FIRST AMENDMENT TO DARK FIBER IRU AGREEMENT
Confidential
Treatment Request by RCN Corporation
FIRST
AMENDMENT TO DARK FIBER IRU AGREEMENT
This
First Amendment to Dark Fiber IRU Agreement ("Amendment")
is
between MCImetro Access Transmission Services of Massachusetts, Inc.
("MCI”),
as
successor-in-interest to Metropolitan Fiber Systems/XxXxxxx, Inc., and RCN
Telecom Services, Inc. ("RCN”),as
successor-in-interest to RCN Telecom Services of Massachusetts,
Inc.
WHEREAS,
the predecessors of MCI and RCN entered into a Dark Fiber IRU Agreement dated
May 8, 1997 (the "Agreement");
and
WHEREAS,
pursuant to the Proposed Final Judgment, defined below, MCI and RCN have entered
into an Amended and Restated Master IRU Agreement, as amended, for the
Boston-Worcester Metropolitan Statistical Area, which is subject to approval
by
the United States Department of Justice, as described below (“DOJ
IRU”);
and
WHEREAS,
RCN must use some of the Dedicated Fibers and the WorldCom Laterals, as both
are
defined in the Agreement, in conjunction with the DOJ IRU; and
WHEREAS,
RCN hereby elects to renew the Agreement for five years pursuant to the option
to extend, as set forth in Section 25.b. of the Agreement (“Renewal
Term”);
and
WHEREAS,
MCI has agreed to accept a one-time payment for such extension, which will
include the Recurring Charges and Maintenance Costs;
NOW
THEREFORE,
in
consideration of the terms set forth in this Amendment, MCI and RCN agree as
follows:
1. Definitions.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them by the Agreement or by the DOJ IRU.
2. Term.
Section
11 of the Agreement is revised to read as follows:
11.
Term.
The
"Term" is hereby defined as being the period which commences on the date of
this
Agreement and which ends on January 1, 2012 unless earlier terminated pursuant
to the terms of this Agreement.
3. Renewal
Fee.
In
consideration for the extension of the Agreement for five (5) years, RCN hereby
agrees to pay to MCI the sum of Ù
($Ù)
as a
one-time fee for the entire Renewal Term (“Renewal
Fee”).
The
Renewal Fee shall also include the payment of RCN's obligations pursuant to
Sections 18.b.(i) and (ii) of the Agreement for the Renewal Term, and RCN shall
not have any additional obligation for Sections 18.b.(i) and (ii) beyond the
Renewal Fee. The obligations in Section 18.b.(iii) of the Agreement shall remain
part of the Agreement. The Renewal Fee shall be paid to MCI within thirty (30)
days after the date of an invoice from MCI for such fee.
4. Limited
Exception to Restrictions.
Notwithstanding the restrictions set out in Sections 12, 14 and 18.a. of the
Agreement, in addition to any permitted uses in the Agreement, RCN may use
the
Dedicated Fibers and WorldCom Laterals for the limited purpose of connecting
RCN's network to the Dark Fiber Facilities, as defined in the DOJ IRU. Such
use
shall only encompass traffic originating from or terminating at the buildings
set out in Exhibit A-1 of the DOJ IRU.
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Ù
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Certain
information on this page has been omitted and filed separately
with the
Securities and Exchange Commission.
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Confidential
Treatment Request by RCN Corporation
5. Effective
Date of Amendment.
This
Amendment shall not become effective until all three of the following conditions
are met: (a) the receipt of the Renewal Fee by MCI; (b) entry by the United
States District Court of the proposed Final Judgment filed in United
States v. Verizon Communications Inc. and MCI, Inc.,
United
States District Court for the District of Columbia, Case No. 1 :05CV02 103
(the
“Proposed
Final Judgment”);
and
(c) approval by the United States Department of Justice (“DOJ”)
of RCN
as the
acquirer of the Divestiture Assets identified in the Proposed Final Judgment
for
the Portland, Boston-Worchester, and Richmond Metropolitan Statistical Areas
(the “MSAs”).
