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