, signal lines, tracts, or any type of municipal improvements; provided,
however, that the Grantee shall, in all such cases, have the privilege of
abandoning
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any property in place.
(3) A grantee shall, on the request of any person holding
a building moving permit issued by the City, temporarily raise or lower its
wires to permit the moving of the building. The expense of such temporary
raising or lowering of wires shall be paid by the person requesting same, and
the Grantee shall have the authority to request such payment in advance. The
Grantee shall not be given less than 72 hours' advance notice to arrange for
such temporary wire changes.
(4) A Grantee shall have the authority to trim the trees
upon and overhanging the public streets so as to prevent the branches of such
trees from coming in contact with the wires and cables of the Grantee, except
at the option of the City such trimming may be done by it or under its
supervision and direction at the expense of the Grantee.
(5) In all sections of the Franchise Area where the
cable, wires, or other similar facilities of public utilities are placed
underground, the Grantee shall place its cables, wires or other like facilities
underground to the maximum extent that existing technology reasonably permits
the Grantee to do so.
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SECTION 11. CONSTRUCTION.
(1) A Grantee shall extend the installation of cables,
amplifiers, and related equipment throughout the area covered by its franchise
as rapidly as practicable, but in any event, shall:
(a) Begin engineering studies within 30 days after
accepting its franchise.
(b) Begin awarding construction contracts within 60 days
after receiving certification from the FCC.
(c) Begin construction of its proposed system within 90
days after receiving certification from the FCC, and execution of necessary
pole attachment agreements.
(d) Begin rendering service to subscribers within 1 year
after receiving certification from the FCC.
(e) Complete construction of 40% of its proposed system
(measured in terms of total linear strand miles) within two years after
receiving certification from the FCC, and complete an additional 20% each year
thereafter so that after 5 years the entire system shall be substantially
constructed and the Grantee capable of providing service no more than 60 days
after receiving an application for service to every dwelling unit within the
Franchise Area except to the extent that density of homes, adverse terrain, or
other factors render making such service available impracticable. For the
purposes of
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determining compliance with the provisions of this subparagraph (e), and to
provide for a reasonable policy requiring extension of energized trunk lines of
the cable system within the Franchise Area so as to achieve compliance with the
obligations imposed by this section, Grantee shall extend such lines to all
areas of the Franchise Area having a minimum of 50 homes per street mile.
(f) File a map and progress report with the Agency at the
close of each calendar year, showing the exact areas of the City being served
by the cable television system and the location and identification of major
component parts of the system.
(2) Failure on the part of a Grantee to commence and
diligently pursue each of the foregoing requirements and to complete each of
the matters set forth herein, shall be grounds for termination of its franchise
pursuant to the terms of Section 4(2) hereof; provided, however, that the City
Council may at its discretion extend the time for the commencement and
completion of construction and installation for additional periods in the event
the Grantee, acting in good faith, experiences delays by reasons of
circumstances beyond its control.
(3) Upon the failure of a Grantee to satisfactorily
complete any work upon the public streets as may be required by law or the
terms of its franchise, within the time prescribed, the City, at its option,
may cause such work to be done and the Grantee shall pay to the City the cost
thereof within 30 days
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after receipt of an itemized report.
SECTION 12. INDEMNITY BOND.
(1) Concurrently with the acceptance of this franchise, a
Grantee shall deposit with the Agency, cash or acceptable negotiable securities
fully guaranteed by the United States, in the amount of $50,000 to guarantee to
the City the Grantee's performance. In the event the Grantee fails to comply
with one or more of the provisions of its franchise, then the City shall retain
said sum as damages for Grantee's breach of its obligations. At such time as
Grantee shall certify that construction of the system is substantially
complete, and service available to substantially all the residents of the City,
said cash or securities may be replaced by a bond, written by an acceptable
surety, in said amount, to indemnify the City against any loss it may suffer in
the event the Grantee fails to comply with one or more provisions of its
franchise. The Grantee and its surety shall be jointly and severally liable
under the terms of the bond for any damages or loss suffered by the City as a
result of the Grantee's non-performance, including the full amount of any
compensation, nonindemnification, or cost of removal of any property of the
Grantee in the event of default, plus a reasonable allowance for attorneys'
fees and costs, up to the full amount of the bond. The bond shall provide for
30 days' prior written notice to the City Council of any intention on the part
of the Grantee to cancel, fail to renew, or otherwise materially alter its
terms.
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(2) Neither said deposit of cash, nor the filing of an
indemnity bond with the Agency, nor the receipt of any damages recovered by the
City thereunder, shall be construed to excuse faithful performance by the
Grantee under the terms and conditions of its franchise for damages, either to
the full amount of the bond or otherwise.
SECTION 13. FRANCHISE PAYMENTS.
(1) Any person awarded a franchise under this Ordinance
shall pay to the City, each year during the life of the franchise, a franchise
fee in the amount of three (3%) percent of its annual Gross Subscriber Revenues
derived from its operation of the franchised cable television system within the
franchised area limits. The amount of any application fee shall be a credit
against the franchise fees thereafter becoming due. Should FCC Rules be
amended to allow the imposition of franchise fee charges upon gross revenues
from auxiliary services, this provision of the Ordinance and of any franchise
issued thereunder, may, after public hearing, be so amended.
(2) A Grantee shall file with the City, within 90 days
after the expiration of any calendar year or portion thereof during which its
franchise is in force, a financial statement certified by a responsible officer
of the Grantee, showing in detail the Gross Subscriber Revenues, as defined
herein, of the Grantee during the preceding calendar year or portion thereof.
It shall be the duty of the Grantee to pay the City within 15 days after the
time for filing such statement, the sum prescribed above or any unpaid balance
thereof for the
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calendar year covered by such statements.
(3) The City shall have the right to inspect the
Grantee's records showing the Gross Subscriber Revenues from which its
franchise payments are computed and shall also have the right of audit and
recomputation of any and all amounts paid under the Ordinance. No acceptance
of payment shall be construed as a release or as an accord and satisfaction of
any claim the City may have for further or additional sums payable under this
Ordinance or for the performance of any other obligation hereunder; however, an
accounting rendered to the City and to which no exception is made within 3
years after the receipt by the City shall be deemed to be accurate and shall
not thereafter be subject to question or made the basis of any claim by City
against Grantee.
