EXHIBIT 10.36
AGREEMENT FOR THE PURCHASE AND SALE OF OPTICAL AMPLIFIER AND
DENSE WAVELENGTH DIVISION MULTIPLEXING EQUIPMENT
BETWEEN
PIRELLI CABLES AND SYSTEMS LLC ("PIRELLI")
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
- and -
DIGITAL TELEPORT, INC. ("DIGITAL TELEPORT")
00000 Xxxxxxx Xx.
Xx. Xxxxx, XX 00000
THIS AGREEMENT ("Agreement"), dated as of the 1st day of September, 1998,
is by and among Pirelli and DIGITAL TELEPORT. (DIGITAL TELEPORT is sometimes
hereinafter referred to as "Purchaser".)
WHEREAS, Purchaser desires to purchase from Pirelli and Pirelli desires to
sell to Purchaser certain Equipment and Expansion Equipment (each as hereinafter
defined), subject to the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and promises hereinafter set forth, the parties hereby agree as
follows:
1. Term. The term of this Agreement (the "Initial Term") shall be for a period
of three (3) years, commencing on the date hereof and expiring on the third
anniversary date hereof, unless earlier terminated pursuant to the terms
hereof. Assuming that there are no existing defaults on the part of
Purchaser at the time of renewal, Purchaser and Pirelli may by written
agreement renew the Initial Term of this Agreement year to year ("Renewal
Term"). Purchases during such Renewal Term shall be made at a price agreed
to in writing by Pirelli and Purchaser prior to the commencement of the
Renewal Term and pursuant to the other provisions of Section 3.1 of this
Agreement. Purchaser's notice of renewal shall be given not more than one
hundred and twenty (120) calendar days nor less than sixty (60)calendar
days prior to the end of the Initial Term and subsequent Renewal Terms
hereof.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
2. Purchase of Equipment.
2.1. Agreement to Purchase and Sell. Throughout the Initial Term and any
Renewal Terms (collectively the "Term") of this Agreement, Pirelli
agrees to sell to Purchaser and Purchaser agrees to purchase from
Pirelli optical amplifier and wavelength division multiplexing
equipment at the prices as set forth in Schedule A attached hereto and
incorporated herein by reference (the "Equipment"), subject to the
terms and conditions set forth herein. All Equipment furnished by
Pirelli shall be in conformance with the technical specifications set
forth in Appendix A, attached hereto and incorporated herein by
reference. Purchaser may at its option purchase from time to time and
Pirelli agrees to sell to Purchaser additional equipment at the prices
set forth on Schedule B attached hereto and incorporated by reference
("Expansion Equipment").
2.2. Primary Supplier. *** so long as Pirelli is not in default under the
terms and conditions of this Agreement, Purchaser shall purchase from
Pirelli at least eighty percent (80%) of its network requirements for
optical amplifier and wavelength division multiplexing equipment
having channel capacity or other technical capabilities equal to or
less than the Equipment and Expansion Equipment during the Term of
this Agreement. Failure to comply with this provision shall be a
material breach of this Agreement.
2.3 ***
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Exchange Commission.
Asterisks denote ommissions.
Notwithstanding any other provision herein, unless DTI expressly
states otherwise in writing the terms of this Agreement including, but
not limited to the purchase requirements of Section 2.2 *** shall not
apply to the purchase by DTI of optical amplifier or wavelength
division multiplexing equipment for use on the following network
routes: (i) St. Louis, Missouri to Columbia, Missouri to Kansas City,
Missouri, (ii) St. Louis, Missouri to Lebanon, Missouri, to
Springfield, Missouri to Joplin, Missouri, (iii) Columbia, Missouri to
Jefferson City, Missouri to Lebanon, Missouri, (iv) Kansas City,
Missouri to Rockport, Missouri to Bethany, Missouri and back to Kansas
City, Missouri, (v) Joplin, Missouri to Bentonville, Arkansas to Ft.
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Exchange Commission.
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Xxxxx, Arkansas to Little Rock, Arkansas to Memphis, Tennessee to St.
Louis, Missouri, and (vi) Springfield, Missouri to Harrison, Arkansas
to Bentonville, Arkansas.
