Exhibit 10.21
BUYING AND SELLING CONTRACT ON INSTALLMENTS WITH RESERVATION OF DOMAIN, ENTERED
INTO ON THE FIRST PART BY IBM DE MEXICO, COMERCIALIZACION Y SERVICIOS, S.A. DE
C.V., REPRESENTED BY XX. XXXXXXX XXXXX XXXX, AND ON THE SECOND PART, BY AMERICAN
TELESOURCE INTERNATIONAL DE MEXICO, S.A. DE C.V., REPRESENTED BY XX. XXXXXX X.
XXXXX, WHO HENCEFORTH WILL BE CALLED "IBM" AND THE "PURCHASER", RESPECTIVELY,
AND CONJOINTLY WILL BE CALLED "THE PARTIES", IN ACCORDANCE WITH THE FOLLOWING
STATEMENTS AND CLAUSES.
S T A T E M E N T S
I. "IBM" STATES:
A. THAT IT IS A CORPORATION OF VARIABLE CAPITAL, LEGALLY CHARTERED IN
ACCORDANCE WITH THE LAWS OF MEXICO, THROUGH PUBLIC WRIT NUMBER 51602, DATED
JANUARY FIRST, 1997, GRANTED BEFORE NOTARY PUBLIC NUMBER 103 OF THE FEDERAL
DISTRICT, AND REGISTERED IN THE PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF THE
SAME CITY IN THE COMMERCIAL SECTION, UNDER MERCANTILE NUMBER 218337.
B. THAT ITS LEGAL REPRESENTATIVE, XX. XXXXXXX XXXXX XXXX, HAS SUFFICIENT POWERS
TO SIGN THE PRESENT CONTRACT, AND WHICH HAVE NOT BEEN REVOKED NOR AMENDED IN ANY
MANNER WHATSOEVER, AS CAN BE SEEN IN PUBLIC WRIT NUMBER 100695, DATED MARCH 5TH,
1997, GRANTED BEFORE NOTARY PUBLIC 116 OF THE FEDERAL DISTRICT, AND THE
NECESSARY STEPS FOR ITS REGISTRY IN THE PUBLIC REGISTRY OF PROPERTY AND COMMERCE
ARE BEING TAKEN.
II. THE "PURCHASER" STATES:
A. THAT IT IS A CORPORATION OF VARIABLE CAPITAL, LEGALLY CHARTERED UNDER THE
LEGISLATION OF MEXICO THROUGH THE PUBLIC WRIT NUMBER 19,977 DATED JUNE
TWENTIETH, 1995, GRANTED BEFORE NOTARY PUBLIC NUMBER 173 OF MEXICO, F.D., AND
REGISTERED IN THE PUBLIC REGISTRY OF COMMERCE OF THE SAME CITY, UNDER THE NUMBER
202,960, DATED AUGUST FIRST, 1995.
B. THAT ITS LEGAL REPRESENTATIVE, XX. XXXXXX XXXXX XXXXX, HAS THE SUFFICIENT
POWERS TO SIGN THE PRESENT CONTRACT, EMPOWERMENT
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WHICH HAS NOT BEEN REVOKED NOR MODIFIED IN ANY MANNER WHATSOEVER, AS CAN BE SEEN
IN THE PUBLIC WRIT MENTIONED IN THE PREVIOUS STATEMENT.
THEREFORE, "THE PARTIES" ACCEPT TO SUBMIT THEMSELVES TO THE FOLLOWING:
C L A U S E S
FIRST. OBJECT
THE PRESENT BUYING AND SELLING CONTRACT IN INSTALLMENTS WITH RESERVATION OF
DOMAIN, ESTABLISHES THE TERMS AND CONDITIONS FOR THE PURCHASE AND SALE OF
MACHINERY THAT IS DESCRIBED IN "ATTACHMENT A".
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS CONTRACT AND ITS
ATTACHMENTS, "IBM" AGREES TO SELL THE GOODS SPECIFIED IN "ATTACHMENT A", WHICH,
ONCE SIGNED BY "THE PARTIES", FORMS AN INTEGRAL PART OF THE PRESENT INSTRUMENT.
