ENGLISH TRANSLATION
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AGREEMENT FOR THE PROVISION OF LONG DISTANCE SERVICES EXECUTED BETWEEN ATSI
COMUNICACIONES, S.A. DE C.V. HEREINAFTER REFERRED TO AS ATSI, REPRESENTED BY
LIC. XXXXX XXXXX XXXXXXXX DE STEFANO AND TELEFONOS DE MEXICO, S.A. DE C.V.,
HEREINAFTER REFERRED TO AS TELMEX, REPRESENTED BY LIC. XXXXXX XXXXXXXXX XXXXXXX
IN ACCORDANCE WITH THE FOLLOWING RECITALS AND CLAUSES:
RECITALS
1, ATSI states through its representative:
a) That it is a Mexican corporation and incorporated in accordance with
Mexican laws as shown in corporate charter number 67,169 on August 9, 1994
before Lic. Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Notary Public No. 16 of
Mexico City, D.F. and inscribed in the Public Commercial Registry of the
Federal District under File No. 190734.
b) That it modified its bylaws for the purpose of changing its name to ATSI
Comunicaciones, S.A. de C.V. as shown in charter number 28310 on September
19, 2000 granted before Lic. Francisco Xxxxxx Xxxxxxxxx Xxxxxx, Notary
Public No. 173 of Mexico City.
c) That it has a concession granted by the Federal Government through the
Ministry to install, operate and exploit a Public Telecommunications
Network on June 4, 1998. A copy of the Concession with all its Addenda and
Amendments to date are attached to this Agreement as Appendix I "A".
d) That its legal representative has sufficient power to bind the company to
the terms of this Agreement as stated in certified copy Number 28312 dated
September 19, 2000 granted before Lic. Francisco Xxxxxx Xxxxxxxxx Xxxxxx,
Notary Public No. 173 of Mexico City and attached to this Agreement as
Appendix II "A".
e) That it has no pending lawsuit, judgment, administrative or any other kind,
procedure that affect or could affect its financial
condition or its operations, its assets or the legality of this Agreement.
II, TELMEX states through its representative:
a) That it is a Mexican corporation and incorporated in accordance with
Mexican laws as shown in corporate charter number 34,726 on December 23,
1947 before Lic. Xxxxxxxx Xxxxxxxxx Xxxxxxx, Notary Public No. 54 of Mexico
City, D.F. and inscribed in the Public Commercial Registry of the Federal
District under File No. 5229
b) That it has a concession granted by the Federal Government through the
Ministry to install, operate and exploit a Public Telecommunications
Network for a period of 50 years commencing on March 10, 1976 as published
in the Official Gazette on March 31, 1976 and the modification to its
concession on August 10, 1990 published in the Official Gazette on December
10, 1990. A copy of the Concession with all its Addenda and Amendments to
date are attached to this Agreement as Appendix I "B".
c) That its legal representative has sufficient power to bind the company to
the terms of this Agreement as stated in certified copy Number 106170 dated
July 4, 1995 granted before Lic. Xxxxxx Xxxx Xxxxxxxxx, Notary Public No.
54 of Mexico City and attached to this Agreement as Appendix II "B".
d) That it has no pending lawsuit, judgment, administrative or any other kind,
procedure that affect or could affect its financial condition or its
operations, its assets or the legality of this Agreement.
III. The Parties agree that the Agreement be governed by the following:
CLAUSES
FIRST. OBJECTIVE
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Upon the date that ATSI begins sending traffic for its termination by Telmex and
in accordance with the Requests for Long Distance Services, Telmex shall provide
Long Distance Services as required by ATSI.
Both parties agree that all services under this Agreement will be provided only
when a consideration in writing has been agreed to except for what is
established in paragraph 14.2 of this Agreement.
The Long Distance Services will be governed by the Clauses of this Agreement and
particularly by the conditions established in the Addendums listed below in
addition to those agreed upon from time to time by the parties according to the
terms established in Paragraph 14 of this Agreement.
Addendum Objective and Contents
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A Interconnection Points
B Long Distance Services Requests
C Rates and Discount Plans
The Addendums above as well as any other agreed to by the parties and expressly
related with this Agreement will be governed by the terms and conditions
contained in this Agreement.
In the event of any discrepancy between the Agreement and any Addendums, the
Agreement will prevail.
1.2 Long Distance Services Requests
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ATSI shall request from Telmex the Long Distance Services at the monthly
meetings to be held between the Parties on the date and location the Parties
agree to. At the same time the Parties will execute a Long Distance Services
Request that will contain the agreements reached at such meeting, including,
without limitation the commencement date and city where services are requested
in the understanding that the agreements reached at the monthly meeting referred
to will be contained in the Long Distance Service Request duly signed by the
Parties.
