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EXHIBIT 10.35
AGREEMENT FOR PURCHASE AND SALE OF EQUIPMENT
BETWEEN
PIRELLI CABLES AND SYSTEMS LLC ("PIRELLI")
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- and -
DIGITAL TELEPORT, INC. ("DIGITAL TELEPORT")
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THIS AGREEMENT ("Agreement"), dated as of the 26th of June, 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 (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 "Term") shall be for a period of
two (2) years, commencing on the date hereof and expiring on the second
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 may renew the Term of
this Agreement year to year ("Renewal Term") by giving written
notification of renewal to Pirelli. Purchases during such Renewal Term
shall be made at a price agreed to by Pirelli prior to the commencement
of the Renewal Term and pursuant to the other provisions of Section 3.1
of this Agreement. Such 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.
2. Purchase of Equipment.
2.1. Agreement to Purchase and Sell. Throughout the Term and any
Renewal Term of Agreement, Pirelli agrees to sell to
Purchaser and Purchaser agrees to purchase from Pirelli
outside plant cable set forth in Schedule A
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
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manufactured by Pirelli containing fiber manufactured by
Corning of the types set forth on Schedule B 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 Schedule B,
attached hereto and incorporated herein by reference.
Purchaser may at its option purchase from time to time and
Pirelli agrees to sell to Purchaser fiber optic cable
accessories of the types and at the prices set forth on
Schedule E attached hereto and incorporated by reference.
2.2. Exclusive Supplier. Except as set forth in Section 3.1 below,
Purchaser agrees that, so long as Pirelli is not in default
under the terms and conditions of this Agreement, Purchaser
shall purchase all of its Equipment requirements from Pirelli
during the Initial Term and any Renewal Term of this
Agreement. Failure to comply with this provision shall be a
material breach of this Agreement.
3. Prices
3.1. Prices. The initial prices to be paid by Purchaser for
Equipment ordered under this Agreement are set forth in
Schedule A hereto. The unit prices listed in Schedule A are
shown in U.S. dollars, FOB Destination (in the continental
United States), and do not include applicable sales and use
taxes. The prices stated in Schedule A shall not be increased
during the first twelve (12) months of the Term of this
Agreement. Notwithstanding any other provision herein, in the
event that during the Initial Term or any Renewal Term the
prevailing market prices of Equipment shall decrease to a
price 10% less than the prices stated in Schedule A, under
like terms and conditions as this Agreement, and Purchaser
gives notice to Pirelli of such decrease, the terms of
Section 2.2 above shall continue to apply after such notice
only if Pirelli agrees to amend Schedule A to decrease the
prices set forth therein to prices equal to such prevailing
market prices, under like terms and conditions so long as
such prices prevail in the market place.
4. Orders and Payment.
4.1. Orders. Purchaser will, from time to time during the Term and
any Renewal Term, order 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.
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Exchange Commission. Asterisks denote omissions.
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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. Shipping and billing
tolerance hereunder shall be-0% + 2 %.
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. 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 four (4) weeks of the date of
receipt of such Purchase Order. Pirelli will ship Equipment
ex-factory within two to four (2 to 4) weeks of its receipt
and 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 under Section 8 hereof by more than 50%. If an
order causes the aggregate amount for that month to exceed
the forecast for that month, Pirelli shall use its best
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 that Pirelli
make delivery within a shorter period, and Pirelli will
exercise its best 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 are shown in U.S. dollars, FOB Destination,
indicated by Purchaser within the continental United States
and shipped via standard ground transportation. Pirelli shall
be responsible for all shipping arrangements. Any expedited
shipping charges shall be the responsibility of the
Purchaser. Purchaser shall be responsible for all off-loading
activities at delivery sites 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.
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Exchange Commission. Asterisks denote omissions.