ON ITS PART, THE "PURCHASER" AGREES TO PAY "IBM" AS A COUNTERCONSIDERATION THE
AMOUNT STIPULATED IN CLAUSE SEVENTH, "PRICE AGREED ON".
SECOND. LIST OF ATTACHMENTS
THE ATTACHMENTS THAT FORM AN INTEGRAL PART OF THE PRESENT CONTRACT ARE THE ONES
MENTIONED BELOW, AND ARE REPRODUCED SPECIFICALLY IN THE TEXT OF THE PRESENT
CONTRACT.
ATTACHMENT "A" LIST OF PRODUCTS
ATTACHMENT "B" FINANCING CONDITIONS
ATTACHMENT "C" ADDITIONAL WARRANTIES
ATTACHMENT "D" PAYMENT SCHEDULE.
THESE ATTACHMENTS CAN MAKE REFERENCE TO OTHER CONTRACTS ENTERED INTO BETWEEN THE
PARTIES, AND ARE APPLICABLE TO ANY OF THE PRODUCTS. IN CASE OF A CONTROVERSY
BETWEEN THIS CONTRACT AND THE TERMS AND CONDITIONS OF THE PURCHASE ORDERS
SPECIFIED IN CLAUSE THIRD FOLLOWING, "CONTRACTS FOR GOODS AND RELATED SERVICES",
THE PRESENT CONTRACT WILL PREVAIL.
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THIRD. CONTRACTS FOR GOODS AND RELATED SERVICES
"THE PARTIES" AGREE TO FORMALIZE SIMULTANEOUSLY PURCHASE ORDERS SPECIFIED IN
"ATTACHMENT A" THAT INTEGRATE THE PRODUCTS TO BE FURNISHED BY "IBM", IN
ACCORDANCE WITH THE TERMS AND CONDITIONS PREVIOUSLY PRESENTED TO THE
"PURCHASER", AS WELL AS THE STIPULATIONS OF THIS CONTRACT AND ITS OTHER
ATTACHMENTS.
FOURTH. SCOPE
IN VIEW OF THE PRESENT CONTRACT, "IBM" SELLS THE PRODUCT IN ACCORDANCE WITH THE
STIPULATIONS OF "ATTACHMENT A".
FOR THOSE CASES IN WHICH AS PART OF THE PRODUCTS OBJECT OF THE PRESENT CONTRACT,
NON-"IBM" PROGRAMS HAVE BEEN CONSIDERED, WHETHER OPERATIVE PROGRAMS OR COMPUTER,
AND/OR APPLICATION PROGRAMS, THESE WILL BE LISTED AND DETAILED IN "ATTACHMENT
A". NEVERTHELESS, INSPITE OF THE FACT THAT THE BUYING AND SELLING CONTRACT
INCLUDES THE PROGRAMS, THE CONTRACTS FOR THEIR USE IN VIRTUE OF THEIR
CORRESPONDING LICENSES MUST BE ENTERED INTO DIRECTLY BETWEEN THE SUPPLIER
DESIGNATED BY "IBM" AND THE "PURCHASER".
THIS CONTRACT DOES NOT INCLUDE CHARGES REGARDING ANNUAL MAINTENANCE FOR THE
SOFTWARE OFFERED BY THE SUPPLIER. IF THE "PURCHASER" DECIDES TO ACQUIRE IT, THE
"PURCHASER" MUST ENTER INTO THE RESPECTIVE CONTRACT DIRECTLY WITH THE SUPPLIER.
FIFTH. PERSONNEL
"THE PARTIES" AGREE THAT "IBM" CAN SUBCONTRACT WITH THIRD PARTIES ANY OF THE
PRODUCTS OBJECT OF THIS CONTRACT.
EACH ONE OF THE PARTIES ASSUMES THE RESPONSIBILITY OF SUPERVISION, MANAGEMENT,
AND CONTROL OF ITS OWN PERSONNEL FOR THE ACTIVITIES IT SHOULD CARRY OUT IN
ACCORDANCE WITH THE STIPULATIONS OF THIS CONTRACT.
