Exhibit 10.34
FIRST AMENDMENT TO
IRU AND TELECOMMUNICATIONS SERVICES AGREEMENT
BETWEEN
DIGITAL TELEPORT, INC.
AND
ADELPHIA BUSINESS SOLUTIONS, INC
FIRST AMENDMENT TO
IRU AND TELECOMMUNICATIONS SERVICES AGREEMENT
This First Amendment to the IRU and Telecommunications Services
Agreement (the "Amendment") is made by and between Digital
Teleport, Inc., a Missouri corporation ("Provider"), and Adelphia
Business Solutions Long Haul, L.P., a Delaware limited
partnership ("Recipient"), each of Provider and Recipient, a
"Party."
RECITALS
A. Provider and Recipient entered into an IRU and
Telecommunications Services Agreement dated November 9, 1999 (the
"Agreement") pursuant to which Provider agreed to provide to
Recipient and Recipient agreed to accept from Provider certain
IRU rights to telecommunications facilities of Provider, on the
terms and conditions set forth therein;
B. Provider and Recipient agree that certain System Routes
have not been delivered and accepted in the timeframes required
by the Agreement; and
C. Provider and Recipient desire to amend the Agreement to
confirm certain understandings reached between Provider and
Recipient regarding the Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:
TERMS AND CONDITIONS
1. On September 6, 2000, Recipient exercised certain of its
rights in the Agreement to cancel the following System Routes:
a. System Route 14, except for the Provider POP, following
Route 64 to Hwy 61 to the Provider POP in Wentzville to obtain
diverse LH routing.
b. System Route 15, except for the Provider POP to East
Whitehaven/South Parkway East and except for the leg from East
Whitehaven/South Parkway East, heading north to the backbone
splice point on the LH towards Nashville on Old Brownsville Road.
c. System Route 16 south of I-70.
d. The Lebanon to St. Louis portion of System Route 5.
e. The Indianapolis to Chicago portion of System Route 11.
The Parties acknowledge that Provider has reimbursed Recipient in
full for its Initial IRU Payments specific to these canceled
routes, with interest, as summarized in Attachment A to this
Amendment. The Agreement is hereby amended to document these
activities.
2. On January 25, 2001, Recipient exercised certain of its
rights in the Agreement to cancel the following System Routes:
a. The Indianapolis to Springfield segment of System Route 11.
b. The Des Moines to Chicago segment of System Route 7.
c. Two (2) Recipient Fibers along System Route 1.
d. Two (2) Recipient Fibers along System Route 9.
Recipient agrees not to cancel remaining System Routes or System
Segments unless Provider fails to have such remaining System
Routes or System Segments available for delivery to Recipient,
pursuant to the terms of the Agreement, on or before September
30, 2001. Should Provider fail to deliver remaining System
Routes or System Segments according to this Amendment, Recipient
shall be permitted to terminate those System Routes or System
Segments and receive refund for monies paid to date with interest
according to the process delineated in Section 4.1 of the
Agreement.
FIRST AMENDMENT TO IRU AGREEMENT
3. The first sentence of Section 2.5 of the Agreement shall be
amended to read as follows: "Recipient will have an option (the
"Option") to acquire up to an additional two (2) Recipient Fibers
along System Route 2, System Route 1 and System Route 9
(together, the "Option Fibers"), subject to the availability of
such Option Fibers from among those fibers that Provider has
allocated for dark fiber leases to third parties, which shall be
no fewer than two (2) fibers with respect to each such System
Route as of the date of this Agreement (the "Available Fibers").
Recipient's option for Recipient Fibers along System Route 1
shall not be available after January 10, 2003, while Recipient's
option for Recipient Fibers along System Routes 2 and 9 shall
continue for the term of the Agreement."
4. On January 10, 2002, Recipient agrees to pay the following
amounts to Provider:
a. All remaining IRU Fees for all associated System Routes that
have not previously been canceled by Recipient;
b. Plus: any unpaid Building Space Fees for Selected Sites and
maintenance fees accruing from the time applicable System
Segments would have been deemed Accepted by Recipient, or the
applicable bandwidth would have been deemed to be available, had
the Agreement not been amended to allow deferral as set forth in
this Section 4 of this Amendment;
c. Less: any and all credits, as originally set forth in
Section 4.1 of the Agreement, due from Provider to Recipient
either for uncompleted or undelivered System Segments or for
unavailable requisite bandwidth, which shall reimburse Recipient
for operating costs it incurred resulting from its inability to
operate its fiber optic long haul network due to Provider's
failure to deliver to Recipient such System Segments or
bandwidth. Such credits, which shall no longer continue to accrue
after December 31, 2000, total five million five hundred thousand
dollars ($5,500,000.00).
d. Less: the reimbursement of the Initial IRU Payments due to
Recipient on the cancelled System Routes set forth in Section 2
of this Amendment, as set forth in Attachment B to this
Amendment;
e. Plus: interest at the rate of 11% per annum, compounded
annually, on all net amounts (a - d) due to Provider from the
time in which such payments (or reimbursements, as the case may
be) would have been made had the Agreement not been amended to
allow deferral as set forth in this Section 4 of this Amendment.