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6. Reels. Pirelli shall deliver all Equipment on non-returnable wooden
lagged reels. Purchaser and Pirelli agree to negotiate in good faith to
migrate during the initial Term to the use of returnable steel reels
for the delivery of Equipment in accordance with Pirelli's Returnable
Steel Reel Policy, set forth on Schedule C, attached and incorporated
herein.
7. Training. Pirelli shall provide training, training materials, and
support to Purchaser to enable Purchaser to train Purchaser's training
instructors or other designated persons. Purchaser shall be entitled to
10 days of training per quarter; additional training may be purchased
pursuant to the then current price list. 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.
8. Supply of Equipment. Purchaser agrees to provide Pirelli with an
estimate of its annual requirements for Equipment over the Term and any
Renewal Term of this Agreement, and shall also provide to Pirelli each
month during the Term and any Renewal Term a forecast of its Equipment
requirements for the twelve (12) weeks 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 is
manufactured and delivered when required. This information shall not be
considered an order and shall not obligate the Purchaser to buy any
particular amount of Equipment. Purchaser shall provide to Pirelli its
first such forecast of its Equipment requirements no later than thirty
(30) days after the date of this Agreement.
9. 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
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Exchange Commission. Asterisks denote omissions.
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then Purchaser may purchase Equipment from a third party
notwithstanding Section 2.2 herein.
10. Representations and Warranties.
10.1. 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 the period
ending on the first to occur of (i) thirty-six (36) months
after the date of installation of such goods, or (ii)
forty-two (42) months after the date on which such goods have
been declared by Pirelli to be ready for shipment to
Purchaser. 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
10.2. No Infringement. Pirelli represents and warrants that neither
the 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 supplied by Pirelli
infringes on the intellectual property rights of any third
party, and will pay any costs and damages finally awarded.
10.3. 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
PRODUCT, 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
PRODUCT. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL PIRELLI BE
LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT
DAMAGES INCURRED BY
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Exchange Commission. Asterisks denote omissions.
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PURCHASER, ITS CUSTOMERS, OR ANYONE CLAIMING THROUGH
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, WHETHER CLAIMED IN
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
11. Technological Change. During the Term and any Renewal Term of this
Agreement, Pirelli agrees to keep Purchaser apprised of new technical
developments, or improvements available with respect to the Equipment,
and to make these new developments or improvements available to
Purchaser in a timely manner. Any required change in prices will be
mutually agreed upon before technical changes or improvements are
implemented in the Equipment being supplied to Purchaser.
12. 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 D.
13. Termination.
13.1. Right to Terminate. Subject to the provisions of Section 9
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:
13.1.1. a material breach by a non-terminating party of any
of its representations, warranties, covenants or
agreements contained herein, and
13.1.1.1. the breaching party fails, where
remedy is possible within fifteen (15) days,
to remedy the breach (i) in the case of a
late delivery, within fifteen (15) days of
the required time for delivery, or (ii) in
the case of any other breach, within fifteen
(15) days of being requested to do so in
writing by the non-breaching party; or
13.1.1.2. the breaching party fails, where
remedy is not reasonably possible within
fifteen (15) days, to propose a plan no
later than the end of such fifteen (15) day
period, which plan is reasonably capable of
providing a cure of the
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Exchange Commission. Asterisks denote omissions.
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breach within fifteen (15) days of the
proposal's being made, or fails diligently
and continuously to execute the plan to
remedy the breach; or
13.1.1.3. 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
13.1.1.4. 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.
13.1.2. In addition to the right to terminate this
Agreement pursuant to Sections 13.1.1.1 or 13.1.1.2
for the non-delivery by Pirelli of Equipment
pursuant to a Purchase Order, Purchaser shall have
the right to purchase such Equipment from a third
party without regard to the provisions of Section
2.2 for the period during which such breach shall
remain uncured.
