Exhibit 10.17
PARTIAL ASSIGNMENT AND ASSUMPTION OF
REVISED AND RESTATED FIBER OPTIC FACILITIES
AND SERVICES AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF REVISED AND RESTATED FIBER
OPTIC FACILITIES AND SERVICES AGREEMENT (the "Assignment") is dated as of the
25th day of July, 1995 by and between MPX SYSTEMS, INC., a South Carolina
corporation ("Assignor"), and GULF STATES FIBERNET, a Georgia general
partnership ("Assignee").
WHEREAS, pursuant to Section 8.01 of the Agreement of Partnership of
Assignee dated as of August 17, 1994, as amended as of November 1, 1994 (the
"Partnership Agreement"), Assignor agreed to enter into agreements with Assignee
for the provision of fiber optic facilities and services on certain routes
pursuant to agreements to be negotiated by Assignor with Southern Company, an
affiliate of Southern Development and Investment Group, Inc., a Georgia
corporation ("Southern Development");
WHEREAS, Assignor and Southern Development, 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 collectively
shall be referred to as the "Southern Electric System") are parties to that
certain Revised and Restated Fiber Optic Facilities and Services Agreement
entered into as of June 9, 1995 (the "Facilities and Services Agreement");
WHEREAS, for the purpose, among others, of satisfying its obligations
to Assignee in the Partnership Agreement, Assignor entered into the Facilities
and Services Agreement which provides for the provision of fiber optic
facilities and services to Assignor on such routes;
WHEREAS, subject to the terms of the Facilities and Services
Agreement, Assignor owns and has the right to use the MPX Interest (as defined
therein);
WHEREAS, pursuant to and as limited by Section 3.6 of the Facilities
and Services Agreement, MPX has the right to use the SES Interest (as defined
therein) to the extent not used by SES; and
WHEREAS, Assignor desires to assign to Assignee the Facilities and
Services Agreement and Assignor's rights thereunder to the extent related to
that portion of the MPX Interest described in Paragraph 2 below and
Assignor desires to
assign to Assignee the right to use that portion of the SES Interest described
below on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Assignor and Assignee hereby agree as follows:
1. All capitalized terms not otherwise defined herein shall have the
meanings such terms have in the Facilities and Services Agreement.
2. Assignor does hereby assign, bargain, sell, transfer, convey and
deliver to Assignee and its successors and assigns the Facilities and Services
Agreement to the extent related to that portion of the MPX Interest consisting
of the specific routes listed on Schedule 1 attached hereto and made a part
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hereof (the "Routes") together with all rights and obligations of Assignor under
the Facilities and Services Agreement related to the Routes, including the
rights of an Exclusive User with respect to the Routes. Subject to the
provisions of Section 3.6 of the Facilities and Services Agreement, Assignor
does hereby grant to Assignee the exclusive right to use the SES Interest to the
extent related to the Routes, which right to use shall include, without
limitation, the rights of an Exclusive User with respect to the Routes.
3. Assignee hereby accepts such assignment and grant and assumes,
and agrees to perform and be bound by, all obligations and liabilities of
Assignor under the Facilities and Services Agreement (i) related to that portion
of the MPX Interest assigned hereby, including all rights and obligations of an
Exclusive User thereof, and (ii) related to the right to use that portion of the
SES Interest granted hereby, including all rights and obligations of an
Exclusive User thereof.
4. Assignor does hereby agree, from and after the date hereof upon
the request of Assignee, to execute such other documents as Assignee may require
in order to obtain the full benefit of this Assignment and Assignor's
obligations and agreements hereunder.
5. The assignment and assumption effected hereby is subject to the
following additional terms and conditions:
(i) nothing herein shall be construed to relieve Assignor of any
of its obligations or liabilities under the Facilities and Services
Agreement insofar as the Southern Electric System is concerned;
(ii) nothing herein shall be construed to limit Assignor's right
to grant rights to use under Section 4.1(a) and Section 32.3 of the
Facilities and Services Agreement to the extent not inconsistent with
the terms hereof or not otherwise related to the subject matter
hereof;
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(iii) Assignor and Assignee hereby agree that in the event the
Southern Electric System makes a payment to Assignor pursuant to
Section 4.2(a) of the Facilities and Services Agreement, Assignor
shall remit to Assignee that portion of such payment that is allocable
to the Routes;
(iv) the obligations assumed by Assignee pursuant hereto shall
include the obligation to permit the Southern Electric System to use
fiber optic telecommunications capacity pursuant to Section 5 of the
Facilities and Services Agreement, subject to the terms of said
Section 5;
(v) Assignor and Assignee hereby agree that Assignee shall be
entitled to any proceeds from any assignment, transfer, sale or
conveyance pursuant to Section 32.2 of the Facilities and Services
Agreement allocable to the Routes or the other rights assigned hereby
and, in the event any of such proceeds are received by Assignor,
Assignor shall remit such proceeds to Assignee; provided, however,
that the foregoing shall not be construed to mean that Assignor shall
have the right to assign, transfer, sale or convey the Routes or the
other rights assigned hereby subsequent to the effectiveness hereof;
and
(vi) Assignor and Assignee hereby agree that no customer or
other individual or entity to whom Assignee sells or leases capacity
on any of the Routes shall be deemed an Exclusive User under the
Facilities and Services Agreement.