SECTION 14. RATES CHARGED TO SUBSCRIBERS.
(1) Any franchise issued shall set forth the initial
rates which Grantee may charge its subscribers upon commencing service.
(2) Any rate established shall be reasonable, just, and
fair to the public and shall provide the Grantee a return upon its investment
reasonably sufficient to:
(a) assure confidence in Grantee's soundness;
(b) support its credit and attract necessary capital
under efficient and economical management;
(c) provide a return to equity owners commensurate with
current returns on investment and other enterprises having corresponding
rights.
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(3) No rate established shall afford any undue preference
or advantage among subscribers but separate rates may be established for
separate classes of subscribers and rates may reflect the increased cost of
providing service to isolated or sparsely populated areas.
(4) Changes in established rates may be made only upon
authorization of the City Council. Should Grantee desire to change any rate or
rates, it shall file a petition with the City Council at lease ninety (90) days
prior to the proposed date of change. The petition shall detail the proposed
changes and set forth the reason changes are desired. Upon receipt of a
petition for rate change, the City Council shall schedule and publish notice of
a public hearing on the matter to be held within sixty (60) days from date of
receipt of petition. At the public hearing, all interested parties shall be
heard. Evidence shall be taken and received on all of the elements necessary
to be considered in determining the reasonableness of the proposed rates,
including the return experienced by the Company on its investment. Thereafter,
the City Council shall decide the matter by a majority vote and render a
written decision approving, disapproving or modifying the proposed rate
changes. The decision shall set forth complete findings of fact and
conclusions regarding all of the basic elements considered in determining the
rates, as set forth above.
(5) If no decision is rendered by the City Council within
ninety (90) days after receipt of petition for change of rate, Grantee may
institute the
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proposed changes upon an interim basis. Rates charged on an interim basis
shall be conformed to the decision of the City Council when rendered. If
requested by the City Council, the Grantee shall post a security bond on an
acceptable surety company to guarantee any adjustments or refunds that may be
required.
SECTION 15. REMOVAL OF FACILITIES UPON REQUEST.
Upon termination of service to any subscriber, a Grantee shall
promptly remove all its facilities and equipment from the premises of such
subscriber upon his request, or failing promptly to do so, the same shall be
deemed abandoned.
SECTION 16. PUBLIC SERVICE REQUIREMENTS.
A Grantee shall:
(1) If requested by the City, provide at least one
service outlet to City Hall, the Public Affairs Building, and each fire station
within its Franchise Area at no cost to the City, and, if requested by the
City, provide at least one service outlet to each elementary and secondary
public school within its Franchise Area, at no cost to the school involved,
provided said municipal buildings and schools are not more than 150 feet from
Grantee's trunk line. Any additional service outlets to such facilities shall
be charged on the basis of labor and material cost plus a reasonable overhead
thereon.
(2) Make its facilities immediately available to the City
upon request during the course of any emergency or disaster.
(3) Provide, in accordance with FCC requirements, a
channel or
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channels for local government, education, and public access use. No charge,
except as may be permitted by FCC Rules, shall be made for such use, but such
use shall be subject to reasonable terms and conditions established by the
Grantee in accordance with the rules of the FCC.
(4) Construct and maintain local production facilities to
serve the needs of the entities utilizing public service channels, the use of
which shall also be subject to reasonable terms and conditions established by
the Grantee in accordance with the rules of the FCC. SEE ATTACHED #2
SECTION 17. AMENDMENT OF ORDINANCE AND FRANCHISES.
The City Council shall amend this Ordinance, and any franchise
issued hereunder, upon its own motion or the application of a grantee whenever
amendment is necessary to conform to amendments to Section 76.31 of the FCC
Rules which shall be incorporated into this Ordinance within one year of their
adoption or at the time of franchise renewal, whichever comes first. No
amendment shall be adopted except after full, open public hearing affording due
process, and no amendment substantially amending the existing rights and
obligations of the Grantee shall be adopted without Grantee's consent.
SECTION 18. APPLICATION PROCEDURES.
This Ordinance itself grants no authority to operate a cable
television system to any person. Such grants are only made by the adoption of
a separate ordinance awarding a specific franchise to an applicant who has
complied with the provisions of this Ordinance.
(1) Any person interested in obtaining a franchise to
operate a cable television system in the franchise area shall
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submit a written application to the City Council together with non-refundable
application fee of $100.00 which shall contain the following information:
(a) The name, address and form of business of the
applicant. If the applicant is a corporation, it shall also state the names,
addresses and occupations of its officers, directors and major stockholders,
and the names and addresses of any parent or subsidiary companies. If
applicant is a corporation controlled by another corporation, the names,
addresses and occupations of the officers, directors and major stockholders of
the controlling corporation shall also be stated. If the applicant is a
partnership or other unincorporated association, the name and address of each
member, whether active or inactive, shall be set forth, and if one or more
partners are corporations, the names, addresses and occupations of such
corporation's officers, directors and major stockholders shall also be stated.
(b) A list of all other cable television systems, if any,
in which the applicant (or any partner or major stockholder of the applicant)
has a substantial interest, stating the location, approximate number of homes
served, and the name and address of the local franchising body.
(c) A thorough description of the proposed cable
television system to be installed and operated; the manner in which the
applicant proposes to construct, install, maintain and operate the same; and
the extent and manner in which existing or future poles or other facilities of
public
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utility companies will be used in the proposed system, together with a map or
maps delineating proposed service areas if the applicant proposes to serve less
than the entire City.
(d) A schedule of proposed rates and charges to all
classes of subscribers for both installation and monthly service, and a copy of
the proposed service agreement between the applicant and its proposed
subscribers.
(e) A copy of any contract which may exist between the
applicant and any public utility providing for the use of such utility's
property, such as poles, lines or conduits.
(f) A statement setting forth all agreements and
understandings; whether written, oral, or implied, between the applicant and
any other person with respect to the proposed franchise or the proposed cable
television operation. If a franchise should be granted to a person posing as a
front or representative of another undisclosed person, such franchise shall be
voidable by the City.
(g) An estimate of the cost of constructing the
applicant's proposed system, and a financial statement prepared in form
satisfactory to the City Council showing applicant's financial status and is
financially ability to meet these proposed costs.