13.1.3. If Equipment is delivered by Pirelli within the
required time for delivery hereunder (without
reference to the cure periods contained in Section
13.1.1) for less than 96% of the deliveries during
any six (6) month period, Pirelli and Purchaser
shall meet to discuss the problem and ways to
improve delivery. If Equipment is delivered by
Pirelli within the required time for delivery
hereunder (without reference to the cure periods
contained in Section 13.1.1) for less than 92% of
the deliveries during any six (6) month period,
Purchaser may terminate this Agreement under this
Section 13.1.
13.2. 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 shall survive the
termination of this Agreement as expressly set forth
elsewhere herein.
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Exchange Commission. Asterisks denote omissions.
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13.3. 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 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 ordered by Purchaser, but
not yet delivered on the date of termination. 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.
14. Title to Equipment. Pirelli covenants, represents and warrants that
upon acceptance of Equipment by Purchaser, title to the 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, title
to the 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.
15. 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 15. 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 below, as changed from time to time in accordance
with the provisions of this section:
If to Pirelli: Pirelli Cables and Systems LLC
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Attention: Sr. Vice President & General Manager
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: DIGITAL TELEPORT, INC.
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Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: DIGITAL TELEPORT, INC.
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Attention: Vice President-Legal
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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.
16. General Terms.
16.1. 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.
16.2. 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.
16.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of
Missouri.
16.4. 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 constitute a waiver of such right or any other rights
hereunder.
16.5. 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.
16.6. 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.
16.7. 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.
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16.8. 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.
16.9. 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.
17. 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 any payments for the 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 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 the within Agreement
as of the date first written above.
PIRELLI CABLES AND SYSTEMS LLC DIGITAL TELEPORT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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(Authorized Signature) (Authorized Signature)
Name: Name:
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Title: Title:
-------------------------- --------------------------
Date: Date:
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SCHEDULE "A"
COMPOSITE
SINGLE ARMOR/SINGLE JACKET
KLEENCORE(TM) CABLE
Mixed Fiber, Loose Tube Cable,
Dielectric CSM, Single Armor, 1 MDPE Jacket,
Water Swellable Material, Tensile 600#, Outer Strength Members,
Containing Singlemode Fibers @ .40/.30 dB/Km @ 1310/1550 nm
and Lambda Shifted Fibers @ .25 dB/Km @ 1550 nm
PURCHASE VOLUME DISCOUNTS BASED ON FKM
50,000 to 150,000 to
Fiber Count Product # Unit Price 149,999 249,999 250,000 to > 400,000
per foot FKM ▇▇▇ ▇▇▇,▇▇▇ ▇▇▇ ▇▇▇
▇▇ (▇▇▇ - ▇▇▇) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ *** *** *** *** ***
96 (48S - 48L) 0096XXS1LAKEAJA *** *** *** *** ***
SINGLE ARMOR/SINGLE JACKET
KLEENCORE(TM) CABLE
Singlemode Fiber, Loose Tube, Dielectric CSM
Single Armor, 1 MDPE Jacket, Water Swellable Material
Outer Strength Members, 600# Tensile
< .40/.30 dB/Km at 1310/1550nm
-
PURCHASE VOLUME DISCOUNTS BASED ON FKM
50,000 to 150,000 to
Fiber Count Product # Unit Price 149,999 249,999 250,000 to > 400,000
per foot FKM FKM 399,999 FKM FKM
6 0006SCS1LAKEAJA *** *** *** *** ***
8 0008SCS1LAKEAJA *** *** *** *** ***
12 0012SCS1LAKEAJA *** *** *** *** ***
18 0018SCS1LAKEAJA *** *** *** *** ***
24 0024SCS1LAKEAJA *** *** *** *** ***
30 0030SCS1LAKEAJA *** *** *** *** ***
36 0036SCS1LAKEAJA *** *** *** *** ***
48 0048SCS1LAKEAJA *** *** *** *** ***
54 0054SCS1LAKEAJA *** *** *** *** ***
60 0060SCS1LAKEAJA *** *** *** *** ***
72 0072SCS1LAKEAJA *** *** *** *** ***
84 0084SCS1LAKEAJA *** *** *** *** ***
96 0096SCS1LAKEAJA *** *** *** *** ***
108 0108SCS1LAKEAJA *** *** *** *** ***
120 0120SCS1LAKEAJA *** *** *** *** ***
132 0132SCS1LAKEAJA *** *** *** *** ***
144 0144SCS1LAKEAJA *** *** *** *** ***
156 0156SCS1LAKEAJA *** *** *** *** ***
168 0168SCS1LAKEAJA *** *** *** *** ***
180 0180SCS1LAKEAJA *** *** *** *** ***
192 0192SCS1LAKEAJA *** *** *** *** ***
204 0204SCS1LAKEAJA *** *** *** *** ***
216 0216SCS1LAKEAJA *** *** *** *** ***
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Exchange Commission. Asterisks denote omissions.
