Filed by Bowne Pure Compliance



 




Exhibit 10.4




CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION



FIRST AMENDMENT TO DARK FIBER IRU AGREEMENT




This First Amendment to Dark Fiber IRU Agreement (“Amendment”) is between Metropolitan
Fiber Systems of New York, Inc. (“MFS”), and RCN Telecom Services, Inc. (“RCN”), as
successor-in-interest to RCN Telecom Services of New York, Inc.



WHEREAS, MFS and RCN Telecom Services of New York, Inc., the predecessor of RCN, entered into
a Dark Fiber IRU Agreement dated May 8, 1997 (the “Agreement”); 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; and



WHEREAS, MFS has agreed to accept, and RCN shall pay, a one time, all inclusive payment for
such extension, which will satisfy RCN’s payment obligations under the Agreement and this
Amendment, including, but not limited to Recurring Charges and WorldCom’s Maintenance Costs.



NOW THEREFORE, in consideration of the terms set forth in this Amendment, MFS and RCN agree as
follows:




1. Definitions. All capitalized terms not otherwise defined herein shall have
the meanings ascribed to them by the Agreement.




2. Term. Section 11 of the Agreement is hereby deleted in its entirety and
replaced with the following:



11. Term. The “Term” is hereby defined as being the period
which commences on the date of this Agreement and which ends on
December 31, 2011 unless earlier terminated pursuant to the terms of
this Agreement. The period of time from January 2, 2007 through
December 31, 2011 shall be referred to herein as the “Renewal Term.”




3. Renewal Fee. In consideration for the extension of the Agreement for five
(5) years, RCN hereby agrees to pay to MFS a one time fee for the entire Renewal Term of
******* (“Renewal Fee”). The Renewal Fee shall be paid to MFS within
thirty (30) days after receipt by RCN of an invoice from MFS for such fee. Payment of the
Renewal Fee shall fully satisfy 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. There are no maintenance fees
to be incurred or paid by RCN under this Amendment. All other payment obligations in the
Agreement shall remain the same through the Renewal Term.



 






* Confidential material which has been omitted
and filed separately with the Securities and Exchange Commission.


 


 









 






4. Dedicated Fibers. The definition of “Dedicated Fibers” in the Agreement
shall be modified by this Amendment and after the Amendment Effective Date shall consist
solely of those certain designated fibers within the WorldCom Facilities as more
particularly described in the attached Revised Exhibit 5. Any Dedicated Fibers in RCN’s
possession that are not listed on the Revised Exhibit 5 have been relinquished by RCN and
have been or will be returned to MFS within 30 days of final execution of this Amendment
(“Relinquished Fibers”). After thirty (30) days following the execution of this Amendment,
RCN shall only utilize the Dedicated Fibers set out in the Revised Exhibit 5.




5. Relinquished Fiber Process and Timeframe.




a) The parties shall cooperate and work together in good faith in order to help ensure
the Relinquished Fibers are fully accessible and capable of being used by MFS within ninety
(90) days following the execution of this Amendment; provided that RCN can request, and MFS
shall approve an extension of this 90 day period for a commercially reasonable period of
time for good cause shown, not to exceed ninety (90) additional days, except as otherwise
mutually agreed upon. Except as otherwise mutually agreed upon by the parties, all
Relinquished Fiber shall be returned to MFS’s use within one hundred eighty (180) days
following the execution of this Amendment.




b) The parties agree that the process by which RCN shall relinquish the WorldCom Fiber
shall primarily involve resplicing fiber back into the Verizon/MFS network. The parties
agree to proceed with this effort according to the following:




i) On or before December 20, 2007, RCN shall deliver to MFS a proposed project plan
and schedule providing an outline of RCN’s resplicing plan. This RCN resplicing
project plan will identify the fibers to be relinquished along with the Verizon/MFS
splice cases to be affected, and shall identify a preliminary timeframe for RCN’s
proposed efforts. MFS shall review the RCN proposal and provide input and
comments back to RCN (including an estimate of costs that MFS proposes would be
reimbursed by RCN) within 10 business days following receipt of the plan. The
parties shall thereafter work together and in good faith to finalize a resplicing
plan that accommodates the operational needs and limitations of both parties. The
parties acknowledge that the resplicing plan may need to be modified and adjusted on
a periodic basis, and shall work together in good faith to facilitate any needed
modifications, and minimize any associated costs.


