<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 22, 1999
REGISTRATION NO. 333-89179
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
KNOLOGY, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4812 52-242458
(State or of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Identification No.) Classification Code Number)
</TABLE>
1241 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-8553
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
CHAD S. WACHTER
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
KNOLOGY, INC.
1241 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-8553
(Name, address, including zip code, and telephone number,
including area code, of registrant's 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 any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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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.
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<PAGE> 2
EXPLANATORY NOTE TO AMENDMENT NO. 1
This Amendment No. 1 to the KNOLOGY, Inc. Registration Statement on Form
S-1 has been filed solely for the purpose of filing certain exhibits to the
Registration Statement.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <C> <S>
2.1(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
2.2(2) -- Purchase Agreement between Cable Alabama Corporation and
KNOLOGY of Huntsville, Inc., dated as of October 19, 1998.
3.1(4) -- Certificate of Incorporation of KNOLOGY, Inc.
3.2(4) -- Bylaws of KNOLOGY, Inc.
3.3(4) -- Certificate of Designations of Series A Preferred Stock
3.4(4) -- Certificate of Designations of Series B Preferred Stock
4.1(4) -- Specimen Certificate for Shares of Common Stock, par value
$0.01, of KNOLOGY, Inc.
4.2(4) -- Specimen Certificate for Shares of Series A Preferred Stock,
par value $0.01, of KNOLOGY, Inc.
4.3(4) -- Specimen Certificate for shares of Series B Preferred Stock,
par value $0.01, of KNOLOGY, Inc.
4.4(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.
4.5(1) -- Registration Rights Agreement, dated October 22, 1997,
between KNOLOGY Holdings, Inc., the Placement Agents and
SCANA Communications, Inc.
4.6 -- Form of Senior Discount Note (contained in Indenture filed
as Exhibit 4.5)
4.7 -- Form of Exchange Note (contained in Indenture filed as
Exhibit 4.5)
5.1(4) -- Opinion of Hogan & Hartson, L.L.P.
10.1(1) -- Unit Purchase Agreement, dated as of October 16, 1997
between KNOLOGY Holdings, Inc. and SCANA Communications,
Inc.
10.2(1) -- 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(1) -- Warrant Registration Rights Agreement, dated as of October
22, 1997, between KNOLOGY Holdings, Inc. and United States
Trust Company of New York
10.4(1) -- Lease Agreement dated April 15, 1996 by and between D.L.
Jordan and American Cable Company, Inc.
10.5(1) -- Pole Attachment Agreement dated January 1, 1998 by and
between Gulf Power Company and Beach Cable, Inc.
10.6(1) -- Telecommunications Facility Lease and Capacity Agreement,
dated September 10, 1996, by and between Troup EMC
Communications, Inc. and Cybernet Holding, Inc.
10.7(1) -- Master Pole Attachment Agreement dated January 12, 1998 by
and between South Carolina Electric and Gas and KNOLOGY
Holdings, Inc. d/b/a/ KNOLOGY of Charleston.
10.8(1) -- License Agreement dated September 29, 1995 by and between
Montgomery Cablevision and Entertainment, Inc. and American
Communications Services of Montgomery, Inc.
10.9(1) -- License Agreement dated January 17, 1996 by and between
American Cable, Inc. and American Communication Services of
Columbus, Inc.
</TABLE>
II-1
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <C> <S>
10.10(1) -- Addendum to License Agreement dated April 21, 1997 by and
between American Cable, Inc. and American Communication
Services of Columbus, Inc.
10.11(1) -- Lease Agreement, dated December 5, 1997 by and between The
Hilton Company and KNOLOGY of Panama City, Inc.
10.12(1) -- Billing and Collection Services Agreement dated April 2,
1997 by and between Interstate Telephone Company and
Cybernet Holding, Inc.
10.13(1) -- Certificate of Membership with National Cable Television
Cooperative, dated January 29, 1996, of Cybernet Holding,
Inc.
10.14(1) -- Stockholders' Agreement dated as of December 8, 1995 among
KNOLOGY Holdings, Inc. and Certain Stockholders thereof
10.15(1) -- Amendment No. 1 to Stockholders' Agreement dated as of
January 25, 1996.
10.16(1) -- Amendment No. 2 to Stockholders' Agreement dated as of April
18, 1996.
10.17(1) -- Amended and Restated Agreement dated as of July 28, 1997
among KNOLOGY Holdings, Inc. and Certain Stockholders
thereof
10.18(2) -- Ordinance No. 99-16 effective March 16, 1999 between
Columbus consolidated Government and KNOLOGY of Columbus,
Inc.
10.19(1) -- Ordinance No. 16-90 (Montgomery, Alabama) dated March 6,
1990.
10.20(1) -- Ordinance No. 50-76 (Montgomery, Alabama)
10.21(1) -- Ordinance No. 9-90 (Montgomery, Alabama) dated January 16,
1990.
10.22(1) -- Resolution No. 58-95 (Montgomery, Alabama) dated April 6,
1995.
10.23(1) -- Resolution No. 92-7 (Panama City Beach, Florida) dated July
23, 1992.
10.24(1) -- License (Bay County, Florida) dated January 5, 1993.
10.25(1) -- Resolution No. 97-22 (Panama City Beach, Florida) dated
December 3, 1997.
10.26(1) -- Resolution No. 2075 (Bay County, Florida) dated November 18,
1997.
10.27(3) -- Ordinance No. 5999 (Augusta, Georgia) dated January 20,
1998.
10.28(3) -- Ordinance No. 1723 (Panama City, Florida) dated March 10,
1998.
10.30(2) -- Ordinance No. 98054 (Mount Pleasant, South Carolina) dated
March 9, 1999.
10.31(2) -- Franchise Agreement (Charleston County, South Carolina)
dated December 15, 1998.
10.32(2) -- Ordinance No. 1998-47 (North Charleston, South Carolina)
dated May 28, 1998.
10.33(2) -- Ordinance No. 1998-77 (Charleston, South Carolina) dated
April 28, 1998.
10.34(2) -- Ordinance No. 98-5 (Columbia County, Georgia) dated August
18, 1998.
10.35(2) -- Switching Agreement dated May 1, 1998 between Interstate
Telephone Company and KNOLOGY Holdings, Inc.
10.36(2) -- Network Access Agreement dated July 1, 1998 between SCANA
Communications, Inc., f/k/a MPX Systems, Inc. and KNOLOGY
Holdings, Inc.
10.37(2) -- Internet Access Contract dated September 1, 1998 between ITC
Data Com Communications, Inc. and KNOLOGY Holdings, Inc.
10.38(2) -- Collocation Agreement for Multiple Sites dated on or about
June 1998 between Interstate FiberNet, Inc. and KNOLOGY
Holdings, Inc.
10.39(2) -- Lease Agreement dated October 12, 1998 between Southern
Company Services, Inc. and KNOLOGY Holdings, Inc.
10.40(2) -- Facilities Transfer Agreement dated February 11, 1998
between South Carolina Electric and Gas Company and KNOLOGY
Holdings, Inc., d/b/a KNOLOGY of Charleston.