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SCHEDULE "B"
TO
AGREEMENT FOR PURCHASE AND SALE OF EQUIPMENT
BETWEEN
PIRELLI CABLES AND SYSTEMS LLC
AND
DIGITAL TELEPORT, INC.
TECHNICAL SPECIFICATIONS
Fiber optic cable supplied under this Agreement shall be in compliance with
Pirelli Specification, PS-3000, Issue 3, September 1, 1995 which reflects
current industry standard specification for cable with loose buffer tube, all
dielectric, 600 lb. tensile strength.
The optical fiber supplied under this Agreement shall be as indicated in the
Corning Fiber Datasheets attached hereto:
PI1036 Corning(R) SMF-28(TM) CPC6
PI1050 Corning(R) SMF-LS(TM) CPC6
PI1107 Corning(R) LEAF(TM) CPC6
PI360 Corning(R) 62.5/125 CPC6
Specific attenuation values shall be supplied at time of order.
12
PROPRIETARY - FOR THE USE OF DIGITAL TELEPORT AND PIRELLI ONLY
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
13
SCHEDULE "C"
PIRELLI CABLES AND SYSTEMS LLC
RETURNABLE STEEL REEL POLICY
1. All Pirelli reels are painted orange and bear a unique serial number
for ease of identification and tracking.
2. Pirelli's steel reel sizes are listed in the attached reel chart. It is
our objective to primarily supply the "Pirelli Standard" sizes only,
limiting the total number of reel sizes to six. NOTE: Pirelli standard
reels are built to NEMA specifications and appended to match the
existing wooden reel sizes presently supplied.
3. Pirelli will not assess any charge for reels for a period of 270 days
after shipment. If the reel has not been returned after 270 days,
Pirelli will ▇▇▇▇ the customer in accordance with the schedule below.
If the customer returns the reel within 365 days of the original ship
date, eighty percent of the billing amount shall be credited to the
customer. All reels shall be returned empty of excess cable.
Refurbishment costs for reels requiring significant repair shall be
billed to the customer.
PIRELLI STEEL REEL SIZE PIRELLI COST *% OF COST
36" To 48" Reel $ * $ *
54" To 66" Reel $ * $ *
72" To 78" Reel $ * $ *
84" To 96" Reel $ * $ *
4. The return freight charges from collection center to Pirelli and/or
Pirelli agent shall be the responsibility of the Pirelli. The customer
should contact the supplier's representative with information regarding
the reel shipment (e.g., routing, carrier, number of reels, expected
arrival date, etc).
5. Emergency Service Proviso: Ability to ship on non-returnable wooden
reels, with prior notification, in the event steel reels are not
available for service interval required by customer.
13
PROPRIETARY - FOR THE USE OF DIGITAL TELEPORT AND PIRELLI ONLY
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
14
SCHEDULE "D"
( NDA)
14
PROPRIETARY - FOR THE USE OF DIGITAL TELEPORT AND PIRELLI ONLY
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
15
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.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
16
as have been or may be provided to the 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
2
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
17
considered confidential by, and is considered exclusively proprietary 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.
