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LEASE

Lease Agreement

LEASE | Document Parties: KNOLOGY INC You are currently viewing:
This Lease Agreement involves

KNOLOGY INC

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Title: LEASE
Governing Law: Georgia     Date: 3/16/2009
Industry: Broadcasting and Cable TV     Sector: Services

LEASE, Parties: knology inc
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CONFIDENTIAL TREATMENT REQUESTED

[*** Designates portions of this document that have been omitted pursuant to

a request for confidential treatment filed separately with the Commission]

Exhibit 10.44

STATE OF GEORGIA

COUNTY OF MUSCOGEE

LEASE

THIS LEASE is made and entered into this 15th day of December, 2008, by and between D. L. Jordan, as Landlord, and Knology, as 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 Tenant and designated as Additional Rent below.

(b) “Basic Rent” shall mean the monthly rental specified and provided for in this Lease.

(c) “Building” shall mean the building and similar structures located on the land which is part of the Premises on the Commencement Date and at any time thereafter throughout the term of this Lease, excluding all other Improvements and excluding the land which is part of the Premises.

(d) “Commencement Date” shall mean the date on which the term of this Lease commences.

(e) “Improvements” shall mean and shall include any buildings, structures, sheds, driveways, parking areas, paved areas, and fences located on the land which is part of the Premises on the Commencement Date, any fixtures, equipment and systems located in any such buildings, structures or sheds on the Commencement Date and any additions, alterations, replacements and substitutions thereto made after the Commencement Date. The term “Improvements” does not include the land which constitutes part of the Premises.

(f) “Landlord” shall mean the Landlord named in this Lease, together with Landlord’s heirs, legal representatives, successors and assigns.

(g) “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.

(h) “Lease” shall mean this lease, together with any and all exhibits, special stipulations and attachments which may be part of this lease.

(i) “Lease Year” shall mean the twelve (12) month period beginning on the Commencement Date and ending at midnight of the day before the first anniversary of the Commencement Date, the twelve (12) month period commencing on the first anniversary of the Commencement Date and ending at midnight of the day before the second anniversary of the Commencement Date, and any similar twelve month periods occurring throughout the term of this Lease.

(j) “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”.

(k) “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.

(l) “Premises” shall mean Augusta Call Center, Augusta, Georgia per approved plans and specifications.

 

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CONFIDENTIAL TREATMENT REQUESTED

[*** Designates portions of this document that have been omitted pursuant to

a request for confidential treatment filed separately with the Commission]

(m) “Tenant” shall mean the Tenant named in this Lease, jointly and severally if more than one is named, together with Tenant’s heirs, legal representatives, successors and permitted assigns, jointly and severally if more than one.

2. Premises . In consideration of the covenants and agreements to be performed by Tenant and for the rent and upon the terms and conditions stated, Landlord lets and leases the Premises to Tenant. Unless otherwise expressly provided herein, Tenant takes, and accepts from Landlord, the Premises, in their present condition and as suited for the use intended by Tenant. No easement or other right to light or air, and no right to the subsurface of the land, is leased with or including in the Premises.

3. Term . The term of this Lease shall commence on October 1, 2009, and shall terminate at midnight on September 30, 2019, unless terminated earlier as provided herein (the “Lease Term”). Unless otherwise expressly provided herein, Tenant shall have no option or right to renew this Lease. (Start time to be adjusted when construction is completed.)

4. Rent . (a) Tenant shall pay to Landlord, at Landlord’s address for notice hereinafter set forth or at such other place as Landlord may specify, without any right of set-off or deduction and without any prior notice of demand, the Basic Rent of $[***] per year in equal monthly installments of $[***] for each month during the term of this Lease. 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 Lease Term. 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. (See specification stipulations.)

(b) As a further inducement for Landlord to enter into this Lease, Tenant shall also pay to Landlord, as Additional Rent, the following: Property taxes and insurance on building annually $[***] advance rents for the 10-year basic lease period — one time pay.

