Exhibit 10.18
CONSENT FOR ASSIGNMENT OF INTEREST
relating to the Revised and Restated
Fiber Optics Facilities and Services
Agreement
THIS CONSENT is made as of February 20, 1997 among SCANA
COMMUNICATIONS, INC., a Mississippi corporation ("SCANA"), ITC HOLDING
COMPANY, INC., a Florida corporation, ("ITC"), GULF STATES FIBERNET, a Georgia
general partnership ("GSF"), GULF STATES TRANSMISSION SYSTEMS, INC., an
Arkansas corporation ("GSTS") and SOUTHERN DEVELOPMENT AND INVESTMENT
GROUP, INC., a Georgia corporation ("Southern Development").
WHEREAS, SCANA (formerly known as "MPX Systems, Inc.") and Southern
Development, on behalf of and as agent for Alabama Power Company, Georgia Power
Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and
Power Company, Southern Electric Generating Company and Southern Company
Services, Inc. (collectively, "SES") are parties to that certain Revised and
Restated Fiber Optic Facilities and Services Agreement dated June 9, 1995 (the
"Agreement");
WHEREAS, SCANA and GSF are parties to that certain Partial Assignment and
Assumption of the Agreement, dated as of July 25, 1995 (the "First Assignment")
wherein SCANA assigned its rights to the SES routes (as defined in the
Agreement), together with all rights and obligations of SCANA relating to those
routes to GSF, including SCANA's rights as an Exclusive User of those routes;
WHEREAS, Southern Development consented to the First Assignment, thereby
waiving its Rights of First Offer/First Refusal as defined in Section 32.2 of
the Agreement;
WHEREAS, SCANA now desires to assign to ITC its partnership interests in
GSF, as well as its fiber optic network assets, including, without limitation,
its ownership interest in and all rights to use all cable and equipment under
the Agreement;
WHEREAS, GSF now desires to assign to GSTS all of GSF's assets and
liabilities, including, without limitation, all rights, duties, and obligations
under the Agreement obtained from the First Assignment, provided that GSTS
assumes and agrees to pay, perform and discharge all of GSF's duties and
obligations under the Agreement; and
WHEREAS, Southern Development is willing to permit the aforementioned
assignments by SCANA to ITC and GSF to GSTS, thereby waiving its Rights of First
Offer/First Refusal as defined in Section 32.2 of the Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. All capitalized terms not otherwise defined herein shall have the
meanings given such terms in the Agreement.
2. Southern Development hereby consents to the following assignments and
waives its rights under the provisions of Section 32.2 of the Agreement to the
extent applicable to the Assignments:
(i) SCANA shall assign and transfer to ITC all partnership
interests in GSF and all right, title and interest to all SCANA fiber
optic network assets, including without limitation, its ownership
interest to and all rights to the use of fiber optic cable and
equipment governed by the Agreement; and
(ii) GSF shall assign and transfer to GSTS all GSF's assets and
liabilities, including, without limitation, all of its rights, duties,
and obligations under the Agreement, (collectively, the
"Assignments").
3. Southern Development's consent to the Assignments is subject to the
following additional terms and conditions:
(i) SCANA shall not be relieved of any of its obligations or
liabilities under the Agreement in relation to SES; and
(ii) ITC and GSTS shall execute such other documents as Southern
Development may reasonably request from time to time to obtain full
benefit of the Assignments and for ITC and GSTS to assume full
responsibility for all obligations and rights under the Agreement.
4. Unless otherwise provided in this Consent, all notices, requests,
demands and other communications in connection with this Consent must be in
writing and may be mailed, or delivered via facsimile or by courier to the
parties at the addresses shown on the signature pages below (or at such other
addresses as will be given in writing by the parties to one another) and will be
effective when delivered.
5. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
6. Except as hereby modified, amended or supplemented, the Agreement
shall remain in full force and effect, and any reference hereafter made by any
party hereto to the Agreement shall be deemed to refer to the same as hereby
amended regardless of whether specific reference is made hereto.
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7. The validity, interpretation and performance of this Consent and each
of its provisions will be governed by the laws of Georgia.
SIGNED, SEALED AND DELIVERED.
SCANA COMMUNICATIONS, INC.,
formerly MPX Systems Inc.
By: /s/ K.B. Xxxxx
-----------------------------
Name: K.B. Xxxxx
----------------------
Title: VP & CFO
---------------------
Address:
TEL:
FAX:
Contact person:
ITC HOLDING COMPANY, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
----------------------
Title: Vice President
---------------------
Address:
TEL.
FAX:
Contact person:
(Signatures continued on the following page)
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GULF STATES FIBERNET
By: Gulf States Transmission Systems, Inc., general partner
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: CFO
------------------------
Address:
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
TEL: 000 000-0000
FAX: 000 000-0000
Contact person: Xxxx Xxxxxxx
GULF STATES TRANSMISSION SYSTEMS, INC.
By:/s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
------------------------
Title: CFO
------------------------
Address:
TEL:
FAX:
Contact person:
(Signatures continued on the following page)
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SOUTHERN DEVELOPMENT AND INVESTMENT
GROUP, INC., on its own behalf and as agent
for the other members of the Southern Electric
System
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & Gen'l Manager
------------------------------
Address:
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
TEL: 000 000-0000
FAX: 000 000-0000
Contact person: Xxxxxx Xxxxxx
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