3. Prices
3.1. Prices. The prices to be paid by Purchaser for Equipment and
Expansion Equipment ordered under this Agreement are set forth in
Schedule A and Schedule B hereto, respectively. The unit prices
listed in Schedule A and Schedule B do not include applicable
sales and use taxes, such taxes to be added to an invoice and
paid for by Purchaser. ***
4. Orders and Payment.
4.1. Orders. Purchaser will, from time to time during the Term, order
Equipment and Expansion Equipment from Pirelli pursuant to this
Agreement by executing and delivering a Purchaser's Purchase
Order ("Purchase Order"). Purchase Orders may be sent by
facsimile or EDI as may be agreed to by the parties. In the event
of a conflict or inconsistency between the terms and conditions
of a Purchase Order and this Agreement, the terms and provisions
of this Agreement shall control to the extent of the conflict or
inconsistency.
4.2. Invoicing. Pirelli shall invoice all shipments within ten (10)
days after shipment. Purchaser shall promptly notify Pirelli in
writing or electronically of any disputed amounts shown on an
invoice. Pirelli and Purchaser shall work diligently to resolve
any disputes.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
4.3. Payment. Payment to Pirelli on all invoices shall be due within
thirty (30) days from date of invoice. A one percent (1%)
discount shall be granted by Pirelli for payment within ten (10)
days of the invoice date. Any payments not received by Pirelli
within such thirty-day (30) period shall accrue interest from the
date of invoice to the date of receipt of payment at the rate of
one percent (1%) per month, computed for the actual number of
days outstanding, based upon a thirty-day (30) month.
5. Delivery.
5.1. Delivery Schedule. For the twelve (12) month period beginning on
the date of this Agreement, upon receipt of a Purchase Order,
Pirelli will provide to Purchaser an acknowledgment of such
receipt within 3 business days which will contain a delivery date
for such order which will be within *** of the date of
acknowledgment of such Purchase Order. Pirelli will ship
Equipment ex-factory within *** of its acknowledgment of a
Purchase Order, provided that Purchaser's aggregate orders for
the month in which delivery is required by Pirelli does not
exceed Purchaser's forecast for that month (as contained in the
first quarterly forecast for such month pursuant to Section 7)
***.
For the period beginning on the date which is twelve (12) months
after the date of this Agreement until the end of the Term, upon
receipt of a Purchase Order, Pirelli will provide to Purchaser an
acknowledgment of such receipt within 3 business days which will
contain a delivery date for such order which will be within ***
of the date of acknowledgement of such Purchase Order. Pirelli
will ship Equipment ex-factory within *** of its acknowledgment
of a Purchase Order, provided that Purchaser's aggregate orders
for the month in which delivery is required by Pirelli does not
exceed Purchaser's forecast for that month (as contained in the
first quarterly forecast for such month pursuant to Section 7)
***.
If at any time an order causes the aggregate amount for that
month to exceed the forecast for that month, Pirelli shall use
its commercially reasonable efforts to deliver the Equipment
ordered as promptly as possible, and shall inform Purchaser of an
expected delivery date. Purchaser may from time to time request
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Exchange Commission.
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that Pirelli make delivery within a shorter period, and
Pirelli will exercise its commercially reasonable efforts to meet
any such request. Pirelli will review and confirm on a monthly
basis each delivery schedule established to meet Purchaser's
requirements.
5.2. Shipping and Delivery Arrangements. The unit prices listed in
Schedule A and Schedule B are shown in U.S. dollars, FOB
Destination indicated by Purchaser within the continental United
States and shipped via standard electronics van when appropriate
or other ground transportation or airborne courier. Pirelli shall
be responsible for all shipping arrangements and may ship partial
lots prior to the acknowledged ship date. Any expedited shipping
charges requested by Purchaser shall be the responsibility of the
Purchaser. Purchaser shall be responsible for all off-loading
activities at Destination indicated by Purchaser and any expenses
incurred due to delay in such off-loading. Pirelli shall notify
Purchaser as soon as practicable if for any reason Pirelli
believes it will be unable to meet a scheduled delivery date.
5.3 Installation and Testing. Pirelli will perform all installation
and testing of Equipment ***.
6. Training. Pirelli shall provide training, training materials; service
and technical manuals sufficient to provide each site at which
Equipment is installed with a copy, and support to Purchaser to enable
Purchaser to train ***. Purchaser shall have the right to reproduce
training material for the sole purpose of training Purchaser's
employees. Such rights shall include photographic, video, and audio
recordings of any training or training material provided that all
copies in any media shall clearly indicate such as copy-righted
material of Pirelli. These restrictions apply equally to any outside
consultants or training service to be used by Purchaser.