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <C> <S>
10.41(2) -- License Agreement dated March 3, 1998 between BellSouth
Telecommunications, Inc. and KNOLOGY Holdings, Inc.
10.44(2) -- Pole Attachment Agreement dated February 18, 1998 between
KNOLOGY Holdings, Inc. and Georgia Power Company
10.46(2) -- Assignment Agreement dated March 4, 1998 between Gulf Power
Company and KNOLOGY of Panama City, Inc.
10.47(2) -- Adoption Agreements dated March 1, 1999 between KNOLOGY
Holdings, Inc. and BellSouth Telecommunications, Inc.
10.48(2) -- Lease Switching Agreement between South Carolina Net for TTE
Inc. and KNOLOGY Holdings, Inc.
10.50(2) -- Carrier Services Agreement dated September 30, 1998 between
Business Telecom, Inc. and KNOLOGY Holdings, Inc.
10.51(2) -- Reseller Services Agreement dated September 9, 1998 between
Business Telecom, Inc. and KNOLOGY Holdings, Inc.
10.52(2) -- Private Line Services Agreement dated September 10, 1998
between BTI Communications Corporation and KNOLOGY Holdings,
Inc.
10.53(2) -- Credit Facility Agreement between First Union National Bank,
First Union Capital Markets Corp. and KNOLOGY Holdings, Inc.
dated December 22, 1998.
10.54(2) -- Ordinance No. 284 (Cedar Grove, Florida) dated June 9, 1998.
10.55(2) -- License Agreement dated January 5, 1993 between County
Commissioners of Bay County Florida and Beach Cable, Inc.
10.56(2) -- Ordinance No. 647 (Lynn Haven, Florida) dated May 12, 1998
between KNOLOGY of Panama City, Inc. and the City of Lynn
Haven.
10.57(2) -- Ordinance No. 1723 (Panama City, Florida) dated March 10,
1998 between KNOLOGY of Panama City, Inc. and the City of
Panama City.
10.58(2) -- Resolution No. 97-22 (Panama City Beach, Florida) dated
December 3, 1997 between Panama City Beach, Florida and
KNOLOGY Holdings, Inc.
10.59(4) -- Form of Tax Separation Agreement between ITC Holding and
KNOLOGY, Inc.
10.60(4) -- Services Agreement between ITC Service Company and
Interstate Telephone Company, Inc.
10.61(4) -- Residual Note from KNOLOGY, Inc. to ITC Holding Company,
Inc.
10.62(5)* -- Right of First Refusal and Option Agreement, dated November
19, 1999 by and between KNOLOGY of Columbus, Inc. and ITC
Service Company, Inc.
10.63(5)* -- Services Agreement dated November 2, 1999 between KNOLOGY,
Inc. and ITC Service Company, Inc.
10.64(5)* -- Support Agreement, dated November 2, 1999 between Interstate
Telephone Company, Inc. and ITC Service Company, Inc.
12.1(4) -- Statement regarding Computation of Ratio of Earnings to
Fixed Charges.
21.1(4) -- Subsidiaries of KNOLOGY, Inc.
23.1(6) -- Consent of Arthur Andersen LLP.
23.2(6) -- Consent of Deloitte & Touche LLP.
24.1(6) -- Power of Attorney.
27.1(6) -- Financial Data Schedule for year ended 1997 (for SEC use
only).
27.2(6) -- Financial Data Schedule for year ended 1998 (for SEC use
only).
99.1(4) -- Consent of Richard Bodman to his nomination to be director
of KNOLOGY, Inc.
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <C> <S>
99.2(4) -- Consent of Alan A. Burgess to his nomination to be director
of KNOLOGY, Inc.
99.3(4) -- Consent of Donald W. Burton to his nomination to be director
of KNOLOGY, Inc.
99.4(4) -- Consent of L. Charles Hilton, Jr. to his nomination to be
director of KNOLOGY, Inc.
99.5(4) -- Consent of Donald W. Weber to his nomination to be director
of KNOLOGY, Inc.
</TABLE>
- ---------------
(1) Filed previously in connection with KNOLOGY Holdings, Inc.'s Registration
Statement on Form S-4, (File No. 333-43339) and incorporated herein by
reference.
(2) Filed previously in connection with KNOLOGY Holdings, Inc.'s Annual Report
on Form 10-K in the year ended December 31, 1998 and incorporated herein by
reference.
(3) Filed previously in connection with KNOLOGY Holdings, Inc.'s Annual Report
on Form 10-K in the year ended December 31, 1997 and incorporated herein by
reference.
(4) To be filed by amendment.
(5) Filed herewith.
(6) Previously filed.
* Certain confidential portions of this Exhibit were omitted by means of
redacting a portion of the text. This Exhibit has been filed separately with
the Secretary of the Commission without such text pursuant to our
Application Requesting Confidential Treatment under Rule 406 of the
Securities Act.
(b) Financial Statement Schedules
Schedules have been omitted because the information required to be set
forth therein is not applicable or is included elsewhere in the Financial
Statements or the notes thereto.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-1 and has duly caused this Amended Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Washington, D.C., on this 22nd day of November, 1999.
KNOLOGY, Inc.
By: *
------------------------------------
Rodger L. Johnson
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons, in the capacities indicated
below, on this 22nd day of November, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President, Chief Executive Officer and Director
- ---------------------------------------------------
Rodger L. Johnson
/s/ FELIX L. BOCCUCCI, JR. Chief Financial Officer and Vice President of
- --------------------------------------------------- Business Development (Principal Financial and
Felix L. Boccucci, Jr. Accounting Officer)
* Chairman of the Board of Directors
- ---------------------------------------------------
Campbell B. Lanier, III
* Director
- ---------------------------------------------------
William H. Scott, III
* By Attorney-in-Fact
/s/ CHAD WACHTER
- ---------------------------------------------------
Chad Wachter
</TABLE>
II-5
<PAGE> 1
EXHIBIT 10.62
*** Confidential treatment has been requested for portions of this agreement.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made as of this 19th day of November, 1999, by
and between KNOLOGY of Columbus, Inc., a Delaware Corporation ("Grantor") with
address for purposes of this Agreement at 1241 O.G. Skinner Drive, West Point,
Georgia 31833, and ITC Service Company, a Georgia Corporation ("Grantee") with
address for purposes of this Agreement at 1239 O.G. Skinner Drive, West Point,
Georgia 31833 (Grantor and Grantee collectively referred to herein as the
"Parties" and each individually, a "Party").
WHEREAS, Grantor wishes to make available to Grantee, for a fee, the right of
first refusal and an option to lease up to four (4) strands of fiber optic cable
from the Grantor; and
WHEREAS, Grantee wishes to purchase such right and option;
NOW, THEREFORE, for and in consideration of [*****], payable as set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereby promise, covenant and agree as
follows:
I. GRANT OF REFUSAL RIGHT AND OPTION.
For and in consideration of the payment by Grantee to Grantor of the sum of
[*****] (the "Option Payment"), Grantor hereby agree as follows:
Grantor hereby grants a First Right of Refusal (the "Refusal Right")
and an Option to Lease up to Four Additional Dark Fibers (the "Option")
to Grantee for the specified fiber count as set forth in the Lease
attached as Exhibit "1" (the "Fibers"). Prior to leasing to a third
party the Fibers detailed in Exhibit 1, Grantor shall provide to
Grantee written notice of the proposed lease. Grantee can exercise this
Option, at a lease price and on other terms no less favorable than
those specified on Exhibit 1, up to 30 days after the date of Grantor
informing Grantee in writing (the "Grantee Notice") that it has a bona
fide offer to lease to a third party the Fibers detailed in Exhibit 1.