The Long Distance Services will be provided within the timeframe the Parties
agree to at the monthly meeting. Nevertheless, in the event of not agreeing to
a specific date to provide the services, the Long Distance Services will be
provided within 180 calendar days of the meeting held in the understanding that
Telmex shall put forth its best
efforts so that the services are provided within 90 days of the meeting.
Nonetheless, within three months of the execution of this Agreement, ATSI shall
provide Telmex an estimate of its future monthly needs for Long Distance
Services for a minimum period of three years to be included on the Form of
Estimate of Demand for Long Distance Services contained in an Addendum that the
Parties agree to in accordance with Paragraph 15 of this Agreement. ATSI shall
ratify or update the Estimate of Demand for Long Distance Services annually and
at least six months before the end of each year. This Estimate of Long Distance
Services does not bind ATSI to utilize them nor Telmex to acquire any type of
equipment or make modifications or changes to its infrastructure. The requests
for Long Distance Services executed by the Parties will be used by Telmex as a
base to calculate the infrastructure required to provide long distance services,
ATSI agrees to provide Telmex at least 70% of the traffic referred to in its
monthly service request.
Each semester Telmex shall verify if ATSI has complied with the above
stipulation of providing Telmex with 70% of the traffic referred to in its
monthly service request. If it is determined that ATSI has not delivered at
least 70% of the traffic agreed to ATSI will be subject to the penalty specified
in Paragraph 2.3. The Parties agree that the commitment of traffic shall apply
only during the first year after implementation of the services included in each
service request in the understanding that if the total amount of traffic
delivered by ATSI to Telmex for each service request during a period of six
months corresponds to 70% of the traffic the penalty shall not apply.
Since the Long Distance Services will be for a minimum term of one year, the
parties agree that in the event ATSI requests in writing the cancellation or
address change of the interconnection of any Long Distance Service provided by
Telmex before the minimum term expires, ATSI shall pay Telmex the installation
expenses of interconnection divided by 12 and multiplied by the number of months
remaining to complete one calendar year plus 50% of the monthly rate for such
lines. After one year of delivery of the services no penalty shall apply.
However, Telmex must install the capacity as well as have available the
circuits, central offices, ports, services, lines and other elements of its Long
Distance Network necessary to satisfy the demand of Long Distance Services
within the terms established in this Paragraph as presented by ATSI in its
Service Requests always and when ATSI is current in its payment obligations
established in this Agreement
1.3 Responsibilities of the Parties
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Each Party shall be responsible for providing its own Long Distance Connection
Ports, systems, programs and other equipment required in its own Central Offices
and Installations. As well Telmex shall be responsible for installing the
lines required in the understanding that in the event that ATSI does not comply
with the delivery to Telmex of 70% of the traffic for its Long Distance Services
for six months of services in accordance with the contained in the paragraph
above, ATSI shall pay Telmex the installation expenses for the lines contained
in each service request where ATSI did not comply divided by 2 plus 50% of the
rate for the monthly recurring of each line, rates that Telmex has registered
with the Federal Telecommunications Commission. ATSI shall be responsible for
providing without charge access to its infrastructure and any locations where
Telmex's Transmission equipment is collocated that includes electrical power,
air conditioning and other facilities required as well as access to those sites
24/7/365.
SECOND. Consideration
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ATSI agrees to pay Telmex the amounts corresponding to the Long Distance
Services as contained in Addendum C of this Agreement.
In any event, the amounts are subject to the Value Added Tax and any other
applicable tax.
2.2 Modifications
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In the event that ATSI modifies the Long Distance Service Requests or Technical
Agreements and as a result of such modification the
original costs directly related with the Long Distance Services would increase,
ATSI shall upon previous agreement with Telmex, pay the amount corresponding to
the original amount plus an amount agreed to by the parties that reflects the
increase in its costs. If such agreement is not reached between the Parties,
Telmex may deny such modifications to such Service Request. Such denial will not
be a cause for termination of this Agreement and the Long Distance Service will
continue to be provided as originally agreed to.
2.3 Other Considerations
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If in the future the Parties agree that Telmex shall provide additional services
other than those contained in this Agreement, the consideration for such
Services will be agreed to by both Parties previous to the provision of services
2.4 Payment Location
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Any consideration, expense or reimbursement owed by Telmex will be paid by
Telmex at ATSI's address. As well, any consideration, expense or reimbursement
owed by ATSI will be paid by ATSI at Telmex's address.
2.5 Payment Terms
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For the payment of the considerations for the Long Distance services of this
Agreement, the following payment terms shall apply:
2.6 Invoices
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Telmex shall send ATSI a monthly invoice to the address stated in this Agreement
for the Long Distance Services provided in the previous month. Said invoices
shall have a complete description of the Long Distance Services provided during
such period and any traffic and technical information agreed to by the Parties
Within eighteen (18) calendar days of receipt of the invoice, ATSI shall review
such invoices and if necessary, dispute any charges. If ATSI does not dispute
any charges in this timeframe all charges shall be considered accepted.
