Exhibit 10.13
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment"), dated as of
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March 27, 1997, is by and between GULF STATES FIBERNET, a Georgia general
partnership, as assignor (the "Assignor"), and GULF STATES TRANSMISSION SYSTEMS,
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INC., a Delaware corporation, as assignee (the "Assignee").
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WHEREAS, the Assignor entered into that certain Loan Agreement dated as of
July 25, 1995 (as amended and modified, the "Loan Agreement") with the Lenders
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party thereto and NationsBank, N.A. (formerly known as NationsBank, N.A.
(Carolinas)), as Agent for the Lenders (the "Agent"), and certain other Loan
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Documents (as defined in the Loan Agreement) in connection therewith as more
particularly described in Schedule I attached hereto (collectively, as amended
or modified, the "Assigned Agreements");
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WHEREAS, the Assignor has agreed to assign to the Assignee all of its
rights, interests, duties, obligations and liabilities in, to and under the
Assigned Agreements;
WHEREAS, the Assignee desires to accept the assignment of all of the
Assignor's rights, interests, duties, obligations and liabilities in, to and
under the Assigned Agreements; and
WHEREAS, immediately following the assignment and assumption of the
Assigned Agreements pursuant to this assignment, (i) ITC Holding Company, Inc.
shall acquire SCANA Communications, Inc.'s general partnership interest in the
Assignor (the "Partnership Interest") and shall transfer the Partnership
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Interest to the Assignee, and (ii) upon receipt of the Partnership Interest, the
Assignee shall hold all of the partnership interests in the Assignor and, by
operation of law, the Assignor shall be dissolved as a partnership and all of
the assets of the Assignor (the "FiberNet Assets"), including, without
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limitation, the Project Contracts more particularly described in Schedule II
attached hereto (the "Project Contracts"), shall become assets of the Assignee;
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and
WHEREAS, the Assignee desires to acknowledge that upon such receipt it will
own such right, title and interest in and to the FiberNet Assets (including,
without limitation, the Project Contracts) as was owned by the Assignor
immediately prior to such receipt.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assignment of Assigned Agreements. The Assignor hereby assigns,
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transfers and conveys to the Assignee all of its rights, interests, duties,
obligations and liabilities in, to and under the Assigned Agreements.
2. Assumption of Assigned Agreements. The Assignee hereby accepts the
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assignment contained in Section 1 and assumes all of the duties, obligations and
liabilities of the Assignor in, to and under the Assigned Agreements to the same
extent as if the Assignee had executed the Assigned Agreements. The Assignee
hereby agrees to be bound by the terms and
provisions of the Assigned Agreements and accepts all of the Assignor's rights,
interests, duties, obligations and liabilities thereunder.
3. Agreement to be Bound by Project Contracts. Immediately following the
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assignment and assumption of the Assigned Agreements pursuant to Sections 1 and
2 above, respectively, and effective upon receipt from ITC Holding Company, Inc.
of the Partnership Interest, the Assignee acknowledges that the Assignor shall
have been dissolved by operation of law and the Assignee shall own such right,
title and interest in and to the FiberNet Assets (including, without limitation,
the Project Contracts) as was owned by the Assignor immediately prior to such
receipt. The Assignee hereby agrees to be bound by the terms and provisions of
the Project Contracts and accepts all of the Assignor's rights, interests,
duties, obligations and liabilities thereunder.
4. No Modifications. Nothing contained in this Assignment shall amend or
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modify, or be deemed to amend or modify, the Assignment Agreements.
5. Governing Law. This Assignment shall in all respects be governed by,
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and construed in accordance with, the internal substantive laws of the State of
North Carolina, including all matters of construction, validity or
interpretation of this Assignment.
6. Counterparts. This Assignment may be executed in several counterparts,
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each of which shall be deemed an original, and all such counterparts shall
constitute one and the same instrument.
7. Binding Nature. This Assignment shall be binding upon and inure to the
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benefit of the parties hereto and their successors and assigns.
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IN WITNESS WHEREOF, the parties herto have duly executed this Assignment as
of the date set forth above.
ASSIGNOR: GULF STATES FIBERNET,
a Georgia general partnership
By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: VP/CEO Managing Ptr.
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ASSIGNEE: GULF STATES TRANSMISSION SYSTEMS,
INC., a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: VP/CEO Managing Ptr.
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Acknowledged and Agreed to:
NATIONSBANK,N.A., as Agent
By:
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Name:
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Title:
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In WITNESS WHEREOF, the parties hereto have duly executed this Assignment
as of the date set forth above.
ASSIGNOR: GULF STATES FIBERNET,
a Georgia general partnership
By:_______________________________
Name:_____________________________
Title:____________________________
ASSIGNEE: GULF STATES TRANSMISSION SYSTEMS,
INC., A Delaware corporation
By:_______________________________
Name:_____________________________
Title:____________________________
Acknowledged and Agreed to:
NATIONSBANK,N.A., as Agent
By:/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: SVP
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Schedule I
to
Assignment and Assumption Agreement
Description of Assigned Agreements
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1. Loan Agreement dated as of July 25, 1995 among Gulf States FiberNet, the
Lenders party thereto and NationsBank, N.A. (formerly known as NationsBank, N.A.
(Carolinas)), as Agent for the Lenders, as amended by that certain First
Amendment to Loan Agreement dated as of December 29, 1995, that certain Second
Amendment to Loan Agreement dated as of March 29, 1996 and that certain Third
Amendment to Loan Documents dated as of September 27, 1996.
2. Term Loan A Promissory Notes dated March 29, 1996 in the following amounts
and payable to the following payees:
(a) $15,657,894.74 Note payable to NationsBank, N.A.