In the event that Grantee does not provide written notice to Grantor of
its intent to exercise the Option within the 30 day period after the
Grantee Notice, Grantor has the right to execute the lease of these
Fibers to a third party within a period of 60 days unencumbered by the
<PAGE> 2
Refusal Right and the Option of Grantee. In the event that Grantor does
not consummate the lease to that third party within 180 days, Grantee's
Refusal Right and Option are restored and any subsequent offer to lease
the Fibers will require the above notice requirements, provided that
the Refusal Right has not expired
II. EXERCISE BY GRANTEE.
The election by Grantee to exercise the Refusal Right or the Option must be
evidenced by a written Notice of Exercise delivered to Grantor in accordance
with the provisions below. Grantee, in its Notice of Exercise for the Option,
shall designate a date and time for the effective date of the Lease, which shall
not be earlier than ninety (90) days after the date Grantee delivered the Notice
of Exercise to the Grantor, unless an earlier time is agreed upon by the Parties
in writing. In the event Grantee fails to exercise this Option during the Term,
the Option shall automatically expire and this Agreement shall immediately
terminate and be of no further force or effect.
III. NOTICES
Any notice required or permitted to be given hereunder shall be in writing and
effective on the first business day following the date of receipt. All notices
given under this Agreement shall be addressed, in the case of Grantor, as
follows:
KNOLOGY of Columbus, Inc.
1241 O.G. Skinner Drive
West Point, Georgia 31833
Attn: Felix Boccucci, Jr.
Senior Vice President,
Business Development
With a copy to:
KNOLOGY of Columbus, Inc.
1241 O.G. Skinner Drive
West Point, Georgia 31833
Attn: Chad Wachter
General Counsel
2
<PAGE> 3
And, in the case of Grantee, as follows:
ITC Service Company.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Attn: William H. Scott, III
President
IV. TERM.
The term of the Refusal Right and the Option is ten (10) years, commencing with
the date first above written, unless terminated earlier pursuant to the terms
and conditions of this Agreement.
V. MISCELLANEOUS
1. NO WAIVERS. Neither Party shall be deemed to waive any of its rights, powers
or remedies under this Agreement unless such waiver is in writing and signed by
said Party. No delay or failure by a Party in exercising any of said rights,
powers or remedies shall operate as a waiver thereof. The effective waiver by a
Party of any breach of the covenants, conditions or agreements binding on the
other Party on one or more occasions shall not be construed as a waiver or
consent to such breach on any future occasion or a waiver of any other covenant,
condition, or provision of this Agreement.
2. INDEMNITY. Grantee shall indemnify and save harmless the Grantor from failure
by Grantee to secure and obtain any required governmental approvals, consents,
licenses, or permits necessary for Grantee to legally obtain title, own or
operate the Fibers, or to in any other manner comply with rules, regulations,
Laws or ordinances of any governmental or quasi-governmental body. A Party
claiming indemnity under this provision shall notify the other Party promptly of
written claims or demands against such claiming Party for which it asserts the
other Party is responsible. Each Party shall cooperate fully with the other, and
the indemnifying Party shall control the right to settle, appeal (provided it
pays the cost of any required appeal bond), compromise or otherwise resolve any
such claim or resulting judgment; provided that such settlement, compromise or
other resolution of such claim does not result in any liability to the
indemnified Party.
3. INTERPRETATION AND CONSTRUCTION. All of the terms and provisions of this
Agreement shall be construed and interpreted pursuant to the law of the State of
Georgia, without reference to its choice of law provisions. Each party shall, in
the event of a dispute, consent and submit itself to the exclusive jurisdiction
of the State of Georgia.
4. ASSIGNMENT. Either party may assign or delegate its obligations hereunder
without the prior written consent of the other party, but upon reasonable
written notice to the other party; provided, however, such assignment shall not
relieve the assigning party of any of its liabilities.
3
<PAGE> 4
This Agreement shall be binding upon and inure to the benefit of the parties
their successors and their assigns.
5. SEVERABILITY. Any provision of this Agreement held or determined by an
arbitrator or by a court (or other legal authority) of competent jurisdiction to
be illegal, invalid, or unenforceable in any jurisdiction shall be deemed
separate, distinct and independent, and shall be ineffective to the extent of
such holding or determination without (i) affecting or invalidating the
remaining provisions of this Agreement in that jurisdiction or (ii) affecting
the legality, validity or enforceability of such provision in any other
jurisdiction.
6. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same Agreement.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the Parties with respect to the subject matter hereof, and is
intended as the Parties' final expression and complete and exclusive statement
of the terms thereof, superseding all prior or contemporaneous agreements,
representations, promises and understandings, whether written or oral. Except as
otherwise expressly provided in this Agreement, neither Party is to be bound by
any pre-printed terms appearing in the other Party's form documents, tariffs,
purchase orders, quotations, acknowledgments, invoices, or other instruments.
After the date of this Agreement, it may be amended or modified only by an
instrument in writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized officers to execute this Agreement the day and year first above
written.
KNOLOGY OF COLUMBUS, INC.
"GRANTOR"
By: /s/ Felix L. Buccucci, Jr.
---------------------------------
Name:
-------------------------------
Title: VP -- Business Development
------------------------------
ITC SERVICE COMPANY
"GRANTEE"
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
4
<PAGE> 5
EXHIBIT "1"
FIBER LEASE AGREEMENT
5
<PAGE> 6
FIBER LEASE AGREEMENT
BETWEEN
KNOLOGY OF COLUMBUS, INC.
AND
ITC SERVICE COMPANY
1
<PAGE> 7
FIBER LEASE
THIS AGREEMENT (hereinafter the "Agreement"), made as of the ____ day
of ______________, (the "Effective Date") by and between KNOLOGY of Columbus,
Inc., a Delaware corporation ("LESSOR") and ITC Service Company ("LESSEE"), a
Georgia corporation, sets forth the terms and conditions for the provision of
certain telecommunications facilities and services as hereinafter described.