6. Assignee hereby agrees to indemnify, defend and hold harmless
Assignor from and against any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements
(collectively, "Claims"), to the extent any such Claim is asserted against,
resulting to, imposed upon or incurred by Assignor, directly or indirectly, by
reason or resulting from, any breach of or noncompliance with any covenant or
condition by Assignee required to be performed by Assignee under the Facilities
and Services Agreement by virtue of this Assignment.
7. Assignor hereby agrees to indemnify, defend and hold harmless
Assignee from and against any and all Claims to the extent any such Claim is
asserted against, resulting to, imposed upon or incurred by Assignee, directly
or indirectly, by reason or resulting from, any breach of or noncompliance with
any covenant or condition by Assignor in or pursuant to the Facilities and
Services Agreement (except for covenants or conditions required to be performed
by Assignee by virtue of this Assignment).
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8. All notices, demands, requests, or other communications to be
given, served, or sent by either party to the other party regarding this
Assignment shall be in writing and shall be mailed by first-class registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
overnight courier, hand delivery (including delivery by courier), telegram,
telex, or facsimile transmission, addressed as follows:
(i) If to Assignor:
MPX Systems, Inc.
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopy No.: 000-000-0000
with an additional copy (which shall not constitute notice) to:
SCANA Corporation
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No;: 000-000-0000
(ii) If to Assignee:
Gulf States FiberNet
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy No;: 000-000-0000
9. Southern Development, on its behalf and on behalf of the other
members of the Southern Electric System, by its execution below, hereby consents
to this Assignment and the assignment and assumption contemplated hereby and
waives the provisions of Section 32.2 of the Facilities and Services Agreement
to the extent applicable to this Assignment and said assignment and assumption.
The Southern Electric System further agrees that any notices required or
permitted to be sent by the Southern Electric System pursuant to the Facilities
and Services Agreement shall be sent both to Assignor at the address for
Assignor set forth in Section 31 of the Facilities and Services Agreement and to
Assignee at the address for Assignee set forth in Section 8 above.
10. To facilitate execution, this Assignment may be executed in as
many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient
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that the signature of,or on behalf of each party; or that the signatures of the
persons required to bind any party, appear on one or more of the counterparts.
All counterparts shall collectively constitute a single agreement. It shall not
be necessary in making proof of this Assignment to produce or account for more
than a number of counterparts containing the respective signatures of, or on
behalf of, all of the parties hereto.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this Partial
Assignment and Assumption of Revised and Restated Fiber Optic Facilities and
Services Agreement to be executed as of the day and year first above written.
ASSIGNOR:
MPX SYSTEMS INC.
By: /s/ M. D. Xxxxxxxxx
---------------------------------
Name: M. D. Xxxxxxxxx
--------------------------
Title: Executive Vice President
--------------------------
ASSIGNEE:
GULF STATES FIBERNET
By: Gulf States Transmission Systems, Inc.,
General Partner
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
-------------------------
Title: VP/CEO
-------------------------
By: MPX Systems Inc.,
General Partner
By: /s/ M. D. Xxxxxxxxx
---------------------------------
Name: M. D. Xxxxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
SOUTHERN DEVELOPMENT:
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: V.P. & G.M. So. Dev & Inv. Group
---------------------------------
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Schedule 1
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Summary of Routes that are the subject of a certain Partial Assignment and
Assumption of Revised and Restated Fiber Optic Facilities and Services Agreement
Southern Electric Systems & MPX Systems
Contract Date June 9, 1995
Exhibit Reference Route Segment
D-1 Xxxxxx-Plant Xxxxx
D-3 Plant Xxxxx-Water Works
X-0 Xxxxx Xxxxx-XXX X.X
X-0 00 Xxxx Xxxxx-Xxxxxx (A)
X-0 Xxxxxxxx-Xxxxxxxxxx
X-0 Xxxxxxxxxx-Xxxxxx
X-0 Xxxxxx-Gulfport
F-1 Meridian-Xxxxxxx
F-2 Xxxxxx-Forest
F-3 Xxxxxxx-Shreveport
H-(1)-1 Winder-55 Park Place
H-(1)-2 Winder-Gainesville Wachovia
H-(1)-3 Gainesville Wachovia-Gainesville GPC Dist. Office
H-(1)-4 Plant Xxxxxx Birmingham
H-(1)-5 Birmingham-Meridian
X-(0)-0 Xxxxx-Xxxx Xxx
X-(0)-0 Xxxx Xxx-Xxxxxxxx
H-(1)-9 Tuxcaloosa Loop
H-(1)-11 APC G.O. Xxxxxx Ave
H-(1)-14 Xxxxx-Plant Xxxxxx