SIXTH. RESPONSIBILITY FOR ITS USE
ONCE THE PRODUCTS HAVE BEEN DELIVERED BY "IBM", THE "PURCHASER" WILL HAVE THE
RESPONSIBILITY OF THE USE AND RESULTS THAT MAY BE
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OBTAINED FROM THE PRODUCTS THAT "IBM" FURNISHES, AS WELL AS OF OTHER EQUIPMENT,
PROGRAMS AND SERVICES USED WITH SAID PRODUCTS.
SEVENTH. PRICE AGREED ON
THE "PURCHASER" BINDS HIMSELF TO PAY "IBM" AS A COUNTERCONSIDERATION OF THE
GOODS MATTER OF THE PRESENT CONTRACT, THE AMOUNTS THAT ARE DETAILED IN
"ATTACHMENT A" AS ONLY CHARGES, IN ACCORDANCE WITH THE PAYMENTS SCHEDULE HEREIN
SPECIFIED.
ALL THE TAXES DERIVED FROM THE OPERATIONS CONTAINED IN THE PRESENT CONTRACT
SHALL BE APPLICABLE TO THE PARTY TO WHICH PAYMENT CORRESPONDS, IN ACCORDANCE
WITH THE PRESENT FISCAL LEGISLATION.
EIGHTH. INVOICES
"IBM" WILL INVOICE THE ONLY CHARGES IN ACCORDANCE WITH THE PAYMENT SCHEDULE
INDICATED IN "ATTACHMENT B". PAYMENTS TO "IBM" BY THE "PURCHASER", WILL BE MADE
IN FAVOR OF "IBM DE MEXICO, COMERCIALIZACION Y SERVICIOS, S.A. DE C.V.", IN THE
FORM, OFFICE HOURS, AND THE PLACE THAT "THE PARTIES" AGREE ON.
NINTH. CHANGES IN THE CONTRACT
ANY OF "THE PARTIES" DURING THE LIFE OF THIS CONTRACT CAN REQUEST IN WRITING
CHANGES TO THE SAME, OR TO ANY OF ITS ATTACHMENTS. IF THE CHANGE IS ACCEPTED BY
BOTH PARTIES, "IBM" WILL PREPARE A NEW LIST OF PRODUCTS OR SERVICES, AND THE
CHARGES THAT WILL DESCRIBE THE CHANGE REQUESTED AND WILL STIPULATE THE
MODIFICATIONS TO THE ORIGINAL LIST, AND "THE PARTIES" MUST SIGN IT TO MAKE IT
VALID PREVIOUS TO ITS IMPLEMENTATION.
ONCE THE CHANGES HAVE BEEN AGREED ON, "THE PARTIES" MUST SIGN THE CORRESPONDING
AMENDING DOCUMENT, WHICH WILL FORM AN INTEGRAL PART OF THE PRESENT CONTRACT.
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TENTH. CONFIDENTIAL INFORMATION
"THE PARTIES" AGREE THAT THE INFORMATION PROVIDED IN VIEW OF THIS CONTRACT WILL
BE CLASSIFIED AS CONFIDENTIAL, AND THE RECEIVER MUST HAVE THE SAME CARE AND
CONFIDENTIALITY THAT IT HAS WITH ITS OWN INFORMATION.
ELEVENTH. PATENTS AND COPYRIGHTS
"THE PARTIES" RECOGNIZE AND ACCEPT THAT THE SUPPLIER WILL BE RESPONSIBLE OF ANY
CLAIM RELATED AND DERIVED FROM ANY MACHINE OR PROGRAM FURNISHED BY THEIR
SUPPLIERS THAT MAY INFRINGE ANY PATENT OR COPYRIGHT IN MEXICO.
TWELFTH. LIMIT OF RESPONSIBILITIES
WITH THE EXCEPTION OF THE STIPULATIONS AFOREMENTIONED IN THE PREVIOUS CLAUSE,
IBM'S TOTAL RESPONSIBILITY REGARDING ANY NON COMPLIANCE WITH THE PRESENT
CONTRACT WILL BE LIMITED TO THE AMOUNT EFFECTIVELY PAID BY THE "PURCHASER" OF
THE PRODUCTS AND SERVICES DESCRIBED IN "ATTACHMENT A".