WHEREAS, LESSOR has existing fiber optic facilities between West Point,
Georgia and Columbus, Georgia; and
WHEREAS, LESSEE desires to lease dark fibers from LESSOR pursuant to
the terms and conditions of this Agreement, and LESSOR is willing to lease
certain designated dark optical fibers for the purpose of transmission of
digital telecommunications signals to LESSEE pursuant to the terms and
conditions of this Agreement; and
WHEREAS, LESSEE desires, at its own expense, to obtain, supply, install
and maintain any and all equipment that LESSEE lawfully chooses to use in
connection with the Leased Fibers in order to lawfully transmit digital
telecommunications signals; and
WHEREAS, LESSEE is able and willing to pay LESSOR all payments required
under the terms and conditions of this Agreement; and
WHEREAS, the parties desire to define and set forth the terms and
conditions under which such rights will be accomplished; and
2
<PAGE> 8
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and premises hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1. DEFINITIONS
1.1 AFFILIATE - an "Affiliate" of a party means any corporation,
partnership (general or limited), limited liability company, joint venture,
corporate or government instrumentality, or other person or entity that is
controlled by or is under common control with that Party; "control" in this
context means either (i) directly or indirectly owning or having the right to
vote ownership interests possessing a majority of the aggregate voting power of
all ownership interests in that entity, or (ii) in fact having the power to
control and direct, either directly or indirectly, the business and affairs of
that entity or to elect or appoint the person (or if more than one, a majority
of the persons) who is responsible for the management and control of the
business and affairs of that entity.
1.2 EQUIPMENT - all power, electronic, optronic and telecommunications
equipment, including, without limitation, transmission, testing, switching,
alarm-monitoring, and repair equipment and all other articles of personal
property used in conjunction with the Leased Fibers.
1.3 EVENTS OF DEFAULT - has the meaning set forth in paragraph 16.
1.4 FIBER TERMINATION POINT(S) - physical locations along LESSOR's
network where LESSEE splices its facilities to the Leased Fibers.
1.5 LEASED FIBERS - the optical fibers which LESSOR permits LESSEE to
use pursuant to the terms and conditions of this Agreement. The number of Leased
Fibers and the particular fibers available to LESSEE under this Agreement is set
forth in Exhibit "A", attached hereto and made a part hereof. The term "Leased
Fibers" refers solely to the optical fibers themselves, and does not include any
associated Equipment that may be necessary or desirable to enable LESSEE or any
other person or entity to use such Leased Fibers for the purpose of transmitting
or receiving telecommunications signals.
1.6 SERVICE AFFECTING OUTAGE - any interruption or reduction in
transmission capacity or quality of the Leased Fibers that materially adversely
affects LESSEE's ability to operate and use the Leased Fibers so long as such
interruption or reduction is not caused by LESSEE's Equipment or is not due to
LESSEE's acts or omissions.
1.7 SPECIFICATIONS - the performance specifications for the Leased
Fibers that are the subject of this Agreement and are set forth in Exhibit "B",
attached hereto and made a part hereof.
ARTICLE 2. TERM
2.0 The original term of this Agreement shall commence on the Effective
Date of this Agreement and shall end on the fifteenth (15) anniversary of the
Effective Date (the "Term").
3
<PAGE> 9
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
ARTICLE 3. OBLIGATIONS OF LESSOR
3.1 LEASE. Subject to the terms and conditions of this Agreement,
LESSOR hereby grants to LESSEE the right to use the Leased Fibers during the
Term in a lawful manner for the purpose of transmitting digital
telecommunications signals and for any other lawful purpose that does not
interfere with, impair or adversely effect LESSOR or any other present or future
use of the LESSOR's fiber network or communication system.
3.2 PROVISION OF LEASED FIBERS. Subject to the terms and conditions of
this Agreement, LESSOR shall lease to LESSEE the Leased Fibers substantially in
accordance with the Specifications on Exhibit "B".
3.3 FIBER TERMINATION. Fiber Termination Point(s) shall be mutually
agreed upon by the Parties and shall be the only points at which LESSEE's
Equipment is connected to the Leased Fibers.
3.4 INTERCONNECTION POINT. LESSOR shall provide collocation space in
the POP sites (as shown on Exhibit "A") if requested by LESSEE to extent space
is available. LESSEE agress to pay a collocation charge for this service at the
then prevailing fair market rates for such collocation space. If LESSOR is
unable to provide entrance facilities into the POP sites when requested by
LESSEE during the Term, LESSOR shall install a splice can at a point in
reasonable proximity to the POP sites and LESSEE shall access the Leased Fibers
through the splice cans.
3.5 MAINTENANCE AND REPAIR. LESSOR, at its sole cost and expense, will
maintain, repair and restore the Leased Fibers in accordance with sound industry
practices.
3.6 SERVICES NOTIFICATION. Except in the case of an emergency where
notice is not feasible, LESSOR will notify LESSEE by telephone twenty-four hours
before performing maintenance, repair or restoration services which, in LESSOR's
reasonable opinion, present a risk of damage to or interference with service
over the Leased Fibers.
3.7 SERVICE RESTORATION PRIORITY. If LESSOR notifies LESSEE of any
potential or actual failure, interruption or impairment in the Leased Fibers
that LESSOR reasonably considers an emergency, then LESSOR will use good faith
efforts to take remedial action within a commercially reasonable time.
ARTICLE 4. OBLIGATIONS OF LESSEE
4.1 PAYMENT. LESSEE shall pay [*****] per month for each fiber leased
by LESSEE from LESSOR under this Agreement during the Term ("Rent").
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<PAGE> 10
4.2 DISCONNECTION OF EQUIPMENT. Upon termination of this Agreement for
any cause or reason whatsoever, LESSEE shall immediately cease and desist from
using the Leased Fibers for any purpose whatsoever. LESSOR shall have the right
to immediately disconnect, at LESSEE's sole expense, any and all splices on the
Leased Fiber joining LESSEE's Equipment, if any, to the Leased Fibers.
ARTICLE 5. APPROVALS AND CONSULTATION
5.1 NON-LIABILITY GENERALLY. Except as provided in Paragraph 5.2 below,
LESSOR shall not be liable to LESSEE for any Service Affecting Outage caused, in
whole or in part by:
5.1.1 an event of Force Majeure, as described in Article 14 of
this Agreement, below; or
5.1.2 construction, maintenance, repairs, replacements,
installation of equipment, investigations and inspections, of or
related to the Leased Fibers, performed by, on behalf of, or at the
direction of LESSEE, except to the extent that such activities are
performed by LESSOR on behalf of LESSEE.
5.2 RESTORATION SCHEDULE; COMPENSATION FOR LATE RESTORATION OF A
SERVICE AFFECTING OUTAGE. In the event of a Service Affecting Outage, LESSOR
will use its reasonable best efforts to restore LESSEE's use of the Leased
Fibers within six (6) hours after LESSOR's receipt of notice from LESSEE of the
Service Affecting Outage (the "Repair Period"). If LESSEE's use of the Leased
Fibers is not restored within twenty-four (24) continuous hours after LESSOR's
receipt of notice of such Service Affecting Outage then (i) LESSEE shall be
entitled to a credit against Rent in an amount equal to one month's Rent for the
Leased Fiber(s) (the "Rent Credit"). The Rent Credit, expense reimbursement and
rights to restore set forth in Paragraph 5.2 shall be the sole and exclusive
remedies available to LESSEE for any Service Affecting Outage.