(h) A sworn statement acknowledging this applicant's
familiarity with and eligibility under the provisions of this Ordinance and the
Rules
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of the FCC and its intention to abide by the same.
(i) Any such supplementary information as the City
Council shall at any time demand in order to reasonable determine whether the
represented franchises will be granted.
(2) No application for a franchise shall be accepted by
the City Council until it has published its intention to award such a franchise
or franchises and solicited the filing of applications. Sealed applications
shall then be accepted from all interested parties for a period of 60 days, and
all applications shall be opened at the time and place to be specified by the
City. No applications shall be accepted after the date and time specified.
(3) The City Council shall then
(a) specify a date, not less than 30 days nor more than
60 days following the expiration of the filing period, upon which all bona fide
applicants (those paying the prescribed fee, filing complete applications and
responding to all proper inquiries) shall participate in a public hearing
before the City Council;
(b) specify a public place where interested parties may
inspect all the bona fide applications.
(4) After hearing the evidence, opinions and
representations of all interested parties including members of the public, the
City Council shall then render a decision awarding a franchise to one or more
applicants (or rejecting all applicants if none is found qualified) based upon
its findings
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as to the relative qualifications of the applicants to render satisfactory CATV
service. The Council's decision on all applications shall be final and
conclusive.
SECTION 19. RENEWAL PROCEDURES
(1) A franchise may be renewed by the City Council for a
period of up to 15 years upon the written request of the Grantee without
soliciting additional applications. Such a renewal request shall be filed at
last 6, but not more than 18 months prior to the expiration of the franchise
and shall be accompanied by a non-refundable application fee of $1,000.00. A
renewal request may propose modifications in the term of the Grantee's
franchise which shall be considered by the City Council but in any case, the
City Council may, upon its own motion, modify the terms of a Grantee's
franchise subject to the conditions set forth in paragraph (2), below.
(2) Upon receipt of a request for a renewal of a
franchise, the City Council shall schedule a public hearing on the matter,
giving at least 30 days notice of such hearing and any franchise modifications
proposed by either the Grantee or the City Council. After hearing all of the
evidence, opinions and representations, the City Council shall render a
decision to renew or not to renew the Grantee's franchise, and if the former
course if taken whether or not its franchise should be modified in any way. A
Grantee shall file its acceptance of a renewal franchise within 30 days after
it is offered by the City Council and upon failure to do so shall be
conclusively presumed to have consented to the expiration of its franchise.
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(3) In the event of non-renewal or termination of a
franchise, the City hereby agrees to require any successor grantee to purchase
Grantee's facilities at a cost not to exceed its then fair market value, with a
reduction for any uncompensated damages incurred by the City in connection with
the Grantee's operation. If such fair market value cannot be agreed upon by
the parties, it shall be determined by a three-member Arbitration Panel, one
member to be selected by the City, one by the franchisee, and the third member
by the two members first named. The parties shall divide the expenses of
arbitration evenly among themselves.
SECTION 20. TAMPERING, UNAUTHORIZED CONNECTIONS, ETC.
(1) It shall be unlawful for any person, without the
consent of the owner thereof, to willfully tamper with, remove or injure any
cables, wires or equipment used for distribution of television signals, radio
signals, pictures, programs or sound within the City.
(2) It shall be unlawful for any person, firm, or
corporation to make or use any unauthorized connection, whether physically,
electrically, acoustically, inductively or otherwise, with any part of a
franchised cable television system within the City for the purposes of enabling
himself or others to receive any television signal, radio signal, picture,
program or sound, without payment to the owner of said system.
SECTION 21. CONTINUED USE OF INDIVIDUAL ANTENNAS
PROTECTED.
It is not the City Council's intention to prohibit the
erection or continued
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use of individual television antennas, and no one is or will be required to
receive cable television service or connect with a television system.
SECTION 22. GRANTEE MAY PROMULGATE RULES.
A Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions of its business as shall be reasonably
necessary to enable it to exercise its rights and perform its services under
this Ordinance and the Rules of the FCC, and to assure uninterrupted service to
each and all of its subscribers.
SECTION 23. DELEGATION OF POWERS.
Any delegable right, power or duty of the City Council, the
City, the Agency, or any official of the City may be transferred or delegated
by resolution to an appropriate officer, employee, or department of the City.
SECTION 24. NOTICES.
Every direction, notice, or order to be served upon a Grantee
shall be sent to the local office described in Section 9(2), supra. Every
notice to be served upon the City shall be delivered, or sent by certified mail
to the Agency at: City Hall, City of Montgomery, Montgomery, Alabama 36104.
The delivery of such notice shall be deemed to have been at the time of
receipt.
SECTION 25. RIGHTS AND REMEDIES ARE CUMULATIVE.
The rights and remedies reserved to the parties by this
Ordinance are cumulative and shall not add or subtract from any other rights or
remedies which they have with respect to the subject matter of this Ordinance,
and a waiver thereof
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at any time shall not affect any other time.
SECTION 26. INVALID PROVISIONS.
If any provision of this Ordinance, or the particular
application thereof, shall be held invalid by any court, administrative agency,
or other body with appropriate jurisdiction, the remaining provisions, and
their application, shall not be affected thereby.
SECTION 27. REPEAL OF OTHER ORDINANCES.
All ordinances and parts of ordinances in conflict herewith
are hereby repealed.
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<PAGE> 33
AN ORDINANCE OF THE CITY OF MONTGOMERY, ALABAMA PROMOTING A
FRANCHISE FOR THE CONSTRUCTION, ACQUISITION, OPERATION, AND MAINTENANCE OF A
CABLE TELEVISION SYSTEM WITHIN THE CITY LIMITS OF THE CITY OF MONTGOMERY,
ALABAMA TO ______BE IT ORDAINED by the City Council of the City of Montgomery,
Alabama that:
WHEREAS, the City Council of the City of Montgomery, Alabama,
after full public proceedings affording due process, has determined that
__________________________________________________________ is possessed of the
requisite legal, character, financial, technical, and other qualifications to
construct, own, and operate a cable television system to serve the City of
Montgomery; and that its construction and financing are adequate and feasible.
