Exhibit 10.29
(FINAL, EXECUTED VERSION)
[ T R A N S L A T I O N ]
MODIFICATION AGREEMENT (HEREINAFTER REFERRED TO AS "THE AGREEMENT") TO THE
PRIMARY CONTRACT OF OBLIGATIONS TO GIVE, DO AND NOT DO (HEREINAFTER REFERRED TO
AS "THE PRIMARY CONTRACT") EXECUTED THE 1ST OF MAY, 1997 BY AMERICAN TELESOURCE
INTERNATIONAL INC. (HEREINAFTER REFERRED TO AS "ATSI") BY ITS LEGAL
REPRESENTATIVE XXXXXX XXXXX; AND THE COMPANIES THAT THE ENTITIES THAT IT
DESIGNATES AS ITS LEGAL REPRESENTATIVES AD DULY AUTHORIZED; AND ON THE OTHER
SIDE, SISTEMA DE TELEFONIA COMPUTARIZADA, S.A. DE C.V., REPRESENTED BY ITS LEGAL
REPRESENTATIVE XXXXXXXX XXXXXXXX BALBOA; INGECOMP CORPORATION REPRESENTED BY
XXXXXXXX XXXXXXXX BALBOA; HUMANO GRUPO INMOBILIARIO, S.A. DE C.V. REPRESENTED BY
XXXXXXXX XXXXXXXX BALBOA; AS WELL AS XXXXXXX XXXXXX XXXX, XXXXXXX XXXXXX XXXXXX
XXXX, XXXXXX XXXXXX XXXX, XXXXXXX XXXXXX XXXX AND XXXXXXX XXXX XXXXXX XXXXXXXXX
IN THEIR INDIVIDUAL CAPACITIES (HEREINAFTER REFERRED TO AS "THE SHAREHOLDERS")
AND IN CONFORMITY WITH THE FOLLOWING DECLARATIONS AND CLAUSES:
DECLARATIONS OF THE PARTIES:
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FIRST.- The parties to THE AGREEMENT declare that they are also parties to THE
PRIMARY CONTRACT, and therefore acknowledge its existence, validity, efficiency,
acknowledging as well the parties and the standing of the parties to that
contract.
SECOND.- They acknowledge that they have made their best effort to execute all
of these acts of THE PRIMARY CONTRACT which attempted to effect performance of
all objectives no later than July 31, 1997. However, the parties acknowledge
that due to causes beyond their control it would not be possible to conclude
said activities by such date.
THIRD.- The parties acknowledge the existence, validity and effect of all the
acts that up until now have been executed in accordance with THE PRIMARY
CONTRACT.
FOURTH.- In conformity with that mentioned above it is their desire to now
execute THE AGREEMENT subject to the approval of the respective board of
directors, in accordance with the following
C L A U S E S:
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FIRST.- OBJECTIVE.- By means of THE AGREEMENT the parties agree to modify
CLAUSES FOURTH, FIFTH, TENTH and ELEVENTH of THE PRIMARY CONTRACT, with
respect to the DONATION AND SUBSEQUENT TRANSFER OF THE OWNERSHIP OF THE
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REMAINING SHARES OF SISTECOM, THE TEMPORARY ADMINISTRATIVE ORGAN, THE PURCHASE
OF THE INGECOMP ASSETS, AND THE MERGER OF RHA AND SISTECOM, RESPECTIVELY.
The Parties agree to modify the permitted length of time for performance
of the obligations of THE PRIMARY CONTRACT to August 25, 1997.
SECOND.- MODIFICATION OF CLAUSE FOURTH OF THE PRIMARY CONTRACT REFERRING TO
THE DONATION AND SUBSEQUENT TRANSFER OF PROPERTY OF THE REST OF THE SHARES OF
SISTECOM.
The condition of suspension referred to in point 3 of the Fourth Clause of
THE PRIMARY CONTRACT shall be modified with regard to the donation of the shares
to GMS, with the following conditions remaining:
a. Formation of the association that will administer the human resources
function and the transfer of the employees to said entity;
b. Observance of the prohibitions of the administrative organs of
SISTECOM, HGI and RHA.