5.3 LESSOR NOTICE OF WORK. Notwithstanding anything to the contrary in
paragraphs 5.1 and 5.2, LESSOR shall use its reasonable efforts to give LESSEE
advance notice of work that may cause a Service Affecting Outage, and, in the
event of such Service Affecting Outage caused in whole or in part by work
undertaken by or on behalf of LESSOR, LESSOR shall use its reasonable efforts to
restore LESSEE's use of the Leased Fibers as promptly as possible. Except to the
extent that such action is delayed by an event of Force Majeure as described in
Article 14 of this Agreement, or by an event set forth in subparagraph 5.1.2 of
this Agreement, all maintenance, repairs, replacements, installation of
equipment, investigations and/or inspections by LESSOR shall be performed in
accordance with a mutually agreed-upon schedule, so as to minimize inconvenience
by both Parties (hereinafter "Scheduled Maintenance").
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<PAGE> 11
ARTICLE 6. TITLE AND USE OF LESSOR SYSTEM
6.1 LEASED FIBERS. As between LESSOR and LESSEE, it is expressly
understood that LESSOR is and will at all times remain the sole owner and holder
of title to the Leased Fibers and the conduits and all real property associated
with the Leased Fiber. Nothing in this Agreement shall be construed as conveying
to LESSEE any right, title or interest in the Leased Fibers, except for the
license and right to use the Leased Fibers for the transmission of digital
telecommunications signals or any other lawful purpose pursuant to this
Agreement that does not interfere with or adversely affect LESSOR or any other
present or future use of the LESSOR's fiber optic network.
ARTICLE 7. ALTERATION OF ROUTE
7.1 RELOCATION OPTIONS. Before LESSOR significantly changes any part of
the Leased Fibers (including, without limitation, relocating or dismantling any
part of the fiber network of which the Leased Fiber is a part) or substantially
alters the character of any part of the Leased Fibers, LESSOR will give LESSEE
at least three (3) months notice, or if such notice period is impractical, then
as much notice as practical. LESSEE agrees to the extent alternative facilities
are available and re-routing is technically feasible and economically viable, to
re-route such affected part of the Leased Fiber to a new or existing fiber optic
network facilities on an alternate route between the origination and termination
points shown on Exhibit "A";
7.2 RELOCATION EXPENSES. If LESSOR makes a significant change or
alteration described in Section 7.1 upon LESSEE's request, then LESSEE will pay
all costs of such change or alteration. In all other cases, LESSOR will pay the
full costs of re-routing due to such change or alteration.
ARTICLE 8. REGULATION
8.1 LESSOR and LESSEE specifically acknowledge that this Agreement has
been negotiated and tailored to satisfy special requirements of LESSEE. LESSOR
and LESSEE intend that the transactions contemplated by this Agreement not be
classified as regulated common carriage, whether according to the classification
scheme of the Federal Communications Commission, the Georgia Public Service
Commission, or otherwise.
8.2 The Parties agree that in the event a decision by a
telecommunications regulatory authority at the federal, state or local level
necessitates modifications in this Agreement the Parties will negotiate in good
faith to modify such documents in light of such decision to permit each Party,
to the extent practicable, to enjoy the intended benefits of this Agreement.
ARTICLE 9. CONFIDENTIALITY
9.1 CONFIDENTIALITY. Neither Party hereto shall, without the other
Party's specific prior written consent, disclose to any third party any
information supplied to it by such other Party in connection with this
Agreement, which such other Party designated as confidential, proprietary or
private, if such information is not otherwise generally available to the public.
LESSOR hereby
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<PAGE> 12
designates the terms, conditions, and Exhibits of this Agreement as
confidential. Each Party's obligation under this Section 9.1 shall survive
termination of this Agreement to the fullest extent permitted by applicable law.
9.2 REMEDIES. Each Party acknowledges that a violation by it of the
covenants and terms of Paragraph 9.1 shall cause the other Party material and
irreparable harm and shall entitle such other Party, in addition to any other
remedy available to such other Party, including an award of monetary damages, to
a temporary restraining order and permanent injunction restraining and enjoining
the breaching Party from further violations of Paragraph 9.1.
ARTICLE 10. COMPLIANCE WITH LAWS
10.1 Each Party to this Agreement shall materially comply, at its own
expense, with all applicable laws, statutes, regulations, rules, ordinances,
orders, injunctions, writs, decrees or awards of any government or political
subdivision thereof, or any agency, authority, bureau, commission, department or
instrumentality thereof, or any court, tribunal, or arbitrator, in all
applicable, material respects in connection with this Agreement.
10.2 Each Party hereto agrees to comply, and to cause its employees to
comply, with all applicable requirements of law pertaining to its activities in
connection with this Agreement.
ARTICLE 11. LIMITATION OF LIABILITY
11.1 LIMITATION OF DAMAGES. Neither Party nor its affiliates will be
liable to the other Party for any special, indirect or consequential damages or
loss of use, lost revenues or lost profits arising out of this Agreement or the
performance or non-performance thereof, even if it or any of its affiliates has
been informed of the possibility of such damages.
11.2 TIME TO BRING CLAIMS. Either Party's failure to bring a claim
against the other Party within six (6) months after the date on which the
claiming Party knows or should have known of the existence of a potential claim
constitutes a waiver of such claim.
11.3 DISCLAIMER OF ANY IMPLIED WARRANTIES. Other than the warranties
expressly provided herein regarding the Specifications to be met by the Leased
Fibers, LESSOR does not warrant the Leased Fibers, or any other product,
equipment or service to be provided in connection with this Agreement, and
LESSOR HEREBY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE OR USE. LESSOR MAKES NO WARRANTY TO LESSEE OR ANY THIRD PERSON OR ENTITY
AS TO THE AVAILABILITY OR GRADE OF SERVICE TO BE PROVIDED BY OR OVER THE LEASED
FIBERS.
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<PAGE> 13
ARTICLE 12. INDEMNIFICATION
12.1 LESSEE INDEMNIFICATION OF LESSOR. LESSEE shall and hereby agrees
to indemnify and hold harmless and defend LESSOR and all employees, directors,
officers, shareholders, agents, representatives, counsel, affiliates, Parents,
successors and permitted assigns of LESSOR (the "Indemnified LESSOR Parties")
from and for any and all liabilities, damages, lawsuits, obligations, claims,
costs, expenses, assessments, and penalties, including reasonable attorneys'
fees and expenses and court costs, incurred by or asserted against any such
Indemnified LESSOR Parties by reason of, arising out of, or related to:
12.1.1 any work on or near the Leased Fibers or other portion
of the LESSEE System (including transit to or from any such work) which
work is undertaken by or at the direction or request of LESSEE or of
any of LESSEE's employees, agents, representatives or contractors
(other than work undertaken by or at the direction of LESSOR or any of
its employees, agents, representatives or contractors);
12.1.2 any use, nonuse, possession, occupation, operation,
maintenance, or management of the Leased Fibers by LESSEE or its
employees, agents, representatives, contractors, customers, licensees
or invitees, or for which LESSEE or any of its employees, agents,
representatives, contractors, customers, licensees or invitees is
directly or indirectly responsible;
12.1.3 any negligent or tortious or illegal act of LESSEE or
any of its employees, agents, representatives, contractors, customers,
licensees, or invitees;
12.1.4 any failure by LESSEE, whether knowing or unknowing, to
perform any of its material obligations under this Agreement;
12.1.5 any claim for or liability to any person using part or
all of the transmission capacity leased by LESSEE for transmission
purposes to the extent such claim, judgment, or liability is related to
such use of the leased transmission capacity and exceeds the relief
available to LESSEE under this Agreement;
12.1.6 LESSEE's use, misuse, abuse, misapplication or improper
use of the Leased Fibers, including without limitation claims for
defective transmission, actions for libel, slander, and actions for
infringement of copyright and/or unauthorized use of material; or
12.1.7 property damage, bodily injury or death caused by
LESSEE's acts or omissions related to this Agreement.