NOW, THEREFORE
Section 1: There is hereby granted to_________________________________________
________________________________, its heirs, successors and assigns, for a term
of fifteen (15) years, the right, authority, and power, to establish,
construct, acquire, maintain, and operate a cable television system within the
City limits of the City of Montgomery, Alabama, to render, furnish and sell
cable service therefrom, and to use and occupy the public streets,
rights-of-way, easements (including all easements dedicated for utility
purposes) for such purposes, subject to the terms and conditions of the
Montgomery Cable Television Ordinance adopted on the ______ day of
_______________, 1976, and the Rules of the Federal Communications Commission,
which are hereby incorporated by reference and made a part of this franchise
contract.
<PAGE> 34
Section 2: This franchise is non-exclusive and [is limited to those areas of
the City of Montgomery hereinafter described and designated on the attached
map.] [the Franchise Area consists of the entire City of Montgomery as now
constituted and as hereafter modified and amended.
Section 3: The franchise is in lieu of any and all rights, privileges
immunities, and authorities which may be held by the Grantee or the successors
to any interest of the Grantee, pertaining to the construction, acquisition,
operation or maintenance of any cable television system in the City of
Montgomery, and the acceptance of this franchise by the Grantee shall operate
as an abandonment of any and all such rights, privileges, immunities, and
authorities within the City of Montgomery, any and all construction, operation,
and maintenance by any grantee of any cable television system in the City of
Montgomery shall be in all instances and respects under and pursuant to this
franchise and not under or pursuant to any other right, privilege, immunity or
authority whatsoever.
Section 4: Time is of the essence in this franchise, and the Grantee shall not
be relieved of its obligation to comply promptly with any of the provisions of
this Ordinance by any failure of the City of Montgomery to enforce prompt
compliance.
Section 5: This franchise merely authorizes the construction, acquisition,
operation and maintenance of a cable television system as provided by the
Montgomery Cable Television Ordinance adopted on the ____ day of
_______________, 1976.
Section 6: (1) This franchise shall take effect immediately and remain in
force for a term of fifteen (15) years upon
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<PAGE> 35
the filing of an unconditional acceptance by the Grantee. Such acceptance
must:
(a) be in the form of a writing duly executed and
sworn to;
(b) contain a promise that the Grantee shall comply with
and abide by all terms, provisions, and conditions of this
franchise; and,
(c) be filed with the Agency within thirty (30) days from
the date of passage of this Ordinance. Grantee shall exercise
none of the rights granted by this Ordinance until evidence of
compliance with the bonding and insurance requirements of
Section 6(3), and (4) of the Cable Television Ordinance has
been filed with the Agency.
(2) Should the Grantee fail to comply with paragraph (1),
above, it shall acquire no rights, privileges, or authority
under this franchise whatsoever.
Section 7: The following rates and charges are hereby authorized for service
under this franchise and shall not be changed by the Grantee without prior
approval of the Commission given as provided by Section 14 of the Cable
Television Ordinance.
[Here set forth rates as approved by the City Council.]
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Subpart K--Technical Standards all pertinent technical standards at all subscriber terminals.
Additional tests, repeat tests, or testes involving specified
Section 76.601 Performance tests. subscriber terminals by be required by the Commission in order
to secure compliance with the technical standards.
(a) The operator of each cable television system (e) Annual performance tests shall be conducted
shall be responsible for insuring that each such system is according to the following schedule:
designed, installed, and operated in a manner that fully
complies with the provisions of this subpart. Each system Cable television
operator shall be prepared to show on request by an authorized systems in
representative of the commission, that the system does, in operation prior
fact, comply with the rules. to March 31, 1972... Tests to determine compliance with
(b) The operator of each cable television system the standards of:
shall maintain at its local office a current listing of the
cable television channels which that system delivers to its Sections - [SECTIONS ILLEGIBLE IN ORIGINAL]
subscribers and the station or stations whose signals are relating to the ratio of visual
delivered on each Class I cable television channel, and shall signal level to system noise,
specify for each subscriber the minimum visual signal level. and [SECTION ILLEGIBLE IN ORIGINAL]
It maintains on each Class I cable television channel under by March 31, 1974.
normal operating conditions.
(c) The operator of each cable television system Sections [SECTIONS ILLEGIBLE IN ORIGINAL]
shall conduct complete performance tests of that system at by March 31, 1975.
lease once each calendar year (at Intervals not to exceed 14
months) and shall maintain the resulting test data on file at Sections [SECTIONS ILLEGIBLE IN ORIGINAL]
the system's local office for at least five (5) years. It by March 31, 1976.
shall be made available for inspection by the Commission on
request. The performance tests shall be directed at Cable television
determining the extent to which the system complies with all systems commencing
the technical standards set forth in Section [SECTION ILLEGIBLE operation on or after
IN ORIGINAL]. The tests shall be made on each Class I cable March 31, 1972... March 31, 1974
television channel specified pursuant to paragraph (b) of this
section, and shall include measurements made at no less than NOTE.--Requirements for performing tests to
three widely separated points in the system, at least one of determine compliance with the standards of Section
which is representative of terminals most distant from the [SECTION ILLEGIBLE IN ORIGINAL], insofar as it relates to the
system input in terms of cable distance. The measurements may ratio of visual signal level to any undesired co-channel
be taken at convenient monitoring points in the cable network: television signal, and (a)(10) are hereby suspended for all
Provided, that data shall be included to relate the measured cable television systems, pending further action by the
performance to the system performance as would be viewed from a Commission.
nearby subscriber terminal. A description of instruments and
procedure and a statement of the qualifications of the person [Section 76.601(c) revised and note added eff. 11-23-73;
performing the tests shall be included. III(72)-3]
(d) Successful completion of the performance tests
required by paragraph (c) of this section does not relive the Section 76.605 Technical Standards.
system of the obligation to comply with
(a) The following requirements apply to the performance
of a cable television system as measured at any subscriber
terminal with a matched termination, and to each of the Class
I cable television channels in the system:
(1) The frequency boundaries of cable television
channels delivered in subscriber terminals shall conform to
those set forth in Section [SECTION ILLEGIBLE IN ORIGINAL] of
this chapter: Provided, however, that on special application
including an adequate showing of public interest, other channel
arrangements may be approved.