7. Forecast of Needs. Purchaser agrees to provide Pirelli *** during the
Term with an estimate of its orders for each type of Equipment and
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Exchange Commission.
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Expansion Equipment for each month during the twelve (12) months
following the date of such forecast, and shall also provide to Pirelli
each month during the Term a forecast of expected Equipment and
Expansion Equipment orders for each month *** following the date of
such forecast. This information will be used by Pirelli to plan and
allocate its inventory and production capacity to ensure that
Equipment and Expansion Equipment is manufactured and delivered when
required. *** Purchaser shall provide to Pirelli its first such
forecasts of its Equipment and Expansion Equipment orders no later
than thirty (30) days after the date of this Agreement.
8. Force Majeure. Any delay or failure of either party to perform its
obligations under this Agreement shall be excused if, and to the
extent that, the delay or failure is caused by an event or
circumstance beyond the reasonable control of such party and without
its fault or negligence such as, by way of example and not by way of
limitation, acts of God, action by any governmental authority, fires,
floods, windstorms, explosions, riots, natural disasters, wars,
sabotage, labor problems (including lock-outs, strikes and
slow-downs), inability to obtain power, material, labor,
transportation or court injunction or order ("Force Majeure"). Written
notice of delay (including the anticipated duration of the delay)
shall be given by the affected party to the other party within ten
(10) calendar days of the occurrence of the said event or
circumstance. Notwithstanding any other provision herein, if an event
constituting a Force Majeure shall remain unresolved for a period of
more than sixty (60) days, then the party not claiming excuse from
delay or failure to perform its obligations due to such Force Majeure
may terminate this Agreement upon written notice to the other party,
provided, however, that in the event that a Force Majeure continues
for a period of more than thirty (30) days then Purchaser may purchase
Equipment from a third party notwithstanding Section 2.2 herein.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
9. Representations and Warranties.
9.1. Product Warranty. Pirelli warrants that all goods sold hereunder shall meet
the product specifications and will be free from defects in material and
workmanship for *** Provided written notice of failure to meet the
specifications or of any such defect in materials or workmanship is given
to Pirelli by Purchaser within the above stated warranty period and Pirelli
determines such failure or defect exists, Pirelli's sole responsibility
under the above warranty will be limited to the replenishment of such goods
as do not substantially conform to specifications therefore, or which are
defective as to materials or workmanship. All replenishments by Pirelli
pursuant to the foregoing sentences shall be made free of charge, F.O.B.
Destination called for in the original contract.
9.2. No Infringement. Pirelli represents and warrants that neither the Equipment
nor Expansion Equipment nor its use by Purchaser in the manner intended
infringes on the intellectual property rights of any third party. Pirelli
will defend or settle at its own expense any action brought against
Purchaser to the extent that it is based on a claim that any Equipment or
Expansion Equipment supplied by Pirelli infringes on the intellectual
property rights of any third party, and will pay any costs and damages
finally awarded.
9.3 LIMITATION OF LIABILITY. THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF, AND
PIRELLI DISCLAIMS ANY AND ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY
OR AT COMMON LAW, EXPRESS OR IMPLIED, INCLUDING SPECIFICALLY BUT WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, PIRELLI SHALL BE LIABLE UNDER THE ABOVE STATED WARRANTIES ONLY
FOR REPLENISHMENT OF EQUIPMENT AND EXPANSION EQUIPMENT, AND THE REASONABLE
LABOR COSTS FOR REMOVING AND/OR FOR REINSTALLATION OF THE SAME, AND SHALL
NOT IN ANY EVENT BE LIABLE FOR ANY OTHER REMOVAL OR REINSTALLATION COSTS OF
EQUIPMENT AND EXPANSION EQUIPMENT. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL
PIRELLI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT
DAMAGES INCURRED BY PURCHASER, ITS CUSTOMERS, OR ANYONE CLAIMING THROUGH
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Exchange Commission.
Asterisks denote ommissions.
PURCHASER (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, USE, PRODUCTION,
RAW MATERIALS OR END PRODUCTS) OR FOR ANY OTHER CLAIM FOR DAMAGES ARISING
OUT OF THE PURCHASE, DELIVERY, INSTALLATION, REMOVAL OR USE OF EQUIPMENT OR
EXPANSION EQUIPMENT, WHETHER CLAIMED IN CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE.
