COMMITMENT AGREEMENT
This COMMITMENT AGREEMENT (this "Agreement") dated as of August 16, 1999,
is made by and between Comercializadora Lufravic, S.A. de C.V., a Mexican
sociedad an nima de capital variable ("Lufravic"), and Telscape International
Inc., a corporation incorporated under the laws of Texas ("Telscape", and
collectively with Lufravic, the "Parties").
WHEREAS, each of the Parties is an entity duly organized and validly
existing under the laws of their respective places of incorporation.
WHEREAS, it is the intention of Recovery Equity Investors 11, L.P. a
limited partnership incorporated under the laws of the State of Delaware, U.S.A.
("Recovery"), subject to certain terms and conditions, to invest in the capital
stock of Telscape by way of subscription and payment of Series C Preferred Stock
shares to be issued by Telscape (the "Investment" and the date on which the
Investment occurs, the "Investment Date").
WHEREAS, on the Investment Date, Recovery and Telscape intend to enter into
a number of agreements and other governing documents (the "Closing").
WHEREAS, at Closing, Recovery will effectively hold an equity participation
in the capital stock of Telscape.
WHEREAS, Telscape is interested in having Lufravic participate, subject to
the terms and conditions set forth herein, in the capital stock of Telscape and
therefore become a shareholder thereof if, and to the extent that, the
Investment is made by Recovery in the capital stock of Telscape.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and obligations hereinafter set forth, the Parties hereto,
intending to be legally bound, hereby agree as follows:
1. COMMITMENT. Subject to the terms and conditions set forth herein,
Telscape hereby commits itself to grant to Lufravic, at Closing, 400,000 (four
hundred thousand) common shares representing the capital stock of Telscape
(subject to any restrictive legend required by the Securities Act of 1993, as
amended), and issue in favor of Lufravic a warrant to purchase 100,000 shares of
common stock of Telscape International, Inc. at a strike price of U.S.$7.50
(Seven Dollars 50/100 U.S.) with an expiration date of 5 (five) years from date
of issuance. The warrant shall be issued substantially in the form attached
hereto as Exhibit 1. For the purposes hereinabove provided, Lufravic will be
entitled to attend the Closing, so as to receive at such time the shares and the
warrant.
2. ACKNOWLEDGEMENT. Lufravic acknowledges and agrees that at time of Closing
it will not hold any Series "N" shares issued by Telereunion, S.A. de C.V. 3.
3. TERMINATION. The provisions of this Agreement and the rights and
obligations created thereby shall terminate in respect of all Parties if the
Investment is not made.
4. AMENDMENT AND WAIVER. Any provision of this Agreement may be altered,
supplemented, amended, or waived by the unanimous written consent of all Parties
herein. Such alteration, supplement, amendment or waiver shall be binding upon
all Parties. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
5. ASSIGNMENT. Except as otherwise expressly provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and permitted assigns of each of the Parties. No such
assignment shall relieve any party from its obligations hereunder.
6. NOTICES. All notices, requests and other communications to any party
shall be in writing (including telex, facsimile transmission or similar writing)
and shall be given to such party by messenger, telex, or facsimile transmission
(a) at its address, facsimile number or telex number set forth on the signature
pages hereof, or (b) such other address, facsimile number or telex number as a
party may hereafter specify for the purpose by notice to each of the other
Parties. Each such notice, request or other communication shall be effective (i)
if given by telex, when such telex is transmitted to the telex number specified
in this Section and the appropriate answer back is received, (ii) if given by
facsimile transmission, when transmitted to the facsimile number specified in or
pursuant to this Section 6 and electronic confirmation of receipt is received,
or (iii) if given by messenger or any other means, when delivered at the address
specified in or pursuant to this Section 6.
7. COUNTERPARTS. This Agreement may be executed in two or more counterparts
and each counterpart shall be deemed to be an original and which counterparts
together shall constitute one and the same agreement of the Parties hereto.
8. SECTION HEADINGS. Headings contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit, or extend the scope or
intent of this Agreement or any provisions hereof.
9. GOVERNING LAW. For any and all matters concerning the interpretation and
enforcement of this Agreement, the Parties hereby expressly submit themselves to
the application of the laws of the United Mexican States.
10. ARBITRATION. The Parties agree to use their best efforts to reach an
agreement with respect to any dispute, controversy or difference between them
arising out of or relating to this Agreement. To this end, they shall consult
and negotiate with each other in good faith to reach a just and equitable
solution satisfactory to all Parties. If they do not reach such a solution
within a period of twenty (20) working days, any party may refer the matter to
arbitration.
The arbitration shall be settled in accordance with the International Commercial
Arbitration Rules of the American Arbitration Association.