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<TABLE>
<S> <C>
(2) The frequency of the visual carrier shall be the lower boundary frequency of the cable television channel
maintained 1.25 MHz [ILLEGIBLE IN ORIGINAL] kHz above the referenced in the amplitude at 1.25 MHz above the lower
lower boundary of the cable television channel, except that, in boundary frequency.
those systems that supply subscribers with a converter in order (9) The ratio of visual signal level to systems noise,
to facilitate delivery of cable television channels, the and of visual signal level to any undesired cochannel
frequency of the visual carrier at the output of each such television signal operating on proper offset assignment, shall
converter shall be maintained 1.25 MHz [ILLEGIBLE IN be not less than [NUMBER ILLEGIBLE IN ORIGINAL] decibels.
ORIGINAL] kHz above the lower frequency boundary of the cable This requirement is applicable to:
television channel. (i) Each signal which is delivered by a cable
(3) The aural center frequency of the aural carrier shall television system to subscribers within the predicted Grade B
be 4.5 MHz [ILLEGIBLE IN ORIGINAL] kHz above the frequency contour for that signal, or
of the visual carrier. (ii) Each signal which is first picked up within its
predicted Grade B contour.
(4) The visual signal level, across a terminating (10) The ratio of visual signal level to the [ILLEGIBLE
impedance which correctly matches the internal impedance of IN ORIGINAL] amplitude of any coherent disturbances
the cable system as viewed from the subscriber terminals, such as intermodulation products or discrete-frequency
shall be not less than the following appropriate value: interfering signals not operating on proper offset assignments
Internal impedance: shall not be less than [NUMBER ILLEGIBLE IN ORIGINAL]
75 ohms. decibels.
200 ohms. (11) The terminal isolation provided each subscriber
Visual signal level: shall be not less than 18 decibels, but in any event, shall be
1 millivolt. sufficient to prevent reflections caused by open-circuited or
2 millivolts short-circuited subscriber terminals from producing visible
(At other impedance values, the minimum visual signal picture impairments at any other subscriber terminal.
level shall be square root 0.01332 millivolts, where Z is the (12) As an exception to the general provision requiring
appropriate impedance value.) measurements to be made at subscriber terminals, and without
(5) The visual signal level on each channel shall not regard to the class of cable television channel involved,
vary more than 12 decibels within any 24-hour period and shall radiation from a cable television system shall be measured in
be maintained within: accordance with procedures outlined in Section [SECTION
(i) 3 decibels of the visual signal level of any visual ILLEGIBLE IN ORIGINAL], and shall be limited as follows:
carrier within 6 MHz nominal frequency separation, and
(ii) 12 decibels of the visual signal level on any -------------------------------------------------------------
other channel, and Radiation
(iii) A maximum level such that signal degradation due Frequencies limit Distance
to overload in the subscriber's receiver does not occur. (microvolts/ (feet)
(6) The [ILLEGIBLE IN ORIGINAL] voltage of the meter)
aural signal shall be maintained between 13 and 17 decibels ------------------------------------------------------------
below the associated visual signal level. Up to and including 54 MHz..... 15 100
(7) The peak-to-peak variation in visual signal level Over 54 up to and including 216
caused by undesired low frequency disturbances (hum or MHz............................ 20 10
repetitive transients) generated within the system or by Over 216 MHz................... 15 100
inadequate low frequency response, shall not exceed 5 percent -------------------------------------------------------------
of the visual signal level.
(8) The amplitude characteristic shall be within a Section [SECTION ILLEGIBLE IN ORIGINAL] amended eff. 1-22-75;
range of +/- 2 decibels from 0.50 MHz to 3.25 MHz above III (72)-6]
(b) Cable television systems distributing signals by
using multiple cable techniques or specialized receiving
devices, and which, because of their basic design, can not
comply with one or more of the technical standards
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<TABLE>
<S> <C>
set forth in paragraph (a) of this section, may be connected and normal signal levels should be maintained on
permitted to operate provided that an adequate showing is made other channels.
which establishes that the public interest is benefited. In (c) As may be necessary to ensure satisfactory service to a
such instances the Commission may prescribe special technical subscriber, the Commission may require additional tests to
requirements to ensure that subscribers to such systems are demonstrate system performance or may specify the use of
provided with a good quality of service. different test procedures.
(c) Paragraph [ILLEGIBLE IN ORIGINAL] of this section (d) The frequency response of a cable television channel may
shall become effective March 31, 1972. All other provisions of be determined by one of the following methods, as appropriate:
this section shall become effective in accordance with the (1) By using a swept frequency or a manually variable signal
following schedule: generator at the sending end and a calibrated attenuator and
frequency-selective voltmeter at the subscriber terminal; or
Effective (2) By using a multiburst generator and modulator at the
date sending end and a demodulator and oscilloscope display at the
Cable television systems in operation prior subscriber terminal.
to March 31, 1972.......................... Mar. 31, 1977 (e) System noise may be measured using a frequency-selective
Cable television systems commencing voltmeter (field strength meter) which has been suitably
operations on or after March 31, 1972...... Mar. 31, 1972 calibrated to indicate [ILLEGIBLE IN ORIGINAL] noise or average
power level and which has a known bandwidth. With the system
Section 76.609 Measurements. operating at normal level and with a properly matched resistive
termination substituted for the antenna, noise power
(a) Measurements made to demonstrate conformity with the indications at the subscriber terminal are taken to successive
performance requirements set forth in Sections [SECTIONS increments of frequency equal to the bandwidth of the
ILLEGIBLE IN ORIGINAL] shall be made under conditions which frequency-selective voltmeter, summing the power indications to
reflect system performance during normal operations, including obtain the total noise power present over a 4 MHz band centered
the effect of any microwave relay operated in the Cable within the cable television channel. If it is established that
Television Relay (CAR) Service Intervening between pickup the noise level is constant within this bandwidth, a single
antenna and the cable distribution network. Amplifiers shall be measurement may be taken which is corrected by an appropriate
operated at normal gains, either by the insertion of factor representing the ratio of 4 MHz to the noise bandwidth
appropriate signals or by manual adjustment. Special signs of the frequency-selective voltmeter. If no amplifier is
inserted in a cable television channel for measurement purposes inserted between the frequency-selective voltmeter and the
should be operated at levels approximating those used for subscriber terminal in order to facilitate this measurement, it
normal operation. Pilot tones, auxiliary or substitute signals, should have a bandwidth of at least 4 MHz and appropriate
and nontelevision signals normally carried on the cable corrections must be made to account for its gain and noise
television system should be operated at normal levels to the figure. Alternatively, measurements made in accordance with the
extent possible. Some exemplary, but not mandatory, measurement NCTA standard on noise measurement (NCTA Standard 005-0669) may
procedures are set forth in this section. be employed.