10. Technological Change. During the Term of this Agreement, Pirelli agrees to
keep Purchaser apprised of new technical developments, or improvements
available with respect to the Equipment or Expansion Equipment, and to make
these new developments or improvements available to Purchaser in a timely
manner. ***
11. Confidential Information/Non-Disclosure Agreement.
The parties acknowledge their mutual obligations of confidentiality
pursuant to the Confidentiality Agreement between the parties dated June
24, 1998, and hereby incorporate herein the terms of such Confidentiality
Agreement, a copy of which is attached hereto as Schedule C.
12. Termination.
12.1.Right to Terminate. Subject to the provisions of Section 8 hereof,
either party shall have the right to terminate this Agreement at any
time by notice in writing to the other in the event of any of the
following:
12.1.1. a material breach by a non-terminating party of any of its
representations, warranties, covenants or agreements contained
herein, and
12.1.1.1. the breaching party fails, where remedy is possible
within thirty (30) days, to remedy the breach (i) *** or
(ii) in the case of any other breach, within thirty (30)
days of being requested to do so in writing by the
non-breaching party; or
Ex-9
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
12.1.1.2. the breaching party fails, where remedy is not
reasonably possible within thirty (30) days, to propose a
plan no later than the end of such thirty (30) day period,
which plan is reasonably capable of providing a cure of the
breach within thirty (30) days of the proposal's being made,
or fails diligently and continuously to execute the plan to
remedy the breach; or
12.1.1.3. the breach is not capable of being remedied either at
all or within thirty (30) days of the non-breaching party's
demand for remedy; OR
12.1.1.4. the making by a party of a general assignment for the
benefit of its creditors, the filing of a voluntary petition
in bankruptcy or the filing of a petition in bankruptcy or
other insolvency protection against that party which is not
dismissed within ninety (90) days thereafter, or the filing
by a party of any petition or answer seeking, consenting to,
or acquiescing in reorganization, arrangement, adjustment,
composition, liquidation, dissolution, or similar relief, or
the issuance of an order, all appeals of which order have
been exhausted or the time for appeal of which order has
passed without the filing of such appeal, or the passing by
the governing body of a party of a resolution for the
winding-up of that party's business.
12.1.2. In addition to the right to terminate this Agreement pursuant
to Sections 12.1.1.1 or 12.1.1.2 for the non-delivery by Pirelli
of Equipment or Expansion Equipment pursuant to a Purchase Order
complying with the requirements with respect to forecasted orders
as set forth in Section 5.1 and receipt of which has been
acknowledged by Pirelli, ***
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Exchange Commission.
Asterisks denote ommissions.
12.1.3. ***
12.2.Survival of Rights and Obligations. Termination of this Agreement
shall not prejudice any rights of either party hereto against the
other which may have accrued up to the date of termination. In
addition, all covenants respecting indemnification, confidentiality,
termination and continuing liability for amounts payable hereunder
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Exchange Commission.
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shall survive the termination of this Agreement as expressly set forth
elsewhere herein.
12.3.Continued Entitlement to Payment. In the event this Agreement expires
or is terminated by either party hereto, Pirelli shall be entitled to
payment for Equipment and Expansion Equipment delivered by Pirelli up
to the date of termination or expiration. If this Agreement is
terminated by Purchaser, Pirelli shall be also entitled to payment for
Equipment and Expansion Equipment ordered by Purchaser, but not yet
delivered on the date of termination, provided that the Agreement has
not been terminated for failure of Pirelli to comply with the delivery
date requirements of Section 5.1 for such Equipment or Expansion
Equipment. In all cases, Pirelli's entitlement to payment for such
delivered, or ordered but not yet delivered, Equipment shall remain
subject to the terms and conditions of this Agreement, which shall
continue to apply to such Equipment. In the event and to the extent
that at the time of termination or expiration of this Agreement,
Pirelli shall have received payment in excess of the amount to which
it is entitled under this Agreement, Pirelli shall refund to
Purchaser, such excess within thirty (30) days after the date of
termination or expiration.
13. Title to Equipment and Expansion Equipment. Pirelli covenants, represents
and warrants that upon acceptance of Equipment by Purchaser, title to the
Equipment and Expansion Equipment shall vest in Purchaser, free and clear
of all liens, claims and encumbrances of any kind, other than the purchase
money security interest of Pirelli or any successors or assignees of such
purchase money security interest and related receivable. Upon payment in
full for the Equipment and Expansion Equipment, title to the Equipment and
Expansion Equipment shall be free and clear of all liens, claims and
encumbrances of any kind including any purchase money security interest of
Pirelli or any successors or assignees of such purchase money security
interest and related receivable.
