Exhibit 10.31
AMENDMENT NO. 4 TO
AGREEMENT FOR THE PROVISION OF
FIBER OPTIC FACILITIES AND SERVICES
BETWEEN
ALABAMA POWER COMPANY AND
SOUTHERN INTEREXCHANGE FACILITIES, INC.
APC CONTRACT NUMBER SI001
THIS AMENDMENT, effective as of January 1, 1994, is to the Agreement for
the Provision of Fiber Optic Facilities and Services between Alabama Power
Company and Southern Interexchange Facilities, Inc., APC Contract Number SI00l,
dated as of March 29, 1990 and amended on March 29, 1990, March 22, 1991,
December 1, 1991 and September 23, 1992 (the "Agreement").
W I T N E S S E T H:
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WHEREAS, on or about December 30, 1993 Southern Interexchange Facilities,
Inc. ("SI"), a party to the Agreement, will merge with its affiliate, Delta
Communications, Inc. following which merger, Delta Communications, Inc. will be
the surviving corporation whose name shall be changed to DeltaCom, Inc.
("Delta"), an Alabama corporation; and
WHEREAS, Delta has agreed to assume all obligations of SI under the
Agreement, and
WHEREAS, Alabama Power Company ("APC") consents to the assignment of the
Agreement to Delta under the terms and conditions below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. Delta hereby certifies that SI has transferred to Delta all of its
rights, liabilities, titles, interest, responsibilities and obligations in, to
and under the Agreement which now exist or might hereinafter accrue to SI under
the Agreement, and APC hereby agrees to the substitution of Delta in lieu of SI
as the other party to the Agreement.
2. Delta hereby accepts and agrees to perform all the liabilities,
responsibilities, and obligations of SI under the Agreement and consents to be
bound by all of the terms and conditions thereof as fully and to the same extent
as if Delta had been the original party to the Agreement.
3. APC does hereby consent to the assignment of the Agreement and all of
the rights, obligations, responsibilities, liabilities, title and interest
thereunder to Delta. Following the effective date of this Amendment, wherever
"SI" appears in the Agreement, "Delta" shall be substituted therefor.
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4. The parties agree that Delta, having herein agreed to be bound by all
the terms and promises of the Agreement, shall not be required to sign a
counterpart of the Agreement pursuant to Article 22 of the Agreement.
5. It is expressly understood and agreed by and among the parties that
APC's consent to this assignment shall not be deemed or treated as a waiver on
APC'S part of the requirement of its approval of any future assignment, transfer
or substitution, nor shall such consent be deemed or treated as a waiver of any
of the terms and conditions of the Agreement, except as specifically provided in
paragraph 4, above, it being expressly agreed and understood that all of such
terms and conditions shall be and remain in full force and effect.
6. It is further understood and agreed by and among the parties that, by
agreeing to this amendment, Delta shall not be deemed to have waived any
provision of the Agreement, except as specifically provided in paragraph 4,
above, and particularly any provision of Article 22.1 of the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 4 to be
duly executed as of the date stated above.
ALABAMA POWER COMPANY DELTACOM, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx XxXxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx XxXxxxxx
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(Print or type)
Title: Vice-President Title: President
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