(b) When it may be necessary to remove the television (f) The amplitude of discrete frequency interfering signals
signal normally carried on a cable television channel in order within a cable television channel may be deter-
to facilitate a performance measurement, it will be
permissible to disconnect the antenna which serves the channel
under measurement and to substitute therefor a matching
resistance termination. Other antennas and inputs should
remain
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<TABLE>
<S> <C>
mined with either a spectrum analyzer or with a system components. Where such placement results in a
frequency-selective voltmeter (field strength meter), which separation of less than 10 feet between the center of the
instruments have been calibrated for adequate accuracy. If dipole antenna and the system components, the dipole shall be
calibration accuracy is in doubt, measurements may be repositioned to provide a separation of 10 feet.
referenced to a calibrated signal generator, or a calibrated (4) The horizontal dipole antenna shall be rotated about a
variable attenuator, substituted at the point of measurement. vertical axis and the maximum meter reading shall be used.
If an amplifier is used between the subscriber terminal and (5) Measurements shall be made where other conductors are 10
the measuring instrument, appropriate corrections must be made or more feet away from the measuring antenna.
to account for its gain.
(g) The terminal isolation between any two terminals in the Section 76.613 Interference from a cable television system.
system may be measured by applying a signal of known amplitude In the event that the operation of a cable television system
to one and measuring the amplitude of that signal at the other causes harmful interference to reception of authorized radio
terminal. The frequency of the signal should be close to the stations, the operator of the system shall immediately take
mid-frequency of the channel being tested. whatever steps are necessary to remedy the interference.
(h) Measurements to determine the field strength of radio
frequency energy radiated by cable television systems shall be Section 76.617 Responsibility for receiver-generated
made in accordance with standard engineering procedures. Interference.
Measurements made on frequencies above 25 MHz shall include Interference generated by a radio or television receiver
the following: shall be the responsibility of the receiver operator in
(1) A field strength meter of adequate accuracy using a accordance with the provisions of Part 13, Subpart C, of this
horizontal dipole antenna shall be employed. chapter; Provided, however, That the operator of a cable
(2) Field strength shall be expressed in terms of the television system to which the receiver is connected shall be
[ILLEGIBLE IN ORIGINAL] value of synchronizing peak for encb responsible for the suppression of receiver-generated
cable television channel for which radiation can be measured. interference that is distributed by the system when the
(3) The dipole antenna shall be placed 10 feet above the interfering signals are introduced into the system at the
ground and positioned directly below the receiver.
</TABLE>
<PAGE> 1
EXHIBIT 10.45.1
ORDINANCE NUMBER 9-90
AN ORDINANCE TO AMEND ORDINANCE NO. 50-76, AN ORDINANCE OF THE CITY OF
MONTGOMERY, ALABAMA ADOPTED JUNE 22, 1976, PROVIDING FOR THE CONSTRUCTION,
OPERATION, REGULATION, AND CONTROL OF CABLE TELEVISION SYSTEMS.
BE IT ORDAINED by the City Council of Montgomery, Alabama as follows:
SECTION 5. That Section 5(2) of Ordinance Number 50-76 heretofore adopted by the
City Council of Montgomery, Alabama, on the 22nd day of June, 1976, be amended
as follows:
Section 5. Limitations of Franchise.
(2) "A grantee shall, at all times during the life of its
franchise, be subject to the lawful exercise of the City's police power,
strictly adhere to the City laws and ordinances, and such reasonable regulations
as the City Council may subsequently promulgate thereunder. No franchise issued
pursuant to the provisions of this Ordinance shall be deemed, expressly or
impliedly, to authorize the grantee to utilize its cable television system to
provide any service in such a manner as to unlawfully damage any business
competitor or other third party or violate any statutes or regulations of the
United States or the State of Alabama. Nor shall any grantee, by act or
omission, engage in any anticompetitive practice in violation of any statutes or
regulations of the United States or the State of Alabama. The provisions of this
section shall be enforceable in courts of competent jurisdiction against a
grantee by any party who alleges injury as a result of an alleged violation
thereof."
SECTION 14. That Section 14(3) of Ordinance Number 50-76 heretofore adopted by
the City Council of Montgomery, Alabama on the 22nd day of June, 1976, be
amended to read as follows:
Section 14. Rates Charged to Subscribers.
(3) "No rate established shall afford any undue preference or
advantage among subscribers, but separate rates may be established by separate
classes of subscribers and rates may be established for separate classes of
subscribers and rates may reflect the increased cost of providing service to
isolated or sparsely populated areas. In no event shall rates be established so
low for any class of subscriber or for any geographic location as to prevent,
discourage, restrict, or diminish competition in the furnishing of cable
services."
SECTION 18. That Section 18(2), (3) and (4) of Ordinance Number 50-76 heretofore
adopted by the City Council of Montgomery, Alabama on the 22nd day of June,
1976, be amended to read as follows:
<PAGE> 2
Section 18. Application Procedures.
(2) "An application which has satisfied the above criteria
shall be accepted by the City for consideration and notice published of its
acceptance. Such notice shall specify the place where a copy of the application
can be viewed, and that the City will accept written comments relative to the
application until the 3rd meeting of the Council following the date of the
notice. Said notice shall specify that a copy of all written comments are to be
also served on the applicant."
SECTION 21. That Section 21 of Ordinance Number 50-76 heretofore adopted by the
City Council of Montgomery, Alabama on the 22nd day of June, 1976, be amended to
read as follows:
Section 21. Alternative Services.
"It is not the City Council's intention to prohibit the
erection or continued use of individual television antennas, and no one will be
required to receive cable television service or connect with a television
system. It is further the policy of the City to promote the availability of
alternative services wherever possible.