14. Notices. Unless stated otherwise herein, all notices required by or
relating to this Agreement shall be in writing and shall be sent to the
parties to this Agreement at their addresses set forth below unless changed
from time to time by notice complying with this Section 14. All such
notices shall be hand-carried, or sent by certified or registered mail
return receipt requested and postage prepaid, or sent by facsimile, or
delivered by courier, directed to the other party at address set forth
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Exchange Commission.
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below, as changed from time to time in accordance with the provisions of
this section:
If to Pirelli: Pirelli Cables and Systems LLC
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Sr. Vice President & General Manager
Facsimile Number: (000) 000-0000
If to Purchaser: DIGITAL TELEPORT, INC.
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxxxxx, President
Facsimile: (000) 000-0000
with a copy to: DIGITAL TELEPORT, INC.
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxx, XX 00000
Attention: Vice President-Corporate Legal
Facsimile: (000) 000-0000
All such notices shall be deemed to have been given at the time of
actual receipt thereof. Facsimile notices shall be deemed received at
the time of an electronic confirmation of successful transmission.
15. General Terms.
15.1. Binding and Benefit. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their respective successors
and permitted assigns.
15.2. Amendments, etc. No waiver, alteration, modification or
cancellation of any of the provisions of this Agreement shall
be binding unless made in writing and signed by all parties.
15.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of
Missouri, without respect to the choice of law or conflicts of
law provisions therein.
15.4. No Waiver. The delay or failure of either party at any time or
times to require performance of any provision hereof shall in
no manner affect or constitute a waiver of such party's right
at a later time to enforce such provision. No delay or failure
of either party in exercising any right hereunder shall
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Exchange Commission.
Asterisks denote ommissions.
constitute a waiver of such right or any other rights hereunder.
15.5.Limitation on Actions. No action, regardless of form, arising
out of this Agreement may be brought: (i) for warranty claims
more than one year after such party has actual knowledge of the
cause of action but no later than one (1) year after the warranty
period has expired, or (ii) for all other claims more than one
(1) year after the cause of the action has accrued.
15.6.Severability. In the event that one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions contained in this Agreement.
15.7.Headings. The headings used throughout this Agreement are solely
for convenience of reference and are not to be used as an aid in
the interpretation of this Agreement.
15.8.Complete Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter
hereof, and supersedes all prior oral and written agreements and
understandings relating thereto. No representation, condition,
understanding, statement of intent or agreement of any kind, oral
or written, shall be binding upon the parties unless set forth or
specifically incorporated herein.
15.9.Remedies Cumulative. No remedy referred to in this Agreement is
intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to herein or otherwise
available at law or in equity.
16. Filings. Pirelli may, at its option and expense, file with the proper
authorities, whatever financing statements, other security agreements, or
other such documents as may be necessary under the Uniform Commercial Code
(UCC) and applicable state law, including but not limited to, UCC Section
9-312(3) regarding purchase money security interest to perfect and secure
its or its assignee's interest in the Equipment and Expansion Equipment and
any payments for the Equipment and Expansion Equipment by Purchaser prior
to payment by Purchaser to Pirelli, and Purchaser agrees to cooperate fully
with any such filings and take whatever reasonable actions are necessary to
protect such interest, including but not limited to any required financial
statements, filings or other such documents. Pirelli will promptly remove
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any such lien or evidence of security interest upon payment by Purchaser to
Pirelli for such Equipment.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
PIRELLI CABLES
AND SYSTEMS, LLC DIGITAL TELEPORT, INC.
/s/ Xxxxxx Xxxxxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------ ------------------------
Xxxxxx Xxxxxxxxxxxx Xxxxxxx X. Xxxxxxxxx
President & Chief Executive Officer President & Chief Executive Officer
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SCHEDULE A
TO
AGREEMENT FOR PURCHASE AND SALE OF EQUIPMENT
BETWEEN
PIRELLI CABLES AND SYSTEMS LLC
AND
DIGITAL TELEPORT, INC.
