Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act.
Exhibit 10.1
(Translation)
CANCELLATION AGREEMENT [CONVENIO DE CANCELACION] ("THIS AGREEMENT") MADE BY AND
BETWEEN TELEFONOS DE MEXICO, S.A. DE C.V., REPRESENTED BY MR. XXXXXX XXXXXXXXX
XXXXXXX, LEGAL REPRESENTATIVE ("TELMEX"), AND AOL MEXICO, S. DE X.X. DE C.V.,
REPRESENTED BY XX. XXXXXXX XXXXXXX XXXXXXXXX XXXXXXXX, LEGAL REPRESENTATIVE
("AOL") (TELMEX AND AOL WILL HEREINAFTER BE JOINTLY REFERRED TO AS THE
"PARTIES"), PURSUANT TO THE FOLLOWING BACKGROUND, REPRESENTATIONS AND CLAUSES:
B A C K G R O U N D
I. The Parties have executed a Contract pursuant to which
Telmex has made available to AOL such Internet Trunk Lines [TRONCALES] (the
"Trunk Lines") as are necessary in order to run AOL's National Switched Access
Network [RED NACIONAL DE ACCESO CONMUTADO].
II. Throughout the Contract term and up to February 2002, AOL
ordered [**] Trunk Lines from Telmex and requested [**] additional Trunk Lines
which Telmex neither activated nor delivered. Such Trunk Lines are described on
Exhibit 1 hereto.
III. From March to July 2002, AOL cancelled [**] Trunk Lines
(which are described on Exhibit 2 hereto); [**] of such Trunk Lines were
delivered by Telmex and [**] had not yet been delivered. The Parties hereby
agree on the cancellation damages due only to the [**] Trunk Lines that AOL
cancelled; no damages are due for the undelivered [**] Trunk Lines.
IV. From July 2002 to June 30, 2003, AOL ordered [**] Trunk
Lines described on Exhibit 3 hereto; from July 1st, 2003, onward, said Trunk
Lines became a part of the Internet Ports supplied by Uninet, S.A. de C.V., to
AOL; therefore, from this date on, said Trunk Lines are the subject matter of
contracts executed with and invoiced by Uninet, S.A. de C.V.
R E P R E S E N T A T I O N S :
I. The Parties acknowledge and agree that this Agreement apply
to all of the Trunk Lines listed on Exhibits 2 and 3 hereto, as previously
negotiated and agreed upon by the Parties and stated in this Agreement.
II. The Parties mutually recognize their qualifications and
authority to execute this Agreement and represent that said authority has not
been revoked, modified or otherwise limited, and that they therefore have such
powers as are necessary to bind themselves pursuant to this Agreement.
III. The Parties agree to enter into this Agreement pursuant
to the terms and conditions laid down in the following
C L A U S E S :
FIRST. AGREEMENT PURPOSE
The Parties enter into this Agreement in order to cancel the
Trunk Lines listed on Exhibit 2 hereto, effective as of the date stated on
Exhibit 2, as provided in the Background and Representations hereof.
2
The Parties agree that the liquidated damages for the
premature cancellation of the Trunk Lines listed on Exhibit 2 hereto amount to
Ps.[**].
Telmex hereby extends AOL a US$[**] debt reduction; AOL must
pay the difference between the liquidated damages due to premature cancellation
of the Trunk Lines and the debt reduction to which this paragraph refers, within
30 (thirty) business days following the execution date hereof, against the
corresponding invoice [issued by Telmex] meeting all of the requirements of the
applicable laws.
In order to compute the amount payable by AOL and the exchange
rate applicable to the debt reduction will be the exchange rate published by
Banco de Mexico on the OFFICIAL GAZETTE of the Federation [DIARIO OFICIAL DE LA
FEDERACION] on the date on which payment is made to Telmex.
Telmex acknowledges and accepts that the payment to be made to
it is the only amount that Telmex will charge AOL for the cancellation of the
Trunk Lines listed on Exhibit 2 hereto.
Telmex agrees that the Trunk Lines listed on Exhibit 3 hereto
were cancelled effective June 30, 2003. Telmex further acknowledges and accepts
that AOL Mexico [sic] does not owe it any amount for the Cancellation or
otherwise, as proper, of the Trunk Lines listed on Exhibit 3, or anything else
in connection with said Trunk Lines or [any] equipment that may have been
necessary to provide the services.
Telmex and AOL agree to render without effects, from July 1st
onward, the Letter of Intent [CARTA DE INTENCION] dated June 11, 2003, which Mr.
Xxxxxx Xxxxxxxxx Xxxxxxx sent to Xx. Xxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxx, and
that only the confidentiality obligation stated in paragraph 7 of said letter
will remain in effect for three years counting from July 1st, 2003.