12.2 LESSOR INDEMNIFICATION OF LESSEE. LESSOR shall and hereby agrees
to indemnify and hold harmless and defend LESSEE and all employees, directors,
officers, shareholders, agents, representatives, counsel, affiliates, Parents,
successors and permitted assigns of LESSEE (the "Indemnified LESSEE Parties")
from and for any and all liabilities, damages, lawsuits, obligations, claims,
costs, expenses, assessments, and penalties, including reasonable attorneys'
fees and expenses
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<PAGE> 14
and court costs, incurred by or asserted against any such Indemnified LESSEE
Parties by reason of, arising out of, or related to:
12.2.1 any work on or near the Leased Fibers or other portion
of the LESSEE System (including transit to or from any such work) which
work is undertaken by or at the direction or request of LESSOR or of
any of LESSOR's employees, agents, representatives or contractors
(other than work undertaken by or at the direction of LESSEE or any of
its employees, agents, representatives or contractors);
12.2.2 any negligent or tortious or illegal act of LESSOR or
any of its employees, agents, representatives, contractors, customers,
licensees, or invitees;
12.2.3 any failure by LESSOR, whether knowing or unknowing, to
perform any of its material obligations under this Agreement; or
12.2.4 property damage, bodily injury or death caused by
LESSOR's acts or omissions related to this Agreement.
ARTICLE 13. INSURANCE
13.1 COVERAGE REQUIRED OF LESSEE. During the Term, LESSEE and all
contractors or subcontractors hired by LESSEE shall take out, pay the premiums
on, and continuously maintain insurance coverages described below. Promptly
after the Effective Date, LESSEE shall deliver to LESSOR, pursuant to the notice
provisions of this Agreement, certificates of insurance, reasonably acceptable
to LESSOR, evidencing at least the following levels of insurance coverage:
13.1.1 worker's compensation insurance coverage complying with
the law of the State of Georgia and employers liability insurance with
limits of not less than $500,000 per occurrence;
13.1.2 comprehensive general liability insurance coverage and
excess umbrella, if necessary, with broad form endorsement attached,
for a combined bodily injury and property damages limit of not less
than $2,000,000 per occurrence, which coverage shall include blanket
contractual, products liability, and completed operations liability
coverage; and
13.2 LESSOR shall be specifically named as an "Additional Insured" on
the liability policy.
13.3 NOTICE OF CANCELLATION. All such insurance coverage described in
this paragraph shall provide for not less than thirty (30) days' prior written
notice to LESSOR of cancellation or material change. LESSEE shall maintain all
such coverage in force at all times during the Term of this Agreement.
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<PAGE> 15
ARTICLE 14. FORCE MAJEURE
14.1 Neither Party shall be liable to the other for any delay,
impairment or failure to perform during any period in which such delay,
impairment or failure is (i) due to causes beyond its control and reasonable
anticipation, and (ii) without such Party's fault or negligence (hereinafter a
"Force Majeure"), including, but not limited to, fires, floods, epidemics,
third-party negligence, quarantine restrictions, war, labor disputes and freight
embargoes.
14.2 Each Party whose performance is impaired under this Section 14
shall exercise best efforts (including interconnection and cooperation with
other carriers) to mitigate the extent of such delay or failure, including those
arising from labor disputes or strikes.
ARTICLE 15. DISPUTE RESOLUTION
15.1 Any controversy or claim arising out of or relating to this
Agreement, including but not limited to a claim based on or arising from an
alleged tort, shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules. All statutes of
limitation which would otherwise be applicable in a judicial action brought by a
party shall apply to any arbitration and shall be given effect by the
arbitrator(s). The arbitrator(s) is authorized, in the exercise of his or her
discretion, to award costs and reasonable attorney's fees to the prevailing
party. The arbitrator shall have no authority to award punitive damages or any
other damages not measured by the prevailing party's actual damages, nor shall
any party seek punitive damages relating to any matter arising of this Agreement
in any other forum.
15.2 The parties acknowledge that this Agreement evidences a
transaction in interstate commerce. The United States Arbitration Act and
federal arbitration law shall govern the interpretation, enforcement and
proceedings pursuant to this arbitration clause. Judgment on the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof. By
signing and delivering this Agreement, each of the parties accepts for itself
and in respect to its property, generally and unconditionally, the jurisdiction
of any court having jurisdiction.
ARTICLE 16. DEFAULT
16.1 EVENTS OF DEFAULT. Events of default shall be and include: (i) the
failure of LESSEE to pay any installment of Rent within thirty (30) days of its
due date; (ii) the failure by either Party to comply in good faith with any or
all of the material terms and conditions of this Agreement and such defaulting
Party's failure to cure such default within thirty (30) days after written
notice thereof or, if such default cannot be cured within thirty (30) days, such
defaulting Party commencing curative actions within such thirty (30) days and
diligently and continuously pursuing such curative action to a conclusion; (iii)
any material misrepresentation or breach of any warranty or representation
contained in this Agreement; (iv) either Party ceasing to do business as a going
concern; or (v) either Party makes a general assignment for the benefit of, or
enters into any composition or arrangement with creditors; is unable to or
admits in writing its inability to pay its
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<PAGE> 16
debts as they become due; authorizes, applies for, or consents to the
appointment of trustee or liquidator of all or substantial part of its assets or
has proceedings seeking such appointment commenced against it which are not
terminated within sixty (60) days of such commencement; files a voluntary
petition under any bankruptcy or insolvency law or files a voluntary petition
under the reorganization or arrangement provisions of the laws of the United
States pertaining to bankruptcy or similar law of any jurisdiction or has
proceedings under any such law instituted against it which are not terminated
within sixty (60) days of such commencement; or has any substantial part of its
property become subject to any levy, seizure, assignment or sale for or by any
creditor or governmental agency without said levy, seizure, assignment or sale
being released, lifted, reversed or satisfied within ten (10) days thereafter.
16.2 REMEDIES UPON AN EVENT OF DEFAULT. Except as otherwise provided in
this Agreement, upon the occurrence of such an Event of Default, the
non-defaulting Party shall have all remedies available to it at law or equity or
under this Agreement. Unless otherwise stated herein, all such remedies shall be
cumulative and non-exclusive.
ARTICLE 17. TERMINATION OF AGREEMENT
17.1 This Agreement and the rights created hereby may be terminated:
17.1.1 upon the mutual written agreement of both Parties;
17.1.2 by either Party for any default of the other Party
hereunder; or
17.1.3 as expressly provided herein.