EQUIPMENT
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LIST DTI ***% DISCOUNT ***% DISCOUNT
MODULES: PRICE PRICE VAULE VALUE
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LIST DTI ***% ***%
DISCOUNT DISCOUNT
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Exchange Commission.
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SCHEDULE B
TO
AGREEMENT FOR PURCHASE AND SALE OF EQUIPMENT
BETWEEN
PIRELLI CABLES AND SYSTEMS LLC
AND
DIGITAL TELEPORT, INC.
EXPANSION EQUIPMENT
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Ex-18
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
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MODULES: PRICE MODULES: PRICE MODULES: PRICE
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Ex-19
Confidential Materials omitted and files separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
SCHEDULE C
TO
AGREEMENT FOR PURCHASE AND SALE OF EQUIPMENT
BETWEEN
PIRELLI CABLES AND SYSTEMS LLC
AND
DIGITAL TELEPORT, INC.
Confidentiality Agreement
Ex-20
Confidential Materials omitted and files separately with the Securities and
Exchange Commission.
Asterisks denote ommissions.
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made this 24th day of June, 1998, by and between Pirelli
Cables and Systems LLC, a Delaware limited liability company, and Digital
Teleport, Inc., a Missouri corporation. "Disclosing Party" is defined as the
party hereto disclosing confidential information to the other party in
connection with the potential transaction between the parties hereto, and the
"Recipient" is defined as the party hereto receiving the confidential
information from such Disclosing Party in connection with the potential
transaction between the parties hereto.
RECITALS
A. Each Disclosing Party possesses certain confidential and proprietary
information as described below (the "Proprietary Information"), which derives
independent economic value, actual or potential, to Disclosing Party from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use.
B. In connection with a possible purchasing relationship between Recipient
and Disclosing Party, Disclosing Party is willing to provide certain of its
Proprietary Information to the Recipient. It is a condition to the Disclosing
Party providing such Proprietary Information to the Recipient, that the
Recipient enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
Section 1. "PROPRIETARY INFORMATION" DEFINED
(a) For purposes of this Agreement, the term "Proprietary
Information" shall mean all information and materials disclosed to the
Recipient by the Disclosing Party or any other information that the
Disclosing Party treats or maintains as confidential, proprietary,
restricted or otherwise as not to be disclosed generally, whether received
by the Recipient prior or subsequent to the signing of this Agreement.
Proprietary Information includes, but is not limited to, the fact of a
possible transaction between the Recipient and the Disclosing Party and any
and all information and materials concerning the Disclosing Party's
current, future or proposed products and services, including without
limitation any and all information and materials relating to the Disclosing
Party's business, including, without limitation, financial, accounting,
statistical and numerical information, contracts with customers and
vendors, technical specifications, plans for business development,
organizational data, and marketing plans and strategies, sales data,
unpublished promotional material, cost and pricing information, and
customer lists, in whatever form, manner or medium recorded (if recorded),
including any and all copies thereof as have been or may be provided to the
Ex-21
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Recipient by or on behalf of the Disclosing Party, any of its affiliates,
officers, directors, shareholders, employees, agents or representatives or
from any other source.
(b) All information or materials disclosed to the Recipient by the
Disclosing Party shall be considered Proprietary Information hereunder
unless the Recipient shall be able to establish that such information
and/or materials (a) were known to the public at the time of disclosure
to the Recipient; (b) became known to the public after disclosure to
the Recipient through no fault of the Recipient or its affiliates,
officers, directors, shareholders, employees, agents or
representatives; (c) were rightfully in the Recipient's possession
prior to disclosure to the Recipient; (d) were rightfully acquired by
the Recipient from a third party who was lawfully in possession of the
information and was under no obligation to the Disclosing Party or any
other party to maintain the confidentiality thereof; (e) were
independently developed by the Recipient without the benefit or use of
any Proprietary Information; or (f) are required to be disclosed by the
Recipient by regulation or court order; if an event described in (f)
arises, then the Recipient agrees to use reasonable efforts to provide
the Disclosing Party with written notice of such potential disclosure,
prevent such disclosure, and provide the Disclosing Party with a
reasonable opportunity to secure the confidential protection thereof.
