EXHIBIT 10.10
ASSIGNMENT, ASSUMPTION AND ACCEPTANCE
OF AGREEMENT FOR PRODUCTS
This Assignment, Assumption and Acceptance of Agreement for Products dated as of
this 14 day of July, 1999 ("Assignment") is made by and between U S WEST
Communications, Inc., with offices for transaction of business located at 700
West Mineral Avenue, Littleton, Colorado 80120 ("Customer"), E/O Networks,
Chapter 11 Debtor-in Possession, with offices for transaction of business
located at 4010 Point Eden Way, Hayward, California 94545 ("Assignor"), and
GoDigital Telecommunications Inc., with offices for transaction of business
located at 41305 Albrae Street, Fremont, California 94538 ("Assignee").
Customer, Assignor and Assignee are collectively referred to herein as the
"Parties." This Assignment shall be effective as of, and conditioned upon, the
closing of the transaction contemplated by the Asset Purchase Agreement
(hereinafter defined) (the "Effective Date"), and shall have no effect
whatsoever in the event that the transactions contemplated by the Asset Purchase
Agreement do not close.
RECITALS
1. Assignor and Assignee are parties to an Asset Purchase Agreement dated
June 2, 1999 pursuant to which Assignor agreed to sell, transfer, and
assign to Assignee certain of its assets and liabilities as set forth
more fully therein (the "Asset Purchase Agreement").
2. In conjunction with the Asset Purchase Agreement, Assignor and
Assignee desire to effectuate the assignment to and assumption by
Assignee of the Agreement for Products 9600050412 between Assignor and
Customer dated September 26, 1996, as amended (the "Agreement"). Upon
the Effective Date, Assignee and Assignor will be fully empowered to
take such actions as are necessary to effectuate such assignment and
assumption by entering into this Assignment.
3. Customer desires to consent to the assignment of the Agreement, as
required by Section 27 thereof.
4. Assignee and Customer desire to extend the Agreement for five months
for the purpose of providing Assignee and Customer time to negotiate a
new contract between the Customer and the Assignee and Assignor is
willing to accommodate Assignee and Customer in this regard.
AGREEMENT
In consideration of the mutual representations, promises, covenants and
agreements contained herein, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows.
1. The foregoing Recitals are true and correct as stated.
2. Effective as of the Effective Date, Assignor hereby assigns to
Assignee, and Assignee hereby assumes from Assignor, all of the rights
and obligations of Assignor in and to the Agreement. On the Effective
Date, Assignor shall automatically be released and relieved of and
from any further liability or obligation under the Agreement (as
extended hereby) in the manner provided in Section 365 of the United
States Bankruptcy Code. Notwithstanding the foregoing, as between
Assignor and Assignee, nothing in this Agreement shall in any way
affect the rights and obligations of Assignor and Assignee under
Section 1.2(a) of the Asset Purchase Agreement.
3. Unless otherwise notified, all payments should be made to the address
provided on the invoice. Invoices will originate from E/O Networks
prior to the Effective Date, and from GoDigital Telecommunications
after the Effective Date.
4. Assignor and Customer hereby represent and warrant that the documents
attached hereto as Exhibit A constitute a complete and correct copy of
the Agreement and the Agreement has not been modified in any respect
except as set forth on Exhibit A. Customer hereby represents and
warrants to Assignor and Assignee that as of the date of this
Assignment, there are no defaults on Assignor's part under the
Agreement. Assignor represents and warrants to Assignee and Customer
that, to the actual knowledge
of Assignor's executive staff as of the date of this Assignment, there
are no defaults on Customer's part under the Agreement.
5. Customer hereby (a) consents to this Assignment and the assignment and
assumption contemplated hereby, provided however, that this consent
shall only apply to the assignment of the Agreement to GoDigital
Telecommunications, Inc. and, in the event that the closing of the
transaction contemplated by the Asset Purchase Agreement does not
occur, this consent shall be withdrawn and shall not apply to the
assignment of the Agreement to any other party and (b) agrees that
upon the Effective Date, the Agreement shall be and continue to remain
in full force and effect and Customer waives any right it may have to
terminate the Agreement based upon or arising out of any defaults
existing prior to the Effective Date (including any right to terminate
the Agreement based upon or arising out of the bankruptcy of
Assignor).
6. As of the Effective Date the Term of the Agreement is hereby extended
to December 31, 1999.
7. This Agreement shall not confer any rights or remedies upon any person
other than the parties hereto. This Agreement constitutes the entire
agreement between the parties and supersedes any prior understandings,
agreements, or representations by or between the parties, written or
oral, that may have related in any way to the subject matter hereof.
This Agreement shall be binding upon and inure to the benefit of the
parties named herein and their respective successors and permitted
assigns. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together
shall constitute one and the same instrument. All notices, requests,
demands, claims, and other communications hereunder shall be in
writing made as set fort in Section 40 of the Agreement, except that
notices to Supplier shall be addressed to Assignee at the address set
forth above, attention Frank Akers.
[Signatures to follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the date first written above
CUSTOMER:
U S WEST Communications, Inc.
/s/ Gary Patterson
By: ------------------------------
Supplier Manager
Its: ------------------------------
7-19-99
Date: ------------------------------
ASSIGNOR:
E/O Networks
Chapter 11 Debtor and
Debtor-in Possession
By: /s/ L. Hutchinson
------------------------------
Its: President & CEO
------------------------------
Date: 7/14/99
------------------------------
ASSIGNEE:
GoDigital Telecommunications, Inc.
By: /s/ Frank I. Akers
------------------------------
Its: President and CEO
------------------------------
Date: July 14, 1999
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[Signature page to Assignment, Assumption and Acceptance of Agreement for
Products]
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