(c) It is acknowledged by the parties hereto that the late payment by Tenant to Landlord of Basic Rent, Additional Rent, or any other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease the exact amount of which would be extremely difficult and impractical to ascertain. Such costs include, but are not limited to, processing, clerical and accounting charges, lost interest, and late charges which may be imposed by Landlord by the terms of any mortgage encumbering Premises. Therefore, in the event Tenant should fail to pay any installment of Basic Rent, Additional Rent, or any sum due hereunder within ten (10) days after the due date thereof, Tenant shall pay to Landlord as an additional monthly charge a late fee each month equal to ten (10%) percent of each such installment of Basic Rent, Additional Rent, or other sum. The late fee shall be due for each month that any installment of Base Rent, Additional Rent, or any sum hereunder remains unpaid. In addition, Tenant shall pay to Landlord thirty dollars ($30.00) for each check presented to Landlord in payment of any obligations hereunder which is not paid by the bank upon which such check is drawn.

5. Use . Tenant shall use the Premises only for the purpose of any lawful purpose, and for no other purposes. In no event shall Tenant use the Premises for any illegal purpose, in violation of any Law, or in any manner which constitutes a public or private nuisance. Tenant shall not do, bring or keep anything on or about the Premises that would increase the rates charged Landlord for, or cause cancellation of, Landlord’s insurance covering the Premises. Landlord does not make, and has not made, any representation regarding the zoning of the Premises. Tenant has determined that the use contemplated by Tenant conform to and comply with zoning and all other Laws and represents to Landlord that they do. Tenant shall use the Premises and keep them occupied at all times during the term of this Lease, and Tenant shall not abandon, vacate or cease to use the Premises during the term of this Lease.

6. Utilities . (a) Except as may be set forth below, Tenant shall make all arrangements for, and shall pay when due all charges for, all utilities and services furnished to the Premises or used by Tenant, including but not limited to electricity, gas, fuel, heat, water, sewer, telephone, power, sanitary services and trash collection. Tenant shall also make all arrangements for, and shall pay when due all charges for, connection of any such utility or service to the Premises.

 

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(b) If water is provided by Landlord, Tenant shall reimburse Landlord for water usage in the amount of $ N/A per month, in advance, with such payment to be made with the payment of the Basic Rent. In the event that Landlord incurs excess water costs as a result of Tenant’s failure to maintain all sinks, toilets and other equipment related to water usage in good working order and repair, Tenant shall reimburse Landlord, upon demand, the amount reasonably determined by Landlord in Landlord’s sole discretion, to represent excess water costs, based upon a three (3) months average water use.

7. Repairs by Landlord . Landlord 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 damage thereto due to the acts or omissions of Tenant, its customers, suppliers, agents, employees or invitees, the repair or replacement of damages caused as a result thereof being the responsibility of Tenant. Landlord shall commence required repairs as soon as reasonable practicable after receiving notice from Tenant thereof. This Paragraph shall not apply in case of damage or destruction by fire or other casualty or condemnation or eminent domain, in which events the obligations of Landlord shall be controlled by the relevant provisions found elsewhere in this Lease. Except as provided in this Paragraph, Landlord shall not be obligated to make repairs, replacements or improvements of any kind upon the Premises, or to any equipment, merchandise, stock in trade, facilities or fixtures therein, all of which shall be Tenant’s responsibility, but Tenant shall give Landlord prompt notice of any accident, casualty, damage or other similar occurrence in or to the Premises of which Tenant has knowledge.

8. Repairs by Tenant . Tenant shall at all times keep the Premises, window and window frames and moldings, glass, store fronts, doors, door openers, fixtures, equipment and appurtenances thereof (including lighting, heating, electrical, plumbing, toilets, ventilating and air conditioning fixtures and systems and other mechanical equipment and appurtenances) and all parts of the Premises not required herein to be maintained by Landlord in good order, condition and repair and clean, orderly, sanitary and safe (including but not limited to doing such things as are necessary to cause the Premises to comply with applicable laws, ordinances, rules, regulations and orders of governmental and public bodies and agencies relating to Tenant’s use or occupancy of the Premises). If replacement of equipment, fixtures and appurtenances thereto are necessary, Tenant shall replace the same with equipment, fixtures and appurtenances of the same quality, and repair all damages done in or by such replacement. If Tenant fails to perform its obligations hereunder, Landlord without notice may, but shall not be obligated to, perform Tenant’s obligations or perform work resulting from Tenant’s acts, actions or omissions and add the costs of the same to the next installment of Basic Rent due hereunder.