Section 2. OBLIGATION OF CONFIDENTIALITY
(a) Recipient shall initially disclose Proprietary Information
only to those directors, officers, employees, agents, attorneys,
accountants, advisors, affiliates, and other representatives
(collectively, the "Representatives") set forth on Schedule A hereto,
which may be amended by the parties from time to time in writing upon
mutual agreement. Nothing in this Section 4 shall supercede the
additional obligations with respect to the disclosure of Proprietary
Information to Representatives set forth in Section 3 hereof. At such
time as Disclosing Party shall agree in a writing which specifically
references this Agreement. Recipient may issue a press release, in a
form specifically approved by Disclosing Party, regarding such portions
of the Proprietary Information specified in such writing.
(b) All Proprietary Information (including all copies thereof)
shall remain the exclusive property of the Disclosing Party, and shall
be returned to the Disclosing Party on the earlier of (i) written
demand therefor sent by the Disclosing Party to the Recipient; or (ii)
after Recipient's need for it, consistent with the performance, or
termination of discussions regarding, of the potential transaction
between the parties, has expired.
(c) Recipient hereby acknowledges that all Proprietary Information is
considered confidential by, and is considered exclusively proprietary
Ex-22
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
to and a valuable trade secret of the Disclosing Party, and derives
independent economic value, actual or potential, to the Disclosing
Party from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use. As between Recipient and
the Disclosing Party, all proprietary rights (including but not
limited to copyrights and trade secrets) in and to the Proprietary
Information shall remain the property of the Disclosing Party.
Section 3. INJUNCTION
The Recipient hereby acknowledges and agrees that any Proprietary
Information disclosed to the Recipient is considered by the Disclosing Party to
be of a special, unique and proprietary character, and that any breach or
threatened breach of any provision of this Agreement may cause the Disclosing
Party irreparable harm for which monetary damages may be inadequate. The
Recipient agrees, therefore, on behalf of itself and its affiliates, officers,
directors, shareholders, employees, agents and representatives that the
Disclosing Party shall be entitled to injunctive relief to prevent or restrain
any such breach or any threatened or continued breach of this Agreement, or any
part hereof, and to secure the enforcement of this Agreement. Such injunctive
relief shall be in addition to and without limitation of all other remedies at
law or in equity available to the Disclosing Party.
Section 4. NO RIGHTS GRANTED
The Recipient understands and agrees that this Agreement does not
constitute a grant by the Disclosing Party or an intention or commitment on the
part of the Disclosing Party to enter into any transaction or to grant any
right, title or interest in the Proprietary Information to the Recipient, or any
affiliate, officer, director, shareholder, employee, agent or representative
thereof.
Section 5. NO AGENCY
This Agreement does not create any agency, partnership or joint venture
relationship between the parties.
Section 6. NO WAIVER
No waiver by any party of any right or of a breach of any provision of
this Agreement shall constitute a waiver of any other right or breach of any
other provision, nor shall it be deemed to be a general waiver of such provision
by such party or to sanction any subsequent breach thereof by any other party.
Ex-23
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Section 7. NO OBLIGATION TO PROVIDE PROPRIETARY INFORMATION
Nothing in this Agreement shall be construed to require the Disclosing
Party to provide, or to entitle Recipient to obtain, any Proprietary
Information.
Section 8. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement among the parties as to the
subject matter hereof, and none of the terms of this Agreement shall be amended
or modified except in writing signed by the parties.
Section 9. SEVERABILITY
If any provision or provisions of the Agreement shall be found to be
illegal or unenforceable for any reason, such provision or provisions shall be
modified or deleted in such a manner to make this Agreement enforceable, and the
balance of the Agreement shall be construed as severable, independent, and
separately enforceable.
Section 10. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the
State of Missouri, without giving effect to the principles thereof regarding the
choice of law or conflicts of laws.
Section 11. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns.
Section 12. TERM
This Confidentiality Agreement shall terminate on the earlier of (a)
thirty-six (36) months from the earlier of the date of this Agreement, or (b) at
such earlier time as both parties may mutually agree upon.
Ex-24
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PIRELLI CABLES AND SYSTEMS LLC
By:/s/ Xxxxxx X. Xxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxx, III
-----------------------------------
Title: Vice President, Sales & Marketing
----------------------------------
DIGITAL TELEPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive
Officer
Ex-25
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
APPENDIX A
SPECIFICATIONS
WAVEMUX(TM) 6400 DENSE DWDM SYSTEM
SYSTEM OVERVIEW
Publication Number: SOV-WM6400A_-02A
Issue Date: August 98
PIRELLI
A R C H I T E C T S O F L I G H T (TM)
* * *
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions (52 pages).