NEITHER OF "THE PARTIES" WILL BE RESPONSIBLE FOR THE NON COMPLIANCE OF ITS
OBLIGATIONS MOTIVATED BY FORCE MAJEURE.
THIRTEENTH. WARRANTIES
THE WARRANTY SPECIFICATIONS FOR ALL THE GOODS FURNISHED IN VIEW OF THE PRESENT
CONTRACT AND THAT ARE DETAILED IN "ATTACHMENT A", WILL BE THE RESPONSIBILITY OF
"IBM" THROUGH THE "SUPPLIER" SELECTED BETWEEN "IBM" AND THE "PURCHASER". THE
"PURCHASER" AGREES THAT "IBM" WILL NOT BE RESPONSIBLE FOR THE EQUIPMENT, ITS
MAINTENANCE, AND SPARE PARTS ONCE THE WARRANTY PERIOD HAS ELAPSED.
FOURTEENTH. PROPERTY
THE PROPERTY OF THE GOODS FURNISHED IN ACCORDANCE WITH THE PRESENT CONTRACT WILL
BE TRANSFERRED TO THE "PURCHASER" ONCE THE TOTAL AMOUNT OF THE PRICE AGREED ON
HAS BEEN PAID, IN ACCORDANCE WITH THE PAYMENT SCHEDULE DETAILED IN "ATTACHMENT
A".
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FIFTEENTH. ENDING AND CANCELLATION
1. THE PRESENT CONTRACT WILL GO INTO EFFECT ON THE DATE THAT BOTH PARTIES SIGN
IT AND THE DOWN PAYMENT HAS BEEN MADE, AND WILL CONTINUE IN EFFECT UNTIL THE
ENDING OF PAYMENTS BY THE "PURCHASER" ON THE DATE SPECIFIED IN THE MANNER OF
PAYMENT AS PER "ATTACHMENT B".
2. ANY OF "THE PARTIES" CAN END THE PRESENT CONTRACT IN CASE OF NON COMPLIANCE
OF THE OTHER PARTY WITH ITS OBLIGATIONS WITHOUT NEED OF JUDICIAL PROCEEDINGS, IF
SAID NON COMPLIANCE IS NOT CORRECTED WITHIN THE THIRTY (30) DAYS FOLLOWING THE
CORRESPONDING NOTICE. IN THIS CASE, AND WHEN "IBM" ENDS THIS CONTRACT, BOTH
PARTIES WILL SUBJECT THEMSELVES TO THE STIPULATIONS IN THE FOLLOWING CLAUSE
SEVENTEENTH.
3. IN CASE THE "PURCHASER" CANCELS THE ORDERS REGARDING THE GOODS SUBJECT THE
PRESENT CONTRACT, THE SAME AGREES TO PAY "IBM" AS A CONVENTIONAL PENALTY 20%
(TWENTY PER CENT) OF THE PRICE OF THE CANCELLED ITEM.
SIXTEENTH. BRAND AND COMMERCIAL NAMES USE
ANY OF "THE PARTIES" WILL USE THE NAME OF THE OTHER NOR OF ANY OF ITS ASSOCIATES
IN ADVERTISING OR PROMOTIONAL MATERIALS, WITHOUT PREVIOUS WRITTEN CONSENT BY THE
AFFECTED PARTY.
SEVENTEENTH. RESERVATION OF DOMAIN
IN ACCORDANCE WITH PROVISIONS ESTABLISHED BY ARTICLE 2312 IN THE CIVIL CODE OF
THE FEDERAL DISTRICT, IT IS EXPRESSLY AGREED BY "THE PARTIES" THAT "IBM"
WITHOLDS THE PROPERTY OF EVERY ITEM OF EQUIPMENT MENTIONED IN "ATTACHMENT A" OF
THIS CONTRACT, AS LONG AS THERE IS ANY AMOUNT PENDING OF PAYMENT BY THE
"PURCHASER" IN "IBM" FAVOR. THE LACK OF TIMELY PAYMENT OF TWO CONSECUTIVE
PROMISORY NOTES WILL GIVE "IBM" THE RIGHT TO CANCEL THE PRESENT CONTRACT, AS
WELL AS TO EXERT ITS DOMAIN OVER THE EQUIPMENTS MATTER OF THIS OPERATION,
WITHDRAWING THEM FROM THE PURCHASER'S ADDRESS OR TO DEMAND IMMEDIATELY THE
PAYMENT IN FULL OF THE AMOUNT INCLUDING INTERESTS.