In
the event that 5(a), above, occurs but that either 5(b) or 5(c), above, does
not
occur, then RCN shall have sixty (60) days from the date that the Court denies
the Proposed Final Judgment or DOJ provides notice that it does not approve
RCN
as the acquirer of the Divestiture Assets in the MSAs, whichever is earlier,
to
pay Verizon an additional Ù
($Ù)
(the
“Additional
Renewal Fee”)
to
make this Amendment effective. If RCN fails to pay the Additional Renewal Fee
within such time period but has paid the Renewal Fee to Verizon, then RCN shall
have an additional twelve (12) months (the “Migration
Period”)
to use
the Dedicated Fibers and WorldCom Laterals under the Agreement, and Verizon
shall reimburse RCN the difference between the Renewal Fee paid by RCN and
a
pro
rata
portion
of the Renewal Fee plus the Additional Renewal Fee (the “Original
Renewal Fee,”
which
is Ù
($Ù))
from
January 1, 2007 until the end of the Migration Period. By way of example, if
DOJ
provides notice that it does not approve RCN as a purchaser of the Divestiture
Assets for the MSAs on January 11, 2007, then RCN has until March 12, 2007
to
pay the Additional Renewal Fee. If RCN does not pay the Additional Renewal
Fee
but has paid the Renewal Fee, then the Migration Period will end on March 12,
2008 and Verizon will reimburse RCN $Ù,
which
is the Renewal Fee paid by RCN ($Ù)
minus
the pro rata portion of the Original Renewal Fee (the pro
rata
portion
being $Ù,
which
is calculated as follows:
$Ù
(Original Renewal Fee) divided by 5 years, further divided by 365 days, then
multiplied by 436 days (the period from January 1, 2007 to the end of the
Migration Period)). At the end of the Migration Period (if applicable), RCN
shall not have any rights to use nor any rights related to or associated with
the Dedicated Fibers and WorldCom Laterals under the Agreement.
6. Savings
Provision.
Except
as expressly provided herein, the Agreement shall
remain
in
full force and effect as originally written.
7. Notices.
The
notices required or permitted by the Agreement shall be delivered in accordance
with the provisions of Section 31of the Agreement to the following address(es)
or such other addresses as the applicable party may specify by notice provided
in accordance with Section 31 of the Agreement:
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If
to MCI:
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MCImetro
Access Transmission
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Services
of Massachusetts, Inc.
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Attn:
Group Manager
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Department
63353/107
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0000
X. Xxxxxxxxx Xx.
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Xxxxxxxxxx,
XX 00000
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Ù
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Certain
information on this page has been omitted and filed separately
with the
Securities and Exchange
Commission.
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Confidential
Treatment Request by RCN Corporation
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with
a copy to:
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MCImetro
Access Transmission
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Services
of Massachusetts, Inc.
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Attn:
Legal Department
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0000
X. Xxxxxxxxx Xx.
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Xxxxxxxxxx,
XX 00000
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If
to RCN:
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RCN
Telecom Services
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000
Xxx Xxxxx Xxxxxx
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Xxxxxxx,
XX 00000
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ATTN:
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with
a copy to:
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RCN
Telecom Services
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000
Xxx Xxxxx Xxxxxx
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Xxxxxxx,
XX 00000
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ATTN:
General Counsel
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8. Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute the same
instrument.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed as of
the
date first set forth above by their duly authorized
representatives.
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MCImetro
ACCESS TRANSMISSION
SERVICES
OF MASSACHUSETTS, INC.
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RCN
TELECOM SERVICES, INC.
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Name:
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Xxxxxx
X. Xxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Vice
President
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Title:
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EVP
& CFO
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Date:
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November
28, 2006
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Date:
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November
27, 2006
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