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EXHIBIT 10.34
[LOGO GLOBAL CROSSING]
March 23, 1999
Xx. Xxxx Xxxx
CTO
AboveNet Communications
00 X. Xxx Xxxxxxxx Xx. #0000
Xxx Xxxx, XX 00000
XXX
Dear Xx. Xxxx:
This letter confirms our understanding with respect to the sale by Global
Crossing International Ltd. and/or its affiliates ("GCI") to AboveNet
Communications, Inc. ("AboveNet") of capacity on GCI's Pan European network
("PEC").
Purchased Capacity.
GCI hereby agrees to sell (or cause its affiliates to sell) and ABOVENET hereby
agrees to purchase on the RFS Date (to be defined) for PEC [*] (the "Purchased
Capacity") consisting of indefeasible rights of use ("IRUs") for point-to-point
capacity on the following PEC city-to- city segments (GCI PoP to GCI PoP) as
follows:
(1) [*]
(2) [*]
(3) [*]
The aggregate purchase price (the "Purchase Price") for the Purchase Capacity
shall be [*] provided however, if ABOVENET does not enter into a
global network offer within [*] days of the date hereof with Global Crossing
Holdings Ltd. for an [*] the aggregate
purchase price for the Purchased Capacity shall be increased to $7.5 million.
The Purchase Price shall be paid as follows (i) [*] of the Purchase Price shall
be payable on the date this letter agreement is executed by ABOVENET and (ii)
[*] million shall be payable just prior to activation of the circuit but no
later than April 30, 1999 (iii) the balance of the Purchase Price shall be
financed over a [*] period at the rate of 10.5% with net payable on
or before December 30, 1999. Interest payments shall be made on the 5th of
every month. If tail circuits are required to connect the Purchased Capacity to
ABOVENET's local PoP, GCI agrees to assist ABOVENET in obtaining such
connectivity, all at ABOVENET's expense.
Maintenance payments shall be payable in accordance with the [*] Capacity
Purchase Agreement.
Documentation.
ABOVENET and GCI and/or its affiliates shall enter into capacity purchase
agreements with respect to the Purchased Capacity promptly after the execution
of this letter agreement, but not later than April 30, 1999.
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*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Miscellaneous.
This letter agreement shall be governed by and construed in accordance with the
laws of the State of New York.
This letter agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which, when taken together, shall
constitute one agreement.
This letter agreement may not be amended or waived except in an instrument in
writing and signed by each of the parties hereto.
This letter agreement shall be binding upon each of the parties hereto and
their respective successors and permitted assigns. Neither party hereto shall
be permitted to assign any of their rights or obligations hereunder without the
other party's prior written consent, provided, however, (i) GCI may assign and
delegate any and all of its rights and obligations hereunder to its affiliates
and (ii) ABOVENET may, without relieving it of its obligations hereunder,
assign its rights hereunder to its wholly-owned subsidiaries.
ABOVENET shall keep the provisions of this letter agreement and any non-public
information, written or oral, with respect to this Agreement ("Confidential
Information") confidential and shall not disclose Confidential Information, in
whole or in part, to any person other than affiliates, officers, directors,
employees, agents or representatives of ABOVENET (collectively,
"Representatives") who need to know such Confidential Information for the
purpose of negotiating, executing and implementing this letter agreement.
ABOVENET agrees to inform each of its Representatives of the non-public nature
of the Confidential Information and to direct such persons to treat such
Confidential Information in accordance with this paragraph. Nothing herein
shall prevent ABOVENET from disclosing Confidential Information (i) upon the
order of any court or administrative agency, (ii) upon the request or demand
of, or pursuant to any regulation of, any regulatory agency or authority or
(iii) to a party's legal counsel or independent auditors. ABOVENET shall not
make any public announcement regarding this letter agreement or the terms
hereof, without the prior written consent of GCI.
If the foregoing correctly sets forth our understanding, please indicate your
agreement to be bound by the terms hereof by signing in the space indicated
below.
GLOBAL CROSSING HOLDINGS LTD.
By: /s/ X. Xxxxxx Xxxxxxx
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Name: X. Xxxxxx Xxxxxxx
Title: President
AGREED AND ACCEPTED:
ABOVENET COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: CTO
Agreement subject to satisfactory
completion of the European ring
agreement before April 2, 1999.
Timeframe may be extended by mutual
consent. Terms are to be no less
favorable on future orders.
[initials]