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LACK OF COMPLIANCE OF ANY OF THE OBLIGATIONS OF THE "PURCHASER" WILL GIVE "IBM"
THE RIGHT TO CANCEL THE PRESENT CONTRACT, WITHOUT NEED OF JUDICIAL PROCEEDINGS,
BEING ENOUGH THE WRITTEN NOTICE THAT "IBM" DELIVERS TO THE "PURCHASER".
THE FACT THAT "THE PARTIES" DO NOT EXERT THEIR RIGHTS REGARDING ANY LACK OF
COMPLIANCE, WILL NOT BE CONSIDERED AS A WAIVER OF THEM.
"THE PARTIES" AGREE THAT "IBM" WILL PROVIDE THE "PURCHASER" WITH THE INVOICES
CORRESPONDING TO THE EQUIPMENT DESCRIBED IN "ATTACHMENT A" AT THE MOMENT PAYMENT
HAS BEEN MADE OF THE TOTAL AMOUNT OF ITS PRICES PLUS THE INTEREST AGREED ON IN
THIS CONTRACT.
THE "PURCHASER" BINDS HIMSELF TO SAFEGUARD THE EQUIPMENT IN THE ADDRESSES WHERE
THEY WERE INSTALLED. DUE TO THIS FACT, THE "PURCHASER" WITH THE SIGNATURE OF
THIS CONTRACT, ASSUMES THE ROLE OF TRUSTEE FREELY, WITHOUT ANY CHARGE, OF SAID
EQUIPMENT, WITH ALL THE OBLIGATIONES DERIVED FROM THIS ROLE.
EIGHTEENTH. ASSIGNMENT OF RIGHTS
"THE PARTIES" AGREE THAT "IBM" CAN ASSIGN TOTALLY OR PARTIALLY THE RIGHTS
DERIVED FROM THIS INSTRUMENT, SO THAT IT WILL ONLY HAVE THE OBLIGATION, IN ITS
CASE, OF ADVISING THE "PURCHASER" IN WRITING IN ACCORDANCE WITH STIPULATIONS OF
ARTICLE 2030 OF THE CIVIL CODE.
THE "PURCHASER" CANNOT ASSIGN ANY OF THE RIGHTS OF THIS CONTRACT NOR OF ITS
ACCESSORY DOCUMENTS WITHOUT IBM'S PREVIOUS
WRITTEN CONSENT.
NINETEENTH. INSURANCE
THE "PURCHASER" WILL CONTRACT ON HIS OWN, AND WITHOUT THIS BEING CONSIDERED A
PART OF THE PRICE, AN INSURANCE POLICY AGAINST ALL RISKS (FIRE, EARTHQUAKES,
FLOODS, SHORT CIRCUITS, ROBBERTY WITH OR WITHOUT VIOLENCE, ETC.), COVERING THE
EQUIPMENT DESCRIBED IN "ATTACHMENT A" FOR THE TOTAL AMOUNT ALL THE TIME THAT
THIS CONTRACT IS IN EFFECT, AND THE CORRESPONDING
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INSURANCE POLICY WILL BE ISSUED INDICATING A PREFERENTIAL ENDORSEMENT IN FAVOR
OR IBM DE MEXICO, S.A.
THIS INSURANCE POLICY WILL GO INTO EFFECT ON THE DATE WHEN THE EQUIPMENT IS
DELIVERED TO THE PURCHASER'S FACILITIES, AND WILL REMAIN IN EFFECT UNTIL THIS
CONTRACT IS FINALIZED.
THE "PURCHASER" MUST PROVIDE "IBM" EVIDENCE OF HAVING COMPLIED WITH THIS
OBLIGATION WITHIN A MAXIMUM PERIOD OF 30 (THIRTY) NATURAL DAYS STARTING ON THE
DATE OF THE SIGNATURE OF THIS INSTRUMENT.