SECOND. RELEASE OF LIABILITY
As a result of the provisions of this Cancellation Agreement,
Telmex, on its own behalf and on behalf of its officers, directors,
stockholders, employees, agents, assigns, assignees, holding company, subsidiary
companies and related parties and affiliates (collectively, the "Telmex
Releasors") hereby irrevocably releases AOL and all of AOL's officers,
directors, stockholders, employees, agents, assigns, assignees, holding company,
subsidiary companies and related parties and affiliates (collectively, "AOL's
Releasees") from any claim, complaint, action, demand, cost, loss, liability,
damages and charges of any kind, whether now or in the future known
(collectively, the "Claims") that any Telmex Releasor asserts or may have
asserted against any AOL Releasee, effective July 1st, 2003, in connection with
or arising from anything related to the Trunk Lines listed on Exhibits 2 and 3
hereto.
3
THIRD. CONFIDENTIALITY
This Agreement will be regarded confidential by the Parties
and will not be disclosed to other than the employees or agents that must have
access to the Confidential Information contained herein in order to be able to
comply with the Parties' obligations hereunder; the Parties must make sure that
said employees and agents in turn undertake not to disclose the confidential
information herein contained.
The Parties acknowledge and agree that the information herein
contained will not be regarded Confidential Information if (a) it becomes
publicly known due to other than the recipient's default of its obligations
hereunder; (b) it was delivered to the recipient by a third party not under any
confidentiality obligation; (c) it was developed by the recipient prior to the
execution date hereof, and the recipient can so prove with documentary evidence;
(d) it was disclosed pursuant to a court order, on the understanding that the
recipient will only disclose the information that must be disclosed pursuant to
said court order and will make all reasonable efforts to cause the involved
Confidential Information to be afforded treatment as Confidential Information;
(e) it has been disclosed with the other Party's prior written approval; or (f)
the [Parties'] holding or affiliated companies need to disclose the Confidential
Information to the competent authorities such as but not limited to the U. S.
Securities and Exchange Commission because they are under the obligation to do
so under applicable laws, regulations or statutes.
FOURTH. LANGUAGE
This Agreement may be entered into in Spanish and English, on
the understanding that the Spanish version will prevail in the event of any
dispute involving this Agreement.
FIFTH. JURISDICTION, CONSTRUCTION AND ENFORCEMENT
For everything regarding the construction, fulfillment and
enforcement of this Agreement, the Parties submit to the applicable laws and
competent courts of the City of Mexico, Federal District, and expressly waive
the jurisdiction of any other court to which they may be subject due to their
present or future domiciles.
Since this Agreement does not contain any Clause which is
contrary to law and since the Parties represent that they were not subject to
duress, bad faith, or any defect of consent that might render the same null and
void, the Parties execute the same in duplicate in the City of Mexico, Federal
District, on February 27, 2004.
TELMEX AOL
TELEFONOS DE MEXICO, S.A. DE C.V. AOL MEXICO, S. DE X.X. DE C.V.
By: By:
/s/ XXXXXX XXXXXXXXX XXXXXXX /s/ XXXXXXX X. XXXXXXXXX XXXXXXXX
----------------------------- ---------------------------------
XXXXXX XXXXXXXXX XXXXXXX XXXXXXX X. XXXXXXXXX XXXXXXXX
4
EXHIBIT 1 TO THE CANCELLATION AGREEMENT
TRUNK LINES ORDERED BY AOL AND DELIVERED BY TELMEX
City Telephone Trunk Lines Activation
---- --------- ----------- ----------
Mexico City 19432266 [**] 11/30/00
Monterrey 81229998 [**] 06/14/01
Guadalajara 32490201 [**] 11/23/00
Cancun 98818640 [**] 08/31/02