(b) $13,421,052.63 Note payable to The Fuji Bank, Limited
3. Term Loan B Promissory Notes dated March 29, 1996 in the following principal
amounts and payable to the following payees:
(a) $1,842,105.26 Note payable to NationsBank, N.A.
(b) $1,578,947.37 Note payable to The Fuji Bank, Limited
4. Term Loan A Promissory Note dated December 21, 1995 in the principal amount
of $13,421,052.63 payable to MeesPierson N.V.
5. Term Loan B Promissory Note dated December 21, 1995 in the principal amount
of $1,578,947.37 payable to MeesPierson N.V.
6. Security Agreement dated as of July 25, 1995 between Gulf States FiberNet
and NationsBank, N.A. (formerly known as NationsBank, N.A. (Carolinas)), as
Agent for the Lenders, as amended by that certain Third Amendment to Loan
Documents dated as of September 27, 1996.
7. Those certain Assignments dated as of July 25, 1995 executed by Gulf States
FiberNet in connection with the Project Contracts (as defined in the Loan
Agreement referred to in item number 1 above) and naming NationsBank, N.A.
(formerly known as NationsBank, N.A. (Carolinas)), as Agent for the Lenders, as
assignee.
8. Those certain Consent and Agreements dated as of July 25, 1995 executed by
Gulf States FiberNet's counterparties in connection with the Specified Project
Contracts (as defined in the Loan Agreement referred to item number 1 above) and
acknowledging an assignment of a
Specified Project Contract to NationsBank, N.A. (formerly known as NationsBank,
N.A. (Carolinas)), as Agent for the Lenders, as assignee.
9. ISDA Master Agreement, the Schedule and the Confirmation thereto, each
dated as of January 17, 1995, between Gulf States FiberNet and NationsBank, N.A.
(formerly known as NationsBank, N.A. (Carolinas)) relating to interest rate swap
transactions.
10. All other documents and agreements, if any, given by Assignor in connection
with the Loans (as defined in the Loan Agreement referred to in item number 1
above (the "Loan Agreement") or pursuant to the Loan Agreement.
Schedule I, Page 2
Schedule II
to
Assignment and Assumption Agreement
Description of Project Contracts
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1. Telecommunications System Agreement dated January 26, 1995 between
Interstate FiberNet and Sprint Communications Company L.P., which was
assigned by Interstate FiberNet to Gulf States FiberNet pursuant to that
certain Assignment of Contract dated as of March 21, 1995 from Interstate
FiberNet to Gulf States FiberNet and that certain Assumption dated as of
March 21, 1995 by Gulf States FiberNet accepting such Assignment of
Contract, as the same may be amended or modified from time to time.
2. Telecommunications System Maintenance Agreement dated as of January 26,
1995 between Interstate FiberNet and Sprint Communications Company L.P.,
which was assigned by Interstate FiberNet to Gulf States FiberNet pursuant
to an Assignment dated as of July 25, 1996, as the same may be amended or
modified from time to time.
3. Sprint Communications Company Facilities and Services Agreement dated
January 26, 1995 between Sprint Communications Company L.P. and Interstate
FiberNet, which was assigned by Interstate FiberNet to Gulf States FiberNet
in accordance with an Assignment dated as of July 25, 1995, as the same may
be amended or modified from time to time.
4. Specifications for Maintenance of Fiber Regenerator Sites, which was
assigned by Interstate FiberNet to Gulf States FiberNet pursuant to an
Assignment dated as of March 21, 1995, setting forth Interstate FiberNet's
performance obligations regarding all regenerator sites along the fiber
cable route from Atlanta, Georgia, to Shreveport, Louisiana, as the same
may be amended or modified from time to time.
5. Agreement for Use and Non-Disclosure of Confidential Information dated as
of June 6, 1994 between MPX Systems, Inc. and Sprint Communications Company
L.P., as the same may be amended or modified from time to time.
6. Operating Agreement dated as of August 11, 1994 between Gulf States
FiberNet and Illinois Central Railroad Company, as the same may be amended
or modified from time to time.
7. Term Agreement dated as of August 11, 1994 between Gulf States FiberNet and
Illinois Central Railroad Company, as the same may be amended or modified
from time to time.
8. Revised and Restated Fiber Optic Facilities and Services Agreement dated as
of June 9, 1995 by and between Southern Development and Investment Group,
Inc., on behalf of itself 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.,
and MPX Systems, Inc., which was assigned in part by MPX Systems, Inc. to
Gulf States FiberNet pursuant to an Assignment dated as of July 25, 1995,
as the same may be amended or modified from time to time.
9. Operating Agreement dated as of August 17, 1994 by and between Gulf States
FiberNet and Kansas City Southern Railway Company, as the same may be
amended or modified from time to time.
10. Fiber Optic Facility Lease Agreement dated as of January 31, 1997 between
Southern Telecom 1 and Gulf States FiberNet (originally signed by
Interstate FiberNet and assigned effective the same day to Gulf States
FiberNet).
11. Fiber System Lease Agreement dated as of January 30, 1996 between CSW
Communications, Inc. and Gulf States FiberNet.
12. Network Operating Agreement dated March 25, 1996 among Gulf States
FiberNet, TriNet, Inc., Xxxx Communications, Inc. and SCANA Communications,
Inc. (f/k/a MPX Systems, Inc.).
13. The agreement relating to the Longview, Texas to Dallas, Texas spur of the
Project (as defined in the Loan Agreement referred to in Assignment and
Assumption Agreement), if and when such agreement is executed.
14. All other contracts and agreements relating to the construction,
installation, reconstruction, operation, maintenance, repair of or
otherwise relating to the Project (as defined in the Loan Agreement
referred to in the Assignment and Assumption Agreement).
Schedule II, Page 2
