Exhibit 10.19
SECOND PARTIAL ASSIGNMENT AND ASSUMPTION OF
REVISED AND RESTATED FIBER OPTIC FACILITIES
AND SERVICES AGREEMENT
THIS SECOND PARTIAL ASSIGNMENT AND ASSUMPTION OF REVISED AND RESTATED FIBER
OPTIC FACILITIES AND SERVICES AGREEMENT (the "Assignment") is dated as of the
27th day of March, 1997, by and between SCANA COMMUNICATIONS, INC.,
(formerly known as "MPX Systems, Inc.") a South Carolina corporation
("Assignor"), and ITC HOLDING COMPANY, INC., a Delaware corporation
("Assignee").
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, 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, Assignor 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 terms and conditions set forth herein;
WHEREAS, Southern Development has heretofore consented in writing to
Assignor's assignment to Assignee of 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's assignment to Assignee of
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 its remaining interest in the
Facilities and Services Agreement including, but not limited to, that portion of
the MPX Interest consisting of the specific routes listed on Schedule 1 attached
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hereto and made a part hereof (the "Routes") and 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.
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.
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 until such time as
Assignor is released by the Southern Electric System thereunder;
(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;
(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 4 of the Facilities
and Services Agreement, subject to the terms of said Section 5;
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(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. 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:
SCANA Communications, Inc.
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy No.: 000-000-0000
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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:
ITC Holding Company, Inc.
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy No.: 000-000-0000
with an additional copy (which shall not constitute notice) to:
DeltaCom, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
7. 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 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 Second 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:
SCANA COMMUNICATIONS, INC.
By: /s/ K. B. Xxxxx
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Name: K. B. Xxxxx
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Title: V.P. & CFO
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ASSIGNEE:
ITC HOLDING COMPANY, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
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Title: Vice President
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SCHEDULE 1
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TO SECOND PARTIAL ASSIGNMENT AND ASSUMPTION OF REVISED AND
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RESTATED FIBER OPTIC FACILITIES AND SERVICES AGREEMENT
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SUMMARY OF ROUTES
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Route Segment Route Miles # Fibers SES Exhibits #*
------------- ----------- -------- ---------------
00 Xxxx Xxxxx to Tap 15 16 Fibers Exhibit #D-6
Tap to Xxxxxxxx 85 10 Fibers Exhibit #D-7
00 Xxxx Xxxxx to Xxxxxx 15 12 Fibers Exhibit #D-9
Jonesboro to Xxxxxx 7 10 Fibers Exhibit #D-10
* Exhibit reference is to that certain Revised and Restated Fiber Optic
Facilities and Services Agreement between The Southern Electric System and MPX
Systems, Inc. (now known as SCANA Communications, Inc.), Dated as of June 9,
1995.