Recipient shall have the option, at its sole discretion and with
sixty (60) days advanced written notice to Provider, to
accelerate Acceptance on any and all System Segments prior to
January 10, 2002, but after September 30, 2001, at which time all
required net
FIRST AMENDMENT TO IRU AGREEMENT
payments as set forth above related to the System
Segment (a+b-c+e) shall be paid to Provider. The parties agree
that System Segment 5 is considered to be already accelerated and
will be accepted by Recipient upon delivery by Provider.
Provider shall deliver System Segment 5 to Recipient upon
delivery to Provider from the third party provider.
5. The price per fiber mile for the Second Optional Route and
the Third Optional Route shall be $1,600. Recipient agrees to
take delivery of such System Routes on January 10, 2002, unless
accelerated as set forth in Section 4 of this Amendment.
6. All of the terms and conditions of the Agreement not
addressed by this Amendment shall remain in full force and
effect. In the event of any conflict between the terms of this
Amendment and of the Agreement, the terms and intent of this
Amendment shall govern, and the Amendment and the Agreement shall
be interpreted and applied accordingly.
7. This Amendment may be executed in one or more counterparts,
all of which taken together shall constitute one and the same
instrument.
8. Provider and Recipient hereby warrant and represent each to
the other, that each party is authorized and empowered to execute
this Amendment in the capacity indicated.
FIRST AMENDMENT TO IRU AGREEMENT
The undersigned do hereby agree to the terms and conditions
of this Amendment.
Agreed: Agreed:
Adelphia Business Solutions Digital Teleport, Inc.
Long Haul, L.P., by Adelphia
Business Solutions General
Holdings, Inc., its General
Partner.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
Name: XXXX XXXXXXXXX Name: Xxxx X. Xxxxxxxx
Title: V.P. and General Counsel Title: Interim President and CEO
FIRST AMENDMENT TO IRU AGREEMENT
ATTACHMENT A
DIGITAL TELEPORT, INC.
ADELPHIA CASH FLOW CHANGES
AS OF SEPTEMBER 6, 2000
NUMBER
TOTAL PORTION OF COST
ROUTE OF TOTAL FIBERS TOTAL PER 30%
MILES ROUTE ROUTE IN FIBER FIBER PAYMENT
ROUTE PER DELETED MILES ROUTE MILES PER THE TO BE
DESCRIPTION CONTRACT BY ADELPHIA DELETED DELETED DELETED CONTRACT REURNED
----------- -------- ----------- ------- ------- ------- -------- -----------
XX-XXXXXX- 437 Lebanon- 159 4 636 $ 1,800 $ 343,440
StL StL(I-44)
StL-Quincy- 736 Indy-CHI 224 4 896 1,800 483,840
Indy-CHI
StL Metro 212 All 212 6 1,272 1,500 572,400
Memphis 40 All, except 25 6 150 1,500 67,500
Metro DTI POP to
E Whitehaven/ 15 2 30 1,500 13,500
S Pkwy E
Kansas City 145 South of 76 6 456 1,500 205,200
Metro I-70 ------------------------------------------------
SUB-TOTALS 711 3,440 $1,685,880
=== =====
Interest - Nov 9, 1999
to September 6, 2000 =$1,685,880*8%*(21+30*9+6)DAYS/360DAYS 111,268
----------
TOTALS $1,797,148
==========
* Interest based on a 360 day year at 8%
ATTACHMENT B
DIGITAL TELEPORT, INC.
IRU FEES DUE ADELPHIA
RELATED TO JANUARY 25, 2001 ROUTE CANCELLATIONS
NUMBER COST 30%
TOTAL PORTION OF PER IRU
ROUTE OF TOTAL FIBERS TOTAL FIBER PAYMENT
SYSTEM SYSTEM MILES ROUTE ROUTE IN FIBER MILE TO
ROUTE ROUTE PER DELETED MILES ROUTE MILES PER THE BE
NUMBER DESCRIPTION CONTRACT BY ADELPHIA DELETED DELETED DELETED CONTRACT RETURNED
------ ----------- -------- ----------- ------- ------- ------- -------- --------
1 Denver- 925 All 925 2 1,850 1,800 $999,000
Dallas/Ft
Worth
7 Xxxxx- 000 Xxx 000 0 1,536 1,800 $829,440
Chicago Moines to
Chicago
9 Minneapolis 450 Two(2) 450 2 900 1,800 $486,000
to Chicago Fibers
11 St Louis 512(a) Springfield to 261 4 1,044 1,800 $563,760
to Chicago Indianapolis ---------
$2,878,200
=========
(a) Excluding miles related to previously cancelled routes
FIRST AMENDMENT TO IRU AGREEMENT