ADOPTED AND APPROVED this the 16th day of January, 1990.
APPROVED: /s/ Emory Folmar
------------------------------
ATTEST: /s/ John L. Baker
--------------------------------
2
<PAGE> 1
EXHIBIT 10.51
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
INTERSTATE FIBERNET
COLLOCATION AGREEMENT
This agreement is made and entered into this 1st day of July, 1997 by and
between Interstate FiberNet and Cybernet Holding, Inc. hereinafter referred to
as ("Customer").
I. Term. Customer shall have use of the access to space at the Interstate
FiberNet Point of Presence located at [_________________________________]
(hereinafter referred to as the "POP space") for 36 months, beginning on the 1st
day of July, 1997 and ending on the 1st day of July, 1998. At the conclusion of
the minimum term, this Agreement will continue on a month-to-month basis and
will continue in such manner until either party is notified, in writing, sixty
(60) days prior to the date Customer or Interstate FiberNet desires to terminate
this Agreement.
II. Conditions of Presence. Customer may use the POP space, set forth in
Exhibit C attached hereto, for installing, maintaining and operating certain
equipment (hereinafter referred to as "Equipment"), set forth in Exhibit B
attached hereto, to interconnect with telecommunication services provided by
Interstate FiberNet to Customer or Customer's customer(s). All decisions
concerning location of the Equipment and the installation, connectivity and
maintenance of the Equipment will be at the discretion of Interstate FiberNet.
III. Rental. This Agreement is made for and in consideration of the
covenants herein contained and a monthly rental which Customer shall pay to
Interstate FiberNet of [____] per month. Customer will receive an invoice from
Interstate FiberNet for the monthly rental, and payment thereunder shall be due
within 30 days after the receipt of the invoice. Customer shall pay a late fee
on any delinquent amounts equal to the lesser of one and one-half ( 1 1/2)
percent of the unpaid balance per month or the maximum lawful rate under state
law.
<PAGE> 2
IV. Installation Charge. Customer will pay to Interstate FiberNet an
installation charge of [_____] for all equipment initially installed or located
in the POP space. There will be an additional charge for any equipment
subsequently installed or located in the POP space. This charge will be
computed in accordance with Exhibit A.
V. Obligations of Customer.
1. The Equipment and any subsequent modifications thereto shall
comply with the technical interface specification as outlined in the BellCore
Publication TR-INS-000342 (High-Capacity Digital Special Access Service) and any
other reasonable requirements that Interstate FiberNet may from time to time
establish.
2. Customer shall install or arrange for the installation,
maintenance and connectivity of the Equipment. Interstate FiberNet will provide
a representative to observe and inspect the installation of the Equipment.
3. Customer shall be responsible for the proper maintenance and
repair of the Equipment, including any maintenance or repair Interstate FiberNet
determines is necessary to eliminate any potentially unsafe or undesirable
condition. If Customer fails to rectify the condition to Interstate FiberNet's
satisfaction within ten (10) days after notification, Interstate FiberNet may
undertake or arrange for the required maintenance and/or repair. Customer shall
then reimburse Interstate for all costs relating to such maintenance or repair,
including the costs of all labor and materials. Such maintenance and repair
costs shall be in accordance with the rates set forth in Exhibit A attached to
this Agreement, plus the actual cost incurred by Interstate FiberNet for third
party vendors for such maintenance and repairs. There shall be an additional
administrative fee over and above the costs set forth herein of
[___________________] of the total bill.
4. Customer must obtain and maintain liability and contractual
liability insurance coverage in an amount adequate to protect both Interstate
FiberNet and the Customer against loss or damage. Such coverage must be at least
in the amount of $1,000,000 per occurrence. Evidence of such insurance must be
provided to Interstate FiberNet.
2
<PAGE> 3
5. Upon sixty (60) days prior written notice or, in the event of an
emergency, such time as may be reasonable, Interstate FiberNet may require
Customer to relocate the Equipment; provided, however, the site of relocation
shall afford comparable environmental conditions for the Equipment and
comparable accessibility to the Equipment. All costs of relocation of the
Equipment shall be borne by Customer; provided, however, Customer shall not be
required to pay for the cost of improving the POP space to which the Equipment
may be relocated.
VI. Obligations of Interstate FiberNet
1. Interstate FiberNet agrees to provide Customer with reasonable
access to POP space during regular business days between the hours of 8:00 AM
and 5:00 PM to the extent that such access is related to the operation,
maintenance or repair of the Equipment. Interstate FiberNet shall make
reasonable efforts to grant Customer access to the POP space and the Equipment
at other times upon twenty-four (24) hour notice to designated Interstate
FiberNet personnel. In case of emergency, Interstate FiberNet personnel. In case
of emergency, Interstate FiberNet shall make reasonable efforts to provide
Customer access to the POP space and Equipment upon two (2) hours notice to
Interstate FiberNet personnel. During such access, Interstate FiberNet personnel
must be present at all times. Customer shall reimburse Interstate FiberNet for
all costs relating to such access, including labor associated with non-business
day access, according to the rates set forth in Exhibit A. All of Customer's
rights of access under this Section shall be terminated upon termination of this
Agreement.
2. Interstate FiberNet will provide Customer with power, set forth
in Exhibit D attached hereto, a required for Equipment. Should Customer's power
usage in any month cause Interstate FiberNet's power usage to exceed by ten
percent (10%) the average monthly usage for the following year, then Customer
must reimburse Interstate FiberNet the actual cost of the extra power usage.
VII. Interstate FiberNet Liability. IN THE EVENT OTHER THAN AS A
RESULT OF ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, SHALL INTERSTATE
FIBERNET LIABILITY ARISING OUT OF THE FULFILLMENT OF THIS AGREEMENT OR ITS
PROVISION OF SERVICES HEREUNDER EXCEED THE AMOUNT OF $10.00. IN NO EVENT
SHALL
3
<PAGE> 4
INTERSTATE FIBERNET BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM OR ENTITY IN
ANY RESPECT, INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
ACTUAL, PUNITIVE, OR FOR ANY OTHER DAMAGES, OR FOR ANY OTHER LOST PROFITS OF ANY
KIND OR NATURE WHATSOEVER, ARISING OUT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT. INTERSTATE FIBERNET MAKES NO COMPLETENESS OF FITNESS FOR ANY PURPOSE
OF THE SERVICES CONTEMPLATED UNDER THIS AGREEMENT OR AS TO ANY OTHER MATTER, ALL
OF WHICH WARRANTIES BY INTERSTATE FIBERNET ARE HEREBY EXPRESSLY EXCLUDED AND
DISCLAIMED.