 


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ii) RCN shall begin resplicing work as soon as practicable following the execution
of this First Amendment. RCN shall notify MFS no less than five (5) days prior to
the time it intends to access Verizon/MFS splice cases for the purposes of
resplicing Relinquished Fiber. Notice shall be provided to permit MFS to have one
or two MFS representatives present at the time RCN accesses the splice case
and performs the resplicing. Such representatives shall supervise the work and help
ensure that the resplicing occurs according to commercially reasonable quality
standards. The parties agree that, except in unusual circumstances, no more than
two MFS representatives would need to be present for this work.

(iii) RCN shall reimburse MFS for any documented, commercially reasonable costs
associated with time spent by MFS or its affiliate’s employees and contractors in
supervising the resplicing efforts involved in the return of the Relinquished Fibers
to MFS; provided that RCN’s total aggregate obligation and liability to MFS in
connection with the reimbursement of MFS for activities relating to the return of
Relinquished Fibers shall not exceed *******. Any personnel
charges shall be calculated at the current billable rate for all MFS or its
affiliate’s employees and contractors involved. MFS shall invoice RCN for all such
charges and such charges shall be paid by RCN within thirty (30) days after receipt
by RCN of the invoice(s).




6. Recurring Charges and WorldCom Maintenance Costs. In consideration of the
mutual obligations contained in this Amendment, MFS, its parent company, affiliates,
subsidiaries, directors, officers and employees shall release and forever hold harmless RCN,
its parent company, affiliates, subsidiaries, directors, officers and employees from any
claim, cause of action or right to payment associated with obligations RCN has or may have
had relating to Recurring Charges or WorldCom Maintenance Costs that might be owed by RCN,
or could have been assessed by MFS, during the original term (May 8, 1997-January 1, 2007)
of the Agreement. The parties specifically confirm and acknowledge that RCN does not owe
MFS any Recurring Charges or WorldCom Maintenance Costs under the Agreement.




7.  Effective Date of Amendment. This Amendment shall be effective as of
January 2, 2007 (“Amendment Effective Date”).




8. Savings Provision. Except as expressly provided herein, the Agreement shall
remain in full force and effect as originally written.




9. 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:



 






* Confidential material which has been omitted
and filed separately with the Securities and Exchange Commission.


 


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	If to MFS:

	 	Metropolitan Fiber Systems of New York, Inc.
	 

	 	Attn: Group Manager
	 

	 	Department 63353/107
	 

	 	2400 N. Glenville Dr.
	 

	 	Richardson, TX 75082
	 
	 	 
	with a copy to:

	 	Metropolitan Fiber Systems of New York, Inc.
	 

	 	Attn: Legal and External Affairs
	 

	 	2400 N. Glenville Dr.
	 

	 	Richardson, TX 75082
	 
	 	 
	If to RCN:

	 	RCN Telecom Services, Inc.
	 

	 	196 Van Buren Street
	 

	 	Herndon, VA 20170
	 

	 	ATTN: Vice President of Network Operations
	 
	 	 
	with a copy to:

	 	RCN Telecom Services, Inc.
	 

	 	196 Van Buren Street
	 

	 	Herndon, VA 20170
	 

	 	ATTN: General Counsel







10. 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.



	 	 	 	 	 	 	 
	METROPOLITAN FIBER SYSTEMS OF NEW YORK, INC.	 	RCN TELECOM SERVICES, INC.
	 
	 	 	 	 	 	 
	/s/ Ihab Tarazi	 	/s/ Peter Aquino
	 	 	 
	Name: Ihab Tarazi

	 	 	 	Name: Peter Aquino	 	 
	 

	 	 
	 	 	 	 
	Title: Vice President

	 	 	 	Title: President and CEO	 	 
	 

	 	 
	 	 	 	 
	Date: December 12, 2007

	 	 	 	Date: December 5, 2007	 	 
	 

	 	 
	 	 	 	 





 


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Revised Exhibit 5




RCN Dedicated Fibers




The RCN Dedicated Fibers are shown on the attached diagram and are as follows:



	 	 	 	 	 	 	 
	Loop H

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles
	H-Sub Loop

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles
	Loop K

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles
	Loop L

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles
	Loop R2

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles
	Loop S

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles
	Loop T

	 	****** (****** Miles)
	 	*** Fibers
	 	**** Fiber Miles






******* Total Fiber Miles




 






* Confidential material which has been omitted
and filed separately with the Securities and Exchange Commission.




 


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