IN CASE THE "PURCHASER" DOES NOT COMPLY WITH THE AGREEMENT IN THE PREVIOUS
PARAGRAPH, "IBM" WILL CONTRACT THE NECESSARY INSURANCE POLICY, AND THE PURCHASER
BINDS HIMSELF TO PAY "IBM" OR ITS REPRESENTATIVE THE AMOUNT OF THE SAME.
TWENTIETH. ADDRESS
"THE PARTIES" STATE AS THEIR ADDRESSES THE FOLLOWING:
I. "IBM": XXXXXXX XXXXXXX XXXXXXXX 000, XXXXXXX XXXXXXXXXXX XXXXXXX, X.X. 11560,
IN MEXICO, X.X.
XX. THE "PURCHASER": XXXXXX XXXXXX 0, XXXXXXX XXX XXXXX, XXXXXX, D.F., C.P.
06600.
THE "PURCHASER" AGREES THAT HE MUST NOTIFY "IBM" IN WRITING OF ANY CHANGE IN
ADDRESS; OTHERWISE, ANY JUDICIAL OR EXTRAJUDICIAL PROCEEDINGS WILL BE CARRIED
OUT IN THE ADDRESS MENTIONED IN THIS SECTION.
TWENTY FIRST. OTHER EXPENSES
THE "PURCHASER" WILL PAY "IBM" ALL THOSE AMOUNTS INCURRED IN THE REGISTRATION OF
THIS CONTRACT IN THE PUBLIC REGISTRY OF PROPERTY AND COMMERCE.
TWENTY FOURTH. LEGISLATION AND COURTS
FOR THE INTERPRETATION AND COMPLIANCE OF THIS CONTRACT, "THE PARTIES" SUBMIT
THEMSELVES TO THE APPLICABLE LEGISLATION AND JURISDICTION OF THE COURTS OF
MEXICO, D.F., WAIVING THEIR
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PRESENT OR FUTURE RIGHTS THAT THEY MAY HAVE BY REASON OF THEIR ADDRESS OR ANY
OTHER CAUSE.
PERSONAL DATA
"THE PARTIES" STATE THAT THEIR PERSONAL DATA AT PRESENT ARE THE FOLLOWING:
I. "IBM": XX. XXXXXXX XXXXX XXXX, IS A MEXICAN, FORTY ONE YEARS OLD, MARRIED,
GENERAL MANAGER OF THE FINANCING UNIT, AND CORPORATE TREASURER OF IBM DE MEXICO,
X.X.
XX. THE "PURCHASER": XX. XXXXXX X. XXXXX IS A UNITED STATES CITIZEN, THIRTY TWO
YEARS OLD, MARRIED, WITH POWERS OF ATTORNEY, LEGALLY ENTERED INTO THIS COUNTRY.
ONCE THE PRESENT CONTRACT WAS READ, AS WELL AS TERMS AND CONDITIONS APPLICABLE
TO THE RELATIVE PURCHASE ORDERS, "THE PARTIES" RECOGNIZE THAT THEY ARE BOUN BY
ITS DISPOSITIONS, LEAVING WITHOUT EFFECT ANY OTHER PREVIOUS COMMUNICATION,
EITHER VERBAL OR WRITTEN, AND SIGNED BY DUPLICATE AT THE BOTTOM AND ON THE
MARGIN ON THE PREVIOUS PAGES.
ACCEPTED BY ACCEPTED BY
AMERICAN TELESOURCE IBM DE MEXICO,
INTERNATIONAL DE MEXICO, S.A. COMERCIALIZACION Y SERVICIOS,
DE C.V. S.A.
(Signature) (Signature)
XX. XXXXXX X. XXXXX XX. XXXXXXX XXXXX XXXXX
LEGAL POWER OF ATTORNEY LEGAL POWER OF ATTORNEY
(Signature) (Signature)
XX. XXXXX XXXXX DE XX XXXXXXXX XX. XXXXXXXX XXXXXXXXXX XXXXXXX
WITNESS WITNESS
THE PREVIOUS SIGNATURES CORRESPOND TO THE BUYING AND SELLING CONTRACT IN
INSTALLMENTS WITH RESERVATION OF DOMAIN, ENTERED INTO BY AMERICAN TELESOURCE
INTERNATIONAL DE MEXICO, S.A. AND IBM, DATED MARCH 25, 1997, CONTRACT NO.