The disputes or controversies will be settled by one (1) arbitrator which
Lufravic and Telscape shall select. Should the arbitrator fail to be appointed
within the period of one (1) month, the American Arbitration Association,
domiciled in New York, New York, U.S.A., upon request, may choose any person
whom it deems suitable.
The arbitration, including the rendering of the decision, shall take place in
the city of Mexico and shall be administered by the American Arbitration
Association, unless otherwise agreed by the Parties. The arbitration shall be
conducted in Spanish. Any decision or arbitral award shall be based on the
provisions of this Agreement; provided, however, that to the extent that the
subject matter for the decision or award is not set forth within this Agreement,
it shall be based on the laws of the United Mexican States.
The Parties agree that the arbitration award: (i) shall be conclusive, final and
binding upon the corresponding Parties to the arbitration; (ii) shall be the
sole and exclusive remedy between the Parties regarding any and all claims and
counterclaims presented to the arbitrator, and (iii) if containing elements of
injunctive relief may be made in such interim manner (pending final resolution
of the controversy presented) as the arbitrator may deem appropriate to protect
the interests of any aggrieved or potentially aggrieved party.
The Parties further acknowledge that, according to Mexican law, prior to or
during the arbitration process any of them may request a competent court to
adopt preventive measures. To this end, the Parties expressly agree to submit
themselves to the preventive measures ("Medidas Preparatorias, de Aseguramiento
y Precautorias") contained in the Titulo Cuarto, Capitulo Unico of the Mexican
Codigo Federal de Procedimientos Civiles, and that they will abide by any such
measures so adopted by a competent court.
The Parties also agree: (i) that their decision to resolve their disputes by
arbitration as provided in this Agreement is an explicit submittance to the
enforcement and execution of the arbitration award and any judgment thereon; and
(ii) that the arbitration award and any judgment thereon, if unsatisfied, may be
entered in and shall be enforceable by the courts and governmental agencies of
any nation having jurisdiction over the person or property of the party against
whom the arbitration award has been rendered.
In the event any party to this Agreement commences legal proceedings to enforce
the arbitration award, the expenses of such litigation (including reasonable
attorney's fees and costs of court awarded by a court of competent jurisdiction)
shall be borne by the party or Parties not prevailing therein.
The validity of this clause shall be governed by the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (New York, July
10, 1958), to which the United Mexican States and the United States of America
are Parties.
Notwithstanding the foregoing, the Parties will obtain the agreement of
arbitrator to the following: (i) the arbitrator shall provide a written ruling,
stating in separate sections the finding of fact and conclusions of law on which
their ruling is based, (ii) their ruling shall be due no later than ninety (90)
days after their final hearing and within twelve (12) months after commencement
of the arbitration, and (iii) any arbitration award shall include the expenses
of such arbitration (including reasonable attorney's fees, experts' fees and the
arbitrator's fees) such that all such expenses shall be borne by the party or
Parties not prevailing therein.
11. WAIVER OF IMMUNITY. To the extent that any party has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid or execution, or otherwise) with respect to itself or its property, such
party hereby irrevocably -waives such immunity in respect of its obligations
under any of this Agreement to the extent permitted by applicable law and,
without limiting the generality of the foregoing, agrees that the waivers set
forth in this Section 11 shall have effect to the fullest extent permitted under
the Foreign Sovereign Immunities Act of 1976 of the United States of America and
are intended to be irrevocable for purposes of such Act.
12. LANGUAGE. This Agreement is executed in English and Spanish versions,
both of which are binding for the Parties, it being understood that in the event
of doubt as to the interpretation of the documents or any inconsistency between
both versions, the Spanish version shall prevail in all cases.
13. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the Parties hereto respecting the subject matter hereof and supersedes all prior
agreements, discussions and understandings with respect thereto.
14. CUMMULATIVE RIGHTS. The rights of each of the Parties under this
Agreement are cumulative and in addition to all similar and other rights of the
Parties under other agreements.
15. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under any present or future law, and if the rights or
obligations of the Parties under this Agreement shall not be materially and
adversely affected thereby (a) such provision shall be fully severable, (b) this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof, (e) the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom, and (d) in lieu of such illegal, invalid, or unenforceable
provision, there shall '6e added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Parties or the duly authorized officers of each of the Parties, as
appropriate, effective as of the date first written above.
Telscape International, Inc.
By: [SIGNATURE]
Name: Xxxx Xxxxx
Title: President
Address for notices:
0000 Xxxx Xxx, Xxxx. Xxxxx 0000
Xxxxxxx, XX 00000
Fax:
Tel:
Comercializadora Lufravic, S.A. de C.V.
By: [SIGNATURE]
Name: Xxxxxxx Xxxxxx Plaza
Title: President
Address for notices:
Xxxxxx 161 Col. Nuevo Xxxxxxx
XX 11590
Fax:
Tel: 00000000