Merida 99406265 [**] 08/31/02
Oaxaca 95016265 [**] 08/31/02
Puebla 22137300 [**] 09/03/02
Morelia 43226999 [**] 09/27/02
Veracruz 29249205 [**] 09/27/02
Acapulco 74350105 [**] 09/25/02
Jalapa 28420205 [**] 09/25/02
Xxxxxx Xxxxxxxx 00000000 [**] 09/25/02
Queretaro 42114040 [**] 09/25/02
San Xxxx Potosi 48265020 [**] 09/25/02
Aguascalientes 40105005 [**] 10/10/02
Xxxx 47884940 [**] 10/10/02
Villahermosa 93580265 [**] 10/10/02
Mazatlan 69890595 [**] 10/22/02
Mexicali 65804500 [**] 10/22/02
Cd. Xxxxxx 16290998 [**] 10/23/02
Chihuahua 14320990 [**] 10/23/02
Culiacan 77590404 [**] 11/14/02
Cuernavaca 3105300 [**] 03/08/02
Tampico 2290416 [**] 03/08/02
TOTAL [**]
5
TRUNK LINES ORDERED BY AOL BUT NOT DELIVERED BY TELMEX
City Telephone Trunk Lines Activation
---- --------- ----------- ----------
Chilpancingo, Guerrero [**]
Guaymas, Sonora [**]
La Paz [**]
San Xxxx del Rio, Queretaro [**]
Tepic, Nayarit [**]
Xxxxxx, Michoacan [**]
Nuevo Laredo [**]
Tijuana [**]
Uruapan, Michoacan [**]
Cuernavaca [**]
Monclova, Coahuila [**]
Nogales, Sonora [**]
Guadalajara [**]
Colima, Colima [**]
Los Mochis [**]
Toluca [**]
Torreon [**]
Xxxxx xx Xxxxx [**]
TOTAL [**]
6
EXHIBIT 2 TO THE CANCELLATION AGREEMENT
Number Number Number
of Effective of Effective of Effective
Trunk Cancellation Trunk Cancellation Trunk Cancellation
City Lines Date Lines Date Lines Date
---- ------ ------------- ------ ------------- ------ ------------
ACAPULCO [**] 06/01/02 [**] 07/01/02
AGUASCALIENTES [**] 03/01/02 [**] 06/01/02
CANCUN [**] 03/01/02 [**] 06/01/02
CD. XXXXXX [**] 07/01/02
CUERNAVACA [**] 07/01/02
CULIACAN [**] 03/01/02 [**] 06/01/02
CHIHUAHUA [**] 06/01/02
GUADALAJARA [**] 06/01/02 [**] 07/01/02
JALAPA [**] 03/01/02 [**] 07/01/02
XXXX [**] 03/01/02 [**] 06/01/02
MAZATLAN [**] 03/01/02 [**] 06/01/02
MERIDA [**] 03/01/02 [**] 06/01/02
MEXICALI [**] 03/01/02 [**] 06/01/02 [**] 07/01/02
MEXICO CITY [**] 03/01/02 [**] 06/01/02 [**] 07/01/02
MONTERREY [**] 06/01/02 [**] 07/01/02
MORELIA [**] 06/01/02 [**] 07/01/02
OAXACA [**] 06/01/02 [**] 07/01/02
PUEBLA [**] 03/01/02 [**] 06/01/02
PUERTO VALLARTA [**] 03/01/02
QUERETARO [**] 03/01/02 [**] 06/01/02
SAN XXXX POTOSI [**] 03/01/02 [**] 06/01/02 [**] 07/01/02
TAMPICO [**] 06/01/02
VERACRUZ [**] 03/01/02 [**] 06/01/02
VILLAHERMOSA [**] 03/01/02 [**] 06/01/02
CHILPANCINGO, GUERRERO [**] 03/01/02
GUAYMAS, SONORA [**] 03/01/02
LA PAZ [**] 03/01/02
SAN XXXX DEL RIO, QUERETARO [**] 03/01/02
TEPIC, NAYARIT [**] 03/01/02
ZAMORA, MICHOACAN [**] 03/01/02
MATAMOROS [**] 03/01/02
NUEVO LAREDO [**] 03/01/02
REYNOSA [**] 03/01/02
TIJUANA [**] 03/01/02
URUAPAN, MICHOACAN [**] 03/01/02
CUERNAVACA [**] 03/01/02
MONCLOVA, COAHUILA [**] 03/01/02
NOGALES, SONORA [**] 03/01/02
GUADALAJARA [**] 03/01/02
COLIMA, COLINA [**] 03/01/02
LOS MOCHIS, SINALOA [**] 03/01/02
SALTILLO [**] 03/01/02
TOLUCA [**] 03/01/02
TORREON [**] 03/01/02
XXXXX XX XXXXX [**] 03/01/02
---- ---- ----
Subtotal [**] [**] [**]
TOTAL [**]
----
7
EXHIBIT 3 TO THE CANCELLATION AGREEMENT
TRUNK LINES IN ACTIVE SERVICE UP TO JUNE 30, 2003
City Telephone Trunk Lines Activation
---- --------- ----------- ----------
Acapulco 74350105 [**] 09/25/02
Aguascalientes 40105005 [**] 10/10/02
Cancun 98818640 [**] 08/31/02
Cd. Xxxxxx 16290998 [**] 10/23/02
Culiacan 77590404 [**] 11/14/02
Cuernavaca 69890595 [**] 03/08/02
Chihuahua 14320990 [**] 10/23/02
Guadalajara 32490201 [**] 11/23/00
Jalapa 28420205 [**] 09/25/02
Xxxx 47884940 [**] 10/10/02
Mazatlan 69890595 [**] 10/22/02
Merida 99406265 [**] 08/31/02
Mexicali 65804500 [**] 10/22/02
Mexico City 19432266 [**] 11/30/00
Monterrey 81229998 [**] 06/14/01
Morelia 43226999 [**] 09/27/02
Oaxaca 95016265 [**] 08/31/02
Puebla 22137300 [**] 09/03/02
Xxxxxx Xxxxxxxx 00000000 [**] 09/25/02
Queretaro 42114040 [**] 09/25/02
San Xxxx Potosi 48265020 [**] 09/25/02
Tampico 2290418 [**] 03/18/02
Veracruz 29249205 [**] 09/27/02
Villahermosa 93580265 [**] 10/10/02
TOTAL [**]
----