Cecilia, Gerardo, Xxxxxx and Xxxxxxx Xxxxxx Xxxx, with respect to their
ownership rights in SISTECOM, HGI, and RHA shall deposit their shares with a
Notary Public, they shall designate, and donate the referenced shares at no
cost to Xxxxxxx Xxxx Xxxxxx Xxxxxxxxx. This Party will at the same time will
transfer said shares to ATSI, or ATSI's designee. ATSI, or its designee, shall
pay Xxxxxxx Xxxxxx Xxxxxxxxx the following:
a) $1,088,774.68 USD( One Million Eighty Eight Thousand Seven Hundred
Seventy Four and 68/1000 Dollars in the legal currency of the United States);
b) the assignment and transfer of the rights ATSI has in a receivable from
HGI in the amount of $696,615.12 American dollars. ( A simple copy of the
CONTRACT FOR THE OPENING OF A LINE OF CREDIT is attached.
THIRD.- MODIFICATION OF FIFTH CLAUSE OF THE PRIMARY CONTRACT REGARDING THE
TEMPORARY ADMINISTRATIVE ORGANIZATION.
The parties agree to release the SHAREHOLDERS of SISTECOM, RHA and HGI,
from the contractual obligation in the creation of a temporary administrative
organization as described in CLAUSE FIFTH of THE PRIMARY CONTRACT.
FOURTH.- MODIFICATION OF EIGHTH CLAUSE RELATED TO THE REMOVAL OF THE RISCO AND
ITS RELATION TO THE REMAINING OBLIGACIONES DISTRIBUTED BY THE CONTRACT.
The parties agree to release ATSI from the obligation to acquire the trust
rights in the RISCO TRUST.
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The appropriate amount to be paid by ATSI. HGI and SISTECOM for the payment
of the account payable owed by SISTECOM to Telefonos de Mexico, S.A. de C.V.
shall be documented by means of a Contract for the Opening of a Line of Credit.
The parties agree to release ATSI from having to make the payments set
forth in Point 3, Clause Eight of the PRIMARY CONTRACT.
The way that the real property, RISCO, shall be dealt with in the PRIMARY
CONTRACT shall be as follows:
a) The money paid by ATSI to HUMANO GRUPO INMOBILIARIO is part of a SIMPLE
CONTRACT FOR THE OPENING OF A LINE OF CREDIT between ATSI and HGI.
b) GMD and CMD shall donate, with a condition precedent, to GMS 45% of the
SISTECOM shares in accordance with that set forth in Second Clause of this
MODIFICATION AGREEMENT.
c) GMS, through its designee, shall enter into a buy-sell agreement for
22.5% of the shares of SISTECOM with ATSI, that, in consideration of same, shall
transfer the rights in the receivable of the contract for simple opening of a
line of credit in conformity with point a) of that clause.
d) HGI shall pay of the existing debt owed under the contract for the
simple opening of a line of credit for the real property known as RISCO.
FIFTH.- MODIFICATION OF THE TENTH CLAUSE OF THE PRIMARY CONTRACT RELATING TO
THE PURCHASE OF THE INGECOMP ASSETS.
1. The parties agree to release from the PRIMARY CONTRACT (obligations
relating to ) the INGECOMP assets, as well as INGECOMP's obligation to put forth
its best efforts to effect an assignment of the contractual rights in its name
to ATSI such as , the lease of sites, employees, and the agreements for
telephone lines for the border crossing.
2. The parties agree that any contingent liabilities related to INGECOMP,
except the costs incurred from the write-off of the account receivable owed to
SISTECOM by INGECOMP, shall be offset against the ATSI SHARES at a value of .90
(ninety cents in U.S. currency) per share.
SIXTH.- MODIFICATION OF CLAUSE ELEVEN OF THE PRIMARY CONTRACT RELATING TO THE
MERGER OF RHA AND SISTECOM
The parties agree to modify the portion that states that the registration
documents, referred to in point 2 of the ELEVENTH clause, shall be filed no
later than September 5, 1997.
SEVENTH.- GENERIC TERM FOR THE PERFORMANCE OF THE OBLIGATIONS SET FORTH IN THE
PRIMARY CONTRACT WHICH TO DATE HAVE NOT BEEN PERFORMED.