2.7 Payment
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ATSI shall pay Telmex in Mexican pesos through a check or cash, deposit in
account or any other method agreed to by the Parties within eighteen (18)
calendar days of receipt of invoice.
THIRD. TECHNICAL AGREEMENTS
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For the provision of the Long Distance Services, ATSI and TELMEX shall agree to
follow the procedures and Technical Agreements established by mutual agreement
as established in this Agreement.
TELMEX may introduce modifications, variations or technical changes to the
Technical Agreements and shall be documented by both Parties.
FOURTH. CONFIDENTIALITY
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The parties acknowledge that Confidential Information handled between them will
be the exclusive property of the provider of the information. Not under any
circumstance will confidential information be considered as property of both
Parties.
Confidential information may not be divulged by the receiving party without the
previous consent in writing of the party providing such information.
The Parties may only provide confidential information to employees, agents,
consultants, representatives or any person with a need to know.
The Parties may not make photographic copies without the written consent of the
other Party.
Notwithstanding, the Parties shall not be obligated to maintain as Confidential
Information that information obtained under the following circumstances:
a) that was previously known by the receiving party;
b) that was developed or elaborated independently by or from the
receiving party or legally received, free of restrictions from another
source with the right to divulge;
c) that is or forms part of public knowledge;
d) that is received legitimately from a third party and does not violate
and confidentiality obligation.
FIFTH. Default
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The Agreement may be terminated if any of the following events occur:
1. If any of the Parties concessions were to be revoked by the Mexican
government.
2. If ATSI does not pay Telmex amounts exceeding 1,750,000 including late
fees for more than thirty (30) days following the payment date.
3. In the event ATSI utilizes the Services to terminate, transport or
resend switched public traffic originating in another city or country
as well as callback and bypass traffic.
SIXTH. Term.
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The Agreement shall be effective for one year upon execution of this Agreement
unless terminated for any causes of default. At the end of the first year, any
party may terminate this Agreement by giving thirty (30) days written notice to
the other Party of its intent to terminate this Agreement
SEVENTH. Guaranty.
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During the term of this Agreement ATSI shall maintain at its own cost a bond to
guarantee payment of the considerations for an amount that will cover at least
120% of the estimated amount for three months of services. For the first year
the bond shall be $600,000 issued by a Mexican Bond Institution. The bond shall
be subject to the terms of the Federal Institution and Bond Law. Such bond
shall be delivered no more than 15 days after the execution of this Agreement.
EIGHTH. Temporary Suspension.
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In the event a major disaster would arise that would temporarily impair Telmex
from providing Long Distance Services under the terms of this Agreement, the
effect of this Agreement shall be temporarily suspended and the Parties shall
agree on any extraordinary actions or services required to reestablish and
guarantee the continuance of the Long Distance Services.
NINTH. Assignment.
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ATSI as well as Telmex agree to fulfill its obligations under this Agreement and
therefore the rights and obligations of this Agreement shall not be assigned,
burdened or transmitted without the previous consent in writing from the other
Party, consent, which shall not be delayed. Such consent, however, shall not be
necessary in the event of Telmex desiring to assign its receivables under this
Agreement.
TENTH. Relationship.
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All the Long Distance Services provided by Telmex to ATSI shall be by personnel
authorized, contracted by and paid by Telmex.
ELEVENTH. Notices.
All notices given under this Agreement shall be sent to the following:
ATSI COMUNICACIONES: Xxxxxxxxxxx Xxx Xx. 000
Xxxxxxx Xxx Xxxxx
Xxxxxx, Distrito Federal
Telephone: 00 00 00 00
Attn: Ing. Xxxxx Xxxxxxxx Xxxxx
TELMEX: Telefonos de Mexico, S.A. de C.V.
Parque Xxx 000 0 Piso, Oficina 000
Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxxx
XX 00000
Telephone: 00-00-00-00
00-00-00-00
Fax: 00-00-00-00
Attn: Lic. Xxxxxx Xxxxxxxxx Xxxxxxx
TWELFTH. Governing Law.
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This Agreement shall be governed by the laws of Mexico City, Federal District.
The Parties hereby agree to waive any other jurisdiction because of present or
future domicile.
THIRTEENTH. Amendment.
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This Agreement may be amended or modified only by written instrument and
executed by both Parties.
This Agreement is executed on January 18, 2002 in Mexico City, D.F.
ATSI COMUNICACIONES, TELEFONOS DE MEXICO
S.A. DE C.V. S.A. DE C.V.
/s/ Xxxxx Xxxxx Xxxxxxxx de Stefano /s/ Xxxxxx Xxxxxxxxx Xxxxxxx
Legal Representative Legal Representative
/s/ Witness /s/ Witness