9. Alterations . Tenant shall not make or cause to be made any alterations, additions or improvements in or to the Premises without in each instance the prior written consent of Landlord. All permitted alterations, additions and improvements shall be made in compliance with applicable Laws, at Tenant’s sole cost and expense, and shall become Landlord’s property and part of the Premises when made. Landlord shall not give its consent to any alteration, addition or improvement unless: (1) Tenant provides evidence or assurances satisfactory to Landlord of Tenant’s financial ability to pay for them in full and provides lien waiver(s) and other evidence satisfactory to Landlord that no lien will be claimed against the Premises; and (ii) Landlord, in its reasonable judgment, is satisfied that the alteration, addition or improvement will not reduce the fair market value of the Premises and will neither impair the desirability of the Premises for leasing to other tenants nor restrict the class of potential tenants for the Premises. IN NO EVENT SHALL TENANT RE-KEY OR CHANGE ANY EXTERIOR OR INTERIOR DOOR LOCKS IN OR ABOUT THE PREMISES.

10. Removal by Tenant . All repairs, alterations, additions and improvements made by Tenant shall be deemed to be attached to the leasehold and to have become the property of Landlord upon such attachment, and, upon the expiration or sooner termination of this Lease, Tenant shall not remove any of such alterations, additions and improvements. Provided, however, that Landlord may designate by written notice to Tenant those alterations, decorations, additions and improvements which shall be removed by Tenant at the expiration or termination of this Lease and Tenant shall promptly remove the same and repair any damage to the Premises caused by such removal.

 

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11. Liens . Tenant shall not create or permit to be created any lien, encumbrance or charge against the Premises or any part of the Premises. If any lien, encumbrance or charge is filed against any part of the Premises, Tenant shall cause the same to be discharged by payment, satisfaction or posting of bond within ten (10) days after the date filed. If Tenant fails to cause any lien, encumbrance or charge to be discharged within the permitted time, Landlord may cause it to be discharged and may make any payment which Landlord in its sole judgment considers necessary in order to do so. If Landlord makes any such payment, all amounts paid by Landlord shall bear interest at the rate of eighteen percent (18%) per annum from the date of payment by Landlord and shall be payable by Tenant to Landlord upon demand. The liens, encumbrances and charges covered by this Paragraph include, without limitation, liens for federal taxes, state taxes and assessments, county taxes and assessments, local taxes and assessments, Mortgages, security interests and liens filed by mechanics, laborers, material men, architects, surveyors, attorneys or engineers for work, labor, materials or services done or furnished (or alleged to have been done or furnished) with respect to the Premises, excluding, however, the lien for Taxes and Assessments and excluding liens, encumbrances or charges arising solely because of Landlord’s action or failure to take action.

12. Damage and Destruction . If the Building is damaged or destroyed by fire, smoke, tornado, ice, wind, lightning, flood, water, explosion, riot, or other casualty, Tenant shall notify Landlord immediately and the following provisions shall determine the effect of the damage or destruction on this Lease.

(a) If the Building 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 Landlord and Tenant shall account for Basic Rent, Additional Rent and other amounts payable by Tenant as of that date.

(b) If any part, but less than all, of the Building is damaged or destroyed, Landlord, within sixty (60) days after such damage or destruction, at Landlord’s election, shall either (i) agree to restore or rebuild or (ii) terminate this Lease by giving Tenant notice of termination. If Landlord agrees to restore or rebuild, Landlord shall complete the restoration or rebuilding within one hundred eighty (180) days after Landlord’s election is made, and the Basic Rent shall be abated in the same proportion as usable space in the Building has been rendered unusable by reason of such damage or destruction. The abatement of Basic Rent shall be effective from the date of the damage or destruction until completion of the restoration or rebuilding by Landlord, at which time the Basic Rent shall automatically be reinstated at the amount specified in this Lease. If Landlord terminates this Lease, the term of this Lease shall expire on the date ten (10) days after the date Landlord gives notice of termination to Tenant, with the same effect as if such date were stated as the time for termination of the Lease term, and Landlord and Tenant shall account for Basic Rent, Additional Rent and other amounts payable by Tenant as of that date.

(c) Notwithstanding anything above to the contrary, Landlord shall have no obligation to restore or rebuild.

(d) Also notwithstanding anything above to the contrary, the time within which Landlord 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 Landlord.

13. 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 Tenant cannot use the remainder of the Premises for substantially the same purpose as immediately prior to condemnation, Tenant may terminate this Lease on the date when possession is taken by the condemning authority, by giving Landlord notice of intent to terminate within sixty (60) days after Landlord gives Tenant 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 of the Lease term, and Landlord and

 

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Tenant shall account for Basic Rent, Additional Rent and other amounts payable by Tenant 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 Building 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 Landlord’s right to compensation for any condemnation. Landlord shall be entitled to the full award or proceeds payable with respect to the Premises by reason of any condemnation, and neither Landlord nor Tenant 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 condemnation or exercise of the 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 or all of the Premises.