ARTICLE 18. MISCELLANEOUS
18.1 ASSIGNMENT. Either party may assign or delegate its obligations
hereunder without the prior written consent of the other party, but upon
reasonable written notice to the other party; provided, however, such assignment
shall not relieve the assigning party of any of its liabilities. This Agreement
shall be binding upon and inure to the benefit of the parties their successors
and their assigns.
18.2 MODIFICATION. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by both Parties.
18.3 LIMITATION OF BENEFITS. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective successors
and permitted assigns. The Parties do not intend that this Agreement benefit any
persons or entities other than the Parties hereto. It is the explicit intention
of the Parties
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<PAGE> 17
hereto that no person or entity other than the Parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the Parties hereto, and that the covenants, undertakings, and agreements
set forth in this Agreement shall be enforceable only by, the Parties hereto or
their respective successors or permitted assigns.
18.4 NOTICES. Any notice required or permitted to be given hereunder
shall be (a) in writing, (b) effective on the first business day following the
date of receipt, and (c) delivered by one of the following means: (i) by
personal delivery; (ii) by prepaid, overnight package delivery or courier
service; (iii) by the United States Postal Service, first class, certified mail,
return receipt requested, postage prepaid; or (iv) by prepaid telecopier, telex,
or other similar means of electronic communication (followed by confirmation on
the same or following day by overnight delivery or by mail as aforesaid). All
notices given under this Agreement shall be addressed, in the case of LESSOR, as
follows:
Chad S. Wachter
VP and General Counsel
KNOLOGY Holdings, Inc.
1241 O.G. Skinner Drive
West Point, GA 31833
and, in the case of LESSEE, as follows:
William H. Scott, III
President
ITC Service Company
1239 O. G. Skinner Drive
West Point, GA 31833
with a copy to:
Kimberley E. Thompson
Senior Vice President and General Counsel
ITC Service Company
4717 Dolphin Lane
Alexandria, VA 22309
or to such other addresses or telecopier numbers of which the Parties have been
advised in writing by any of the above-described means. Personal delivery to a
Party or to any officer, partner, agent, or employee of such Party at its
address herein shall constitute receipt. The following shall also constitute
receipt: (i) a Party's rejection or other refusal to accept notice, and (ii) the
inability to deliver to a Party because of a changed address or telecopier
number of which no notice has been received by the other Party. Notwithstanding
the foregoing, no notice of change of address or telecopier number shall be
effective until ten (10) days after the date of receipt thereof. This paragraph
shall not be construed in any way to affect or impair any waiver of notice or
demand herein provided.
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18.5 INDEPENDENT CONTRACTORS. In all matters pertaining to this
Agreement, the relationship of LESSOR and LESSEE shall be that of independent
contractors, and neither LESSOR nor LESSEE shall make any representations or
warranties that their relationship is other than that of independent
contractors. This Agreement is not intended to create nor shall it be construed
to create any partnership, joint venture, employment, franchise, or agency
relationship between LESSOR and LESSEE; and no Party hereto shall be liable for
the payment or performance of any debts, obligations, or liabilities of the
other Party, unless expressly assumed in writing herein or otherwise. Each Party
retains full control over the employment, direction, compensation and discharge
of its employees, agents and representatives and will be solely responsible for
all compensation of such employees, agents and representatives, including but
not limited to any applicable social security, insurance, tax withholding and
worker's compensation responsibilities.
18.6 NON-EXERCISE OF RIGHT NOT WAIVER. No failure or delay on the part
of either Party hereto in exercising any right, power or privilege hereunder and
no course of dealing between the Parties shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
18.7 SURVIVAL. It is the express intention and agreement of the Parties
hereto that all covenants, agreements, statements, representations, warranties
and indemnities made in this Agreement shall survive the execution and delivery
of this Agreement. It is the express intention and agreement of the Parties that
the obligations of each Party to protect the other Party's Confidential
Information, and the obligations to indemnify the other Party and other persons
and entities, pursuant to the terms and conditions of this Agreement, shall
survive the execution, delivery and termination (whether by expiration, default,
extinguishment or otherwise) of this Agreement.
18.8 HEADINGS. Article headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
18.9 INCORPORATION OF EXHIBITS AND AMENDMENTS THERETO. The Exhibits
referenced in this Agreement, as it may be amended from time to time in writings
executed by both Parties, shall be deemed an integral part hereof to the same
extent as if written at length herein.
18.10 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement and each of its provisions shall be governed by
the laws of the State of Georgia.
18.11 COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of or on behalf of each Party appear on each
counterpart; but it shall be sufficient that the signature of or on behalf of
each Party appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than any counterpart or
counterparts contain signatures of both Parties.
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<PAGE> 19
18.12 ENTIRE AGREEMENT; NO ORAL MODIFICATIONS. This Agreement, together
with all Exhibits attached, constitutes the entire agreement between the parties
with respect to the transaction contemplated herein, and supersedes all prior
oral or written agreements commitments or understandings with respect to the
matters provided for herein. This Agreement shall not be amended or modified
except by a writing executed by both Parties.
18.13 SEVERABILITY. Any provision of this Agreement held or determined
by a court (or other legal authority) of competent jurisdiction to be illegal,
invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct
and independent, and shall be ineffective to the extent of such holding or
determination without (i) invalidating the remaining provisions of this
Agreement in that jurisdiction or (ii) affecting the legality, validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the undersigned Parties have caused this Agreement to be
duly executed on their behalf, as of the day and year first hereinabove set
forth.
SIGNED AND DELIVERED
ITC SERVICE COMPANY KNOLOGY OF COLUMBUS, INC.
By: By:
-------------------------- --------------------------
Its: Name:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
Address: Address:
-------------------------- --------------------------
-------------------------- --------------------------
-------------------------- --------------------------
TEL: TEL:
-------------------------- --------------------------
FAX: FAX:
-------------------------- --------------------------
Contact Person: Contact Person:
-------------- --------------
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<PAGE> 20
EXHIBIT A
LEASED FIBER ROUTE
ROUTE
PROPOSED CIRCUIT
ORIGINATION POINT TERMINATION POINT LENGTH SERVICE DATE
- ----------------- ---------------- ------ ----------------
97 MILES
<PAGE> 21
EXHIBIT B
SPECIFICATIONS
FIBER CABLE SPECIFICATIONS. The outside plant cable will contain single
mode, dual window fibers.
FIBER OPTIC SPECIFICATIONS. The Fibers are single mode and conform to
all the following minimum specifications:
Operating Wavelength 1310 NM 1550 NM
Maximum Attenuation .40dB/KM .30 dB/KM
Maximum Dispersion 3.5 PS/NM-KM 4 PS/NM-KM
Core Diameter (Typical) 8.7 microns
Core Noncircularity (Max) 10%
Cladding Diameter 125 microns
3 um
Cladding Noncircularity 2%
Core Cladding Offset 1.0 micron
Proof Test KPSI (100 KPSI
for OPGW)
Fiber Bandwidth Limitation None
Cut Off Wavelength 1100-1310 NM
Note: NM = nanometers; dB = decibels; KM = kilometers; PS = picoseconds
um = microns; KPSI = Kilopounds per square inch
SPLICE SPECIFICATIONS. LESSOR will utilize "Fusion Splicing" and meet
an average of 0.15 dB loss per splice with a maximum splice loss not to exceed
0.3 dB on any individual splice. LESSOR will record the actual dB loss reading
as displayed on the splicer or Optical Time Domain Reflectometer ("OTDR") as the
splice is completed. LESSOR will provide the results to LESSEE.