3
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
18
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.
4
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PIRELLI CABLES AND SYSTEMS LLC
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-----------------------------------
Title: Vice President, Sales & Marketing
----------------------------------
DIGITAL TELEPORT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
5
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
20
SCHEDULE A
PIRELLI CABLES NORTH AMERICA AUTHORIZED RECIPIENT REPRESENTATIVES
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ III
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Alessendrini
▇▇▇▇ Hesir
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Bournazous
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
DIGITAL TELEPORT, INC. AUTHORIZED RECIPIENT REPRESENTATIVES
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
H.P. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
J. ▇▇▇▇ ▇▇▇▇▇▇
6
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
21
SCHEDULE E
PIRELLI CABLES & SYSTEMS
DIGITAL TELEPORT INC. PRICING
FIRSTLINK(TM)
Singlemode Fiber, Loose Tube
Dielectric CSM, Indoor/Outdoor Riser Rated - FirstLink(TM)
1 PVC Jacket, Outer Strength Members, 600# Tensile
Water Blocked, Meets UL 1666
<.40/.30 dB/Km at 1310/1550nm
-
FIBER COUNT PRODUCT # PRICE/FT
----------- --------------- --------
12 0012SCS1LAKERJA $ ***
24 0024SCS1LAKERJA $ ***
36 0036SCS1LAKERJA $ ***
48 0048SCS1LAKERJA $ ***
60 0060SCS1LAKERJA $ ***
72 0072SCS1LAKERJA $ ***
96 0096SCS1LAKERJA $ ***
144 0144SCS1LAKERJA $ ***
RISER RATED PREMISE CABLE
Singlemode Fiber, 900 micron Tight Buffered
1 yellow PVC Jacket, Outer Strength Members, Riser Rated
<.7/.7 dB/Km at 1310/1550nm
-
FIBER COUNT PRODUCT # PRICE/FT
----------- --------------- --------
6 0006SEXXTATNRNR $ ***
12 0012SEXXTATNRNR $ ***
RISER RATED DISTRIBUTION CABLE
Singlemode Fiber, 900 micron Tight Buffered
1 Yellow PVC Jacket, Dielectric CSM, Tensile 300#,
Riser Rated .7/.7 dB/Km at 1310/1550nm
FIBER COUNT PRODUCT # PRICE/FT
----------- --------------- --------
24 0024SESXTATERNP $ ***
36 0036SESXTATERNP $ ***
48 0048SESXTATERNP $ ***
Minimum order quantity to manufacture is 3,280ft.
CONFIDENTIAL
FOR THE USE OF PIRELLI AND DIGITAL TELEPORT AUTHORIZED PERSONNEL ONLY.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
22
SCHEDULE E
PIRELLI CABLES & SYSTEMS
DIGITAL TELEPORT INC. PRICING
PLENUM RATED PREMISE CABLE
Singlemode Fiber, 900um Tight Buffered
1 yellow PVC Jacket, Outer Strength Members, Plenum Rated
<.7/.7 dB/Km at 1310/1550nm
-
FIBER COUNT PRODUCT # PRICE/FT.
----------- --------------- ---------
6 0006SEXXTATNPND $ ***
12 0012SEXXTATNPND $ ***
PLENUM RATED DISTRIBUTION CABLE
Singlemode Fiber, 900 micron Tight Buffered,
1 Yellow PVC Jacket, Dielectric CSM, Tensile 150#,
Plenum Rated .7/.7 dB/Km at 1310/1550nm
FIBER COUNT PRODUCT # PRICE/FT.
----------- --------------- ---------
24 0024SESXTATEPNR $ ***
36 0036SESXTATEPNR $ ***
48 0048SESXTATEPNR $ ***
Minimum order quantity to manufacture is 3,280ft.
CONFIDENTIAL
FOR THE USE OF PIRELLI AND DIGITAL TELEPORT AUTHORIZED PERSONNEL ONLY.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