14. Indemnity . During the term of this Lease, Tenant shall pay, and shall protect, indemnify and save harmless Landlord from and against, all liabilities, damages, costs, expenses (including all attorney’s fees and expenses of Landlord), 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, street or ways, or (y) in any manner arising out of or connected with Tenant’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; (ii) violation of any agreement, representation, warranty, provision, term or condition of this Lease by Tenant; and (iii) violation of any Law affecting the Premises or the occupancy or use thereof.

Notwithstanding the foregoing, Tenant shall not be required to pay, protect or indemnify and save harmless Landlord from liabilities, damages, costs, and expenses which are the-result of Landlord’s proven acts of affirmative negligence.

15. Insurance . (a) Tenant 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 Landlord (1) commercial general liability insurance applicable to the Premises with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 general aggregate 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 Tenant’s property on the Premises and any alterations, remodeling or improvements made or installed by Tenant 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, earthquake, flood, riot, theft, vandalism, and malicious mischief, sprinkler leakage, and explosion, and (4) such other insurance on the Improvements and in such amounts as may from time to time be reasonably required by Landlord 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) except for commercial general liability insurance, name Landlord and Tenant as insureds, as their respective interest may appear, (2) provide that all insurance proceeds shall be adjusted with Landlord and Tenant jointly and shall, except in the case of comprehensive general liability insurance, be payable to Landlord and Tenant, as their respective interest may appear, (3) provide that the policy cannot be (i) cancelled as to Landlord, (ii) lapse if not renewed for any reason, or (iii) changed in coverage, except after the insurer gives Landlord fifteen (15) days written notice of cancellation, non-renewal, or change in coverage (4) shall state that notice of any claim against Landlord shall be deemed to have occurred only when an officer of Landlord has received actual notice, and has actual knowledge of the claim, and (5) not be subject to invalidation as to Landlord by reason of any act or omission of Tenant.

(c) Immediately upon the issuance of the policy or policies required under this Paragraph, Tenant shall deliver a duplicate original policy to Landlord, together with evidence satisfactory to Landlord 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, Tenant shall pay the premium for renewal for a period of not less than one year and deliver to Landlord a renewal policy or endorsement evidencing the renewal, together with evidence satisfactory to Landlord that the renewal premium has been paid.

 

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(d) Each such insurance policy shall contain a provision permitting Tenant to waive all rights of recovery by way of subrogation, for Tenant and Tenant’s insurer, substantially in the following form: 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 to the property covered by this policy. Tenant waives, during the term of this Lease, any and all rights of recovery and claims against Landlord, Landlord’s officers, employees and agents, to the full extent that indemnification is due under the insurance coverage required by this Paragraph.

16. Mortgages and Mortgagees . The following provides for the effect of Mortgages on this Lease and for the rights of Mortgagees.

(a) At Landlord’s election, this Lease shall be subordinate to any and all Mortgages now or hereafter encumbering the Premises or any part of the Premises. 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, Tenant shall execute promptly such instruments or certificates as may be reasonably required to further evidence the intent of this Subparagraph, whether the requirement is that of Landlord or any other party in interest, including, without limitation, any Mortgagee. Landlord will use its best efforts to obtain a non-disturbance agreement from any such Mortgagee in favor of Tenant.

(b) Within three (3) day after request by Landlord, Tenant shall execute and deliver to Landlord an 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 Landlord’s interest under this Lease, in which Tenant 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 Tenant’s certificate, (ii) that Tenant has no defense, claims, counterclaims or rights of set-off against the enforcement of this Lease, or, if Tenant claims any, that they are all specifically described, as claimed by Tenant, in Tenant’s certificate; and (iii) the respective dates to which Basic Rent, Additional Rent and all other amounts due under this Lease have been paid. Tenant’s certificate shall also include such other information as may be reasonably required by Landlord or by any Mortgagee, prospective Mortgagee, purchaser or prospective purchaser of the Premises or assignee or prospective assignee of Landlord’s interest under this Lease.

(c) Notwithstanding that this Lease is expressly subject and subordinate to any Mort-gages, any Mortgagee may sell the Premises in the manner provided


 
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