END TO END ANALYSIS. LESSOR will measure the maximum End to End Optical
Loss for all Fibers on the Route. This will be measured by a laboratory
calibrated optical power meter utilizing a stabilized single mode light source.
LESSOR will provide the results to LESSEE. LESSOR will make the End to End OTDR
tracings at 1300 NM and 1500 NM for each Fiber after all the splicing has been
completed. This tracing will be provided to LESSEE.
<PAGE> 1
*** Confidential treatment has been requested for portions of this agreement.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
SERVICES AGREEMENT
This Services Agreement (this "Agreement") is made and entered into as
of the 2nd day of November, 1999, by and between KNOLOGY, Inc., a Delaware
corporation ("KNOLOGY"), and ITC Service Company, a Georgia corporation ("ITC").
RECITALS
WHEREAS, the parties desire to obtain services from each other on the
terms and conditions set forth in this Agreement.
NOW THEREFORE, for and in consideration of the covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. SERVICES. KNOLOGY agrees to provide ITC with certain services, as
described on Exhibit "A". In consideration for the provision of these services
by KNOLOGY, ITC agrees to provide KNOLOGY with certain services, as described in
Exhibit "A", and agrees to pay KNOLOGY the amount of [*****] per month. KNOLOGY
will pay ITC to store documents at a rate of [*****] per foot.
2. TERM. This Agreement is effective as of the date set forth above.
ITC Service Company may terminate this Agreement upon giving thirty (30) days
written notice to KNOLOGY, Inc.
3. CONFIDENTIALITY. KNOLOGY and ITC recognize they will come into
possession of confidential or proprietary information of the other company,
including without limitation financial information, methods of operation,
marketing information and plans, technical data, and other similar information
(collectively, the "Confidential Information"). Accordingly, KNOLOGY and ITC
agree that they will treat as confidential and will not, directly or indirectly,
use or disclose any Confidential Information during the term of this Agreement
and for a period of three years thereafter.
4. RELATIONSHIP OF THE PARTIES. In performing its obligations and
services hereunder, each party shall act at all times as an independent
contractor, and nothing
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contained herein shall be deemed or construed to create any partnership or joint
venture between KNOLOGY and ITC.
5. MISCELLANEOUS. This Agreement contains the entire agreement between
the parties with respect to the subject matter herein. No modifications or
amendments of this Agreement shall be binding upon either party unless set forth
in writing duly executed by each party. If any term or provision of this
Agreement shall be found by a court of competent jurisdiction to be illegal,
invalid or otherwise unenforceable, the same shall not invalidate the whole of
this Agreement, but such term or provision shall be deemed modified to the
extent necessary in the court's opinion to render such term or provision
enforceable, and the rights and obligations of the parties shall be construed
and enforced accordingly, preserving to the fullest permissible extent the
intent and agreements of the parties set forth herein. This Agreement and the
obligations of the parties hereunder shall be interpreted, construed and
enforced in accordance with the internal laws of the state of Georgia. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
KNOLOGY, INC.
By: /s/ Felix Buccucci
---------------------------------
Name:
-------------------------------
Title: VP -- Business Development
------------------------------
ITC SERVICE COMPANY
By: /s/ William H. Scott, III
---------------------------------
Name:
-------------------------------
Title: President and COO
------------------------------
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EXHIBIT "A"
SERVICES PROVIDED BY KNOLOGY
Mail support, computer and technology support, payroll services and
administrative support for benefit programs.
SERVICES PROVIDED BY ITC
Storage facilities for documents and administrative support for
conference facilities.
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<PAGE> 1
EXHIBIT 10.64
*** Confidential treatment has been requested for portions of this agreement.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
SUPPORT AGREEMENT
Interstate Telephone Company, Inc., a Georgia Corporation, located at 910 First
Avenue, P.O. Box 510, West Point, Georgia 31833 (hereinafter referred to as
"ITC") by signature agrees to grant and
ITC Service Company
1239 O.G. Skinner Drive
West Point, GA 31833
(Hereinafter referred to as the "Service Co") agrees to accept on the following
terms and conditions, support and miscellaneous services detailed below. ITC
agrees to accept on the following terms and conditions, the miscellaneous
services provided by Service Co.
1. INCLUSIONS FOR SERVICES PROVIDED TO SERVICE CO BY ITC:
A. Provide support for mail/postage services - External and
Internal Mail
B. Support & maintenance on personal computers, network, video
conferencing equipment, board room computer and presentation
equipment, accounting and fixed asset software, tax, network
and desktop software.
C. Support for payroll & management of employment related
benefits programs
2. SUPPORT FEES FOR SERVICES PROVIDED BY ITC TO SERVICE CO:
1A. Mail & postage services - [*****] per month plus actual cost
of postage
1B. IT Support - [*****] per month per attached schedule. A one
time license fee of [*****] to compensate ITC for capital cost
of hardware and software
1C. Payroll & HR benefits management - [*****] per month plus
actual cost of any specific payroll or benefit fees
<PAGE> 2
3. INCLUSIONS FOR SERVICES PROVIDED TO ITC BY SERVICE CO:
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
A. Scheduling, collection and billing for cabin utilization
B. Storage of old financial records and equipment at facilities
owned by Service Co
4. SUPPORT FEES FOR SERVICES & FACILITIES PROVIDED BY SERVICE CO TO ITC:
3A. Scheduling & management of cabin utilization - [*****] per
month
3B. Storage fee will be based on square footage used x [*****] per
square foot. To be billed monthly.
5. OTHER FEES:
A. Service Co will be billed for telephone and cable services per
usage with appropriate local companies.
B. Service Co will be billed extra software development fees at
[*****] per hr for development of new lotus notes applications
or other software specifically requested by the company for
their use.
C. Service Co will be billed for all software upgrades and new
software ordered and utilized specifically for them.
D. Service Co will be billed for all personal computers and
hardware ordered and utilized specifically for them.
E. Service Co will be billed for concession lines for 10 of their
current employees. No new concession lines will be given to
employees of Service Co.
6. EFFECTIVE DATE AND TERMINATION:
This agreement is effective as of the date accepted by both parties
below. Prices are subject to change January 1st of each year, beginning
with January 2002. The Agreement is automatically renewed January 1st
of each year, if no written notice of termination has been given.
Service Co and ITC may terminate receiving services within this
Agreement upon thirty (30) days written notice. Termination of part of
the services will not terminate this Agreement on the other services.
Both companies agree to continue providing services until termination
by the other party.
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Accepted by: Accepted by:
Interstate Telephone Company ITC Service Company
Signature: /s/ Felix Boccucci Signature: /s/ William H. Scott III
------------------------- -------------------------
Typed Name: Typed Name:
------------------------ ------------------------
Title: Vice President Title: President and COO
------------------------- -------------------------
Date: 11/2/99 Date: 10/29/99
------------------------- -------------------------