S1310397-M.
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ATTACHMENT A. LIST OF PRODUCTS
THE FOLLOWING LIST OF IBM AND NON IBM PRODUCTS REPRESENTS THE ONE AND ONLY
COMPLETE COMMITMENT BY IBM IN THIS CONTRACT.
1. TELEPHONE PRODUCTS
THE EQUIPMENT AND ACCESSORIES ARE THE ONES DETAILED BELOW, THAT WILL BE
DELIVERED IN THE SITES INDICATED BY THE PURCHASER INSIDE THE REPUBLIC OF MEXICO.
AMOUNT CONCEPT
300 XP1000 COIN/CREDIT/DEBIT SMART PHONES
17 BACKPLATES
283 PEDESTALS
300 ENCLOSURES
2 UPMS 1200 MODEMS
2 COIN COLLECTORS
2. NET MANAGEMENT PRODUCTS
AMOUNT CONCEPT
2 LICENSES SW PRONET PAYPHONE MANAGEMENT SOFTWARE
7 PC APTIVA 133 MHZ
4 INK JET IBM PRINTERS
300 WIRE KITS FOR INSTALLATION OF WALL TELEPHONES
3. SERVICES
AMOUNT CONCEPT
1 INSTALLATION SERVICES FOR 300 "MART PHONES"
TELEPHONES
1 ADJUSTMENT SERVICES FOR ELECTRICAL INSTALLATIONS
OF 300 TELEPHONES
1 PEDESTAL MOUNTING SERVICES (NON WALL MOUNTING) FOR
3OO TELEPHONES
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4. IBM SERVICES FOR PROJECT MANAGEMENT:
IBM WILL COORDINATE DELIVERY OF THE EQUIPMENT AND PROGRAMS MENTIONED ABOVE AT
XXXXX XXXXXX XXXXXX 0, XXXXXXX XXX XXXXX, XXXXXX, D.F., OR IN ANY OTHER OF THE
ADDRESSES THAT THE PURCHASER EXPRESSLY INDICATES TO IBM INSIDE THE REPUBLIC OF
MEXICO.
PURCHASER'S RESPONSIBILITIES
THE PURCHASER WILL BE TOTALLY RESPONSIBLE OF RECEIPT OF THE EQUIPMENT, PROVIDING
ALL THE SUPPORT NECESSARY FOR THE INSTALLATION OF THE SAME, AS WELL AS THE FINAL
ACCEPTANCE OF THE INSTALLATION.
THE "PURCHASER WILL BE RESPONSIBLE FOR PROVIDING AN ADEQUATE ENVIRONMENT FOR THE
INSTALLATION OF THE EQUIPMENT, IN ACCORDANCE WITH IBM'S SPECIFICATIONS. THE
ACTIVITIES PROGRAMMED WILL BE AGREED ON BETWEEN THE PURCHASER AND IBM.
PRICE AGREED ON
THE TOTAL PRICE OF THE PRODUCTS AND SERVICES DESCRIBED IN THIS ATTACHMENT IS
$957 100.00 (NINE HUNDRED AND FIFTY SEVEN DOLLARS 00/100 U.S. CURRENCY), WHICH
WILL BE PAID BY THE PURCHASER IN ACCORDANCE WITH THE FINANCING PLAN SPECIFIED IN
ATTACHMENT B. THE TOTAL PRICE JUST MENTIONED DOES NOT INCLUDE THE VALUE ADDED
TAX.
ACCEPTANCE CRITERIA
THE PRESENT CONTRACT WILL BE CONCLUDED ON DELIVERY AND INSTALLATION OF THE
PRODUCTS DESCRIBED IN THE PRESENT ATTACHMENT. THE INSTALLATION OF THE PRODUCTS
WILL BE THE SUPPLIER'S RESPONSIBILITY.
WARRANTIES
THE WARRANTIES OF