The parties agree that all of the obligations agreed to in the PRIMARY
CONTRACT shall have August 25, 1997 as the completion date unless otherwise
agreed to in writing by the parties.
EIGHTH.- PERMANENCY OF THE CLAUSE.- Except for the purposes of THE
AGREEMENT, all of the obligations contained in THE PRIMARY CONTRACT shall remain
in force by the parties and the parties shall continue to be bound to the terms
and conditions therein set forth.
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NINTH.- RESPONSIBILITIES.- The parties agree that the modifications to this
AGREEMENT and their corresponding legal effects are not the responsibility of
any of the parties, and it does not imply nonperformance to THE PRIMARY CONTRACT
as originally agreed to. The penalty agreed to in CLAUSE NINETEENTH of THE
PRIMARY CONTRACT shall not apply as the parties mutually release each other from
any damages by means of this AGREEMENT.
In reference to CLAUSE FIFTEENTH of THE PRIMARY CONTRACT, this AGREEMENT
shall modify the fixed term of point 2 in said clause and accordingly adjust the
dates that are set forth in the chart in said clause.
TENTH.- CONSENT.- The parties declare in THE AGREEMENT that there is no
error, fraud, violence, bad faith, injury, or any other cause that might
invalidate it; and the parties renounce their right to invoke the statute of
limitations to invoke them.
ELEVENTH.- DISPUTE RESOLUTION CLAUSE.-
1. Any litigation, controversy or claim derived from or related to this
AGREEMENT or its nonconformance, termination or nullification shall be resolved
in conformity with the Rules of Arbitration of UNCITRAL in force at the time by
the American Association of Arbitration ("AAA").
TWELFTH.- APPLICABLE LAW.-
a).- This AGREEMENT shall be governed by the applicable law that shall be
the Commercial Code of the United Mexican States as well as special and
supplementary Mexican laws as they relate to each of the subject areas regulated
by THE CONTRACT. For these transactions to take effect in the United States of
America the applicable law shall be in conformity with that of the jurisdiction.
THIRTEENTH.- DOMICILE OF THE PARTIES.-
a).- ATSI: 00000 Xxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxx, Xxxxxx
Xxxxxx of America.
b).- SISTECOM: Xx. Xxxxxx 0000, 0xx. Piso, Colonia Xxxxxxxxx,
Guadalajara, Jalisco, United Mexican States.
c).- HGI: Xx. Xxxxxx 0000, 0 Xxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxx, Xxxxxx Xxxxxxx Xxxxxx.
d).- INGECOMP:___________________________________________________________.
e).- THE SHAREHOLDERS:
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Xxxxxxx Xxxxxx Xxxx:______________________________________________________.
-.
Xxxxxxx Xxxxxx Xxxxxx Xxxx:_______________________________________________.
-.
Xxxxxxx Xxxxxx Xxxx:______________________________________________________.
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Xxxxxx Xxxxxx Xxxx:_______________________________________________________.
-.
Xxxxxxx Xxxx Xxxxxx Xxxxxxxxx:____________________________________________.
-.
Notice of any change in domicile shall be given in writing and with proof
of receipt no later than the third day after it occurs.
THE ENTIRE TEXT OF THIS AGREEMENT WAS READ BY THE PARTIES AND WERE INFORMED OF
THE CONTENTS, REACH AND LEGAL CONSEQUENCES AND GRANT THEIR CONCURRENT CONSENT BY
SIGNING IT BELOW AND INITIALING IT IN MULTIPLE COPIES ON THE MARGINS OF ITS 5
PAGES ON JULY 16, 1997 IN XXX XXXX XX XXXXXXXXXXX, XXXXXXX, XXXXXX.
[ signed ] [ signed ]
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ATSI SISTECOM
By: Xxxxxx Xxxxx By: Xxxxxxxx Xxxxxxxx Balboa
[ signed ] [ signed ]
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INGECOMP HGI
By: Xxxxxxxx Xxxxxxxx Balboa By: Xxxxxxxx Xxxxxxxx Balboa
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[ signed ]
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Xxxxxxx Xxxx Xxxxxx Xxxxxxxxx
[ signed ] [ signed ]
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Xxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxx Xxxx
[ signed ] [ signed ]
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Xxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxx
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Witness Witness
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