Exhibit 10.16
FIRST AMENDMENT TO
REVISED AND RESTATED
FIBER OPTIC FACILITIES AND SERVICES
AGREEMENT
This FIRST AMENDMENT TO REVISED AND RESTATED FIBER OPTIC FACILITIES AND
SERVICES AGREEMENT (this "Amendment") is entered into as of July 24, 1995 (the
"First Amendment Date") by and between SOUTHERN DEVELOPMENT AND INVESTMENT
GROUP, INC. ("Southern Development"), a corporation organized and existing under
the laws of the State of Georgia and having its principal place of business at
00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000, on behalf of itself and as agent
for Alabama Power Company ("Alabama Power"), Georgia Power Company ("Georgia
Power"), Gulf Power Company ("Gulf Power"), Mississippi Power Company
("Mississippi Power"), Savannah Electric and Power Company ("Savannah
Electric"), Southern Electric Generating Company ("SEGCO") and Southern Company
Services, Inc. ("SCSI") (Southern Development, Alabama Power, Georgia Power,
Gulf Power, Mississippi Power, Savannah Electric, SEGCO and SCSI being
collectively referred to herein as the "Southern Electric System" or "SES"), and
MPX Systems, Inc., a corporation organized and existing under the laws of the
State of South Carolina with offices at 000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx,
XX 00000 ("MPX").
W i t n e s s e t h :
WHEREAS, SES and MPX entered into a Revised and Restated Fiber Optics
Facilities and Services Agreement (the "Agreement"), dated as of June 9, 1995
(the "Restatement Date"), providing for the installation and operation of fiber
optic telecommunications facilities on, in and under electric transmission and
distribution facilities of SES and elsewhere and the use thereof by SES and MPX;
WHEREAS, the parties desire to correct certain errors and omissions in
the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants hereinafter set forth, and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. AMENDED DEFINITION.
The Agreement is amended by striking Definition 1.13 in its entirety and
substituting therefor the following:
1.13 "Exclusive User" -- A person or entity with which MPX has a
direct contractual relationship permitting such person or entity the exclusive
use of all or substantially all of the MPX Fibers and the Capacity thereof on
any Route Segment OTHER THAN the Route Segments identified on Exhibits X-0, X-0
and D-9.
2. PROFIT SHARING PAYMENTS.
The Agreement is amended by adding at the end of the first sentence of
Subsection 7.1 the phrase "derived from the use of the MPX Interest and the SES
Interest."
3. NOTICES.
The Agreement is amended by substituting "Xxxxx Xxxxxxxx" for "Xxxxxx
Xxxxx" in the fourth line of Subsection 31.1.
4. ADDITIONAL EXHIBITS.
The Agreement is amended by deleting therefrom Exhibits H-1 through H-11
and substituting therefor Exhibits H(1)-1 through H(1)-14, which are attached
hereto and incorporated herein by this reference.
5. EFFECTIVE DATE OF AMENDMENT.
The revisions to the Agreement contained in this Amendment shall be
effective as of the Restatement Date.
6. RATIFICATION OF REMAINING PROVISIONS.
Except as expressly modified by the foregoing, the Agreement is not
otherwise altered or amended, and all remaining provisions thereof are hereby
ratified and affirmed.
SOUTHERN ELECTRIC SYSTEM MPX SYSTEMS, INC.
REVISED AND RESTATED FIBER OPTIC FACILITIES AND SERVICES AGREEMENT
================================================================================
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed on their behalf, as of the Restatement Date.
SOUTHERN DEVELOPMENT AND
INVESTMENT GROUP, INC.
By: /s/XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
(Printed or Typed)
Its: V.P. & G.M. SDIG
---------------------------------
(Title)
Attest: /s/XXX X. XXXXX, XX.
------------------------------
Name: Xxx X. Xxxxx, Xx.
--------------------------------
(Printed or Typed)
Its: Assistant Secretary
---------------------------------
(Title)
(CORPORATE SEAL)
MPX SYSTEMS, INC.
By: /s/M. D. XXXXXXXXX
----------------------------------
Name: M. D. Xxxxxxxxx
--------------------------------
(Printed or Typed)
Its: Executive Vice President
---------------------------------
(Title)
Attest: /s/K. B. XXXXX
------------------------------
Name: K. B. Xxxxx
--------------------------------
(Printed or Typed)
Its: Secretary
---------------------------------
(Title)
(CORPORATE SEAL)
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