VIII. Indemnification. Customer shall indemnify, defend and hold
Interstate FiberNet harmless against any claims, actions or cause of action
arising out of any act or omission by Interstate FiberNet or Customer and any
of their directors, officers, agents, servants, subsidiaries, affiliates,
employees, attorneys and/or customers related to the fulfillment of this
Agreement or provision of services thereunder, including payment of
Interstate FiberNet's reasonable attorney's fees and costs.
IX. Default. The Customer shall be considered in default of this
Agreement if:
(1) Customer shall fail to cause any rental installment to be
received by Interstate FiberNet before the (10) days after the due date;
(2) If Customer violates or fails to perform or fulfill any covenant
or provision of this Agreement, or fails to perform or cause any repair or
modification to the Equipment required by Interstate FiberNet within thirty (30)
days following notification; or
(3) If Customer undergoes bankruptcy; dissolution; financial failure
or insolvency; receivership; sale or merger with another person, corporation or
other legal entity unless approved in advance by Interstate FiberNet.
(4) In the event of Customer's default of this Agreement, the entire
rent due Interstate FiberNet for the unexpired term of this Agreement
shall become due and demanded, together with all reasonable costs, attorney's
fees, expenses, and damages which may have been suffered or incurred by
Interstate FiberNet. Interstate FiberNet may also terminate the Agreement and
evict Customer from the premises should Customer fail to cure the default within
ten (10) days after receipt of notice sent to
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Interstate FiberNet setting forth the method of default. Interstate FiberNet
reserves the right to proceed one or more times against Customer for past due
installments of rent and such installments as shall become due before Customer
is evicted, together with all reasonable costs, fees, attorney's fees, expenses
and damages incurred or suffered by Interstate FiberNet. Customer expressly
waives all legal notice to vacate the premises after expiration of cure period.
X. Confidentiality. During the term of this Agreement, Interstate
FiberNet and Customer shall use their best efforts to keep the terms and
conditions, including prices, contained in this Agreement, from competitors,
the public or others who may gain benefit from such knowledge, unless
required by law to divulge such information to regulatory authorities, unless
authorized in writing to reveal such information, or unless required to do so
in connection with enforcing that party's rights hereunder.
XI. Successors and Assigns. The rights and obligations of Customer and
Interstate FiberNet under this Agreement shall ensure to the benefit of and
shall be binding upon the successors and assigns of Customer and Interstate
FiberNet. Neither party shall delegate its obligations and responsibilities or
assign its benefits hereunder without written consent of the other.
XII. Governing Law. The validity, construction, interpretation and
enforceability of the Agreement shall be governed by the laws of the State of
Georgia and all legal proceedings involving this Agreement or otherwise
relating to the transactions described herein shall be brought in Troup
County, Georgia.
XIII. Entire Agreement. This Agreement contains the entire agreement
between Customer and Interstate FiberNet and there are no representations,
inducements or other provisions other than those expressed herein. No
modifications, waiver or discharge of any provision or breach of the Agreement
shall be effective unless it is executed in writing by Customer and Interstate
FiberNet.
XIV. General.
1. Any actions in the fulfillment of this Agreement or provision of
services hereunder will not create a partnership or joint venture between the
Customer and Interstate FiberNet.
2. In the event the POP space is owned by a third party
and leased to Interstate FiberNet, no provision of this Agreement shall
operate to violate the agreement between Interstate
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FiberNet and the said third party, and Customer shall be required to observe any
and all requirements of the agreement between Interstate FiberNet and the third
party, as if those requirements were set forth herein.
3. No subsequent agreement between Interstate FiberNet and Customer
concerning the services contemplated under this Agreement shall be effective or
binding unless it is made in writing by authorized representative of the parties
hereto, and no representation, promise, inducement or statement of intention has
been made by either party which is not embodied herein.
XV. Notice. Notice under this Agreement shall be in writing and
delivered to the persons whose names and business addresses appear below, and
or otherwise provided to by proper notice hereunder, and the effective day of
any notice under this Agreement shall be the date of delivery or refusal of
such notice and not the date of mailing.
If to Interstate FiberNet: Interstate FiberNet
206 West 9th Street
P.O. Box 510
West Point, Georgia 31833
Attention: Beverly Brewster
If to Customer: CyberNet Holding Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Attention: Rickey Luke
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XVI. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original.
In Witness Whereof, the parties have executed this Contract as of the date set
forth at the beginning of the Agreement.
ACCEPTED BY: ACCEPTED BY:
(Customer)
CyberNet Holding Inc. Interstate FiberNet
1239 O.G. Skinner Drive 206 West 9th Street
West Point, Georgia 31833 West Point, Georgia 31833
By: /s/ William E. Morrow By: /s/ Steven D. Moses
--------------------- -------------------
Name: William E. Morrow Name: Steven D. Moses
Title: CEO & President Title: Sr. Vice President
Date: July 8, 1997 Date: July 10, 1997
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EXHIBIT A
INTERSTATE FIBERNET LABOR RATES
<TABLE>
<CAPTION>
<S> <C>
1. STANDARD RATE [______] PER HOUR
8:00 AM to 5:00 PM
Monday through Friday
2. OVERTIME RATES [______] PER HOUR
Prior to 8:00 AM and after 5:00 PM
Monday through Friday
3. PREMIUM TIME [_______] PER HOUR
All other times
</TABLE>
[_______] MINIMUM APPLIES TO ALL RATES
24 Hour Interstate FiberNet contact: 800-374-2350
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***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
EXHIBIT B
EQUIPMENT
Quantity Type
1. [____________]
2.
3.
4.
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EXHIBIT C
SPACE FOOTPRINT
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EXHIBIT D
POWER REQUIREMENTS
5 AMPS.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
included in or made a part of this Amendment No. 1 to Registration Statement on
Form S-4.
ARTHUR ANDERSEN LLP
January 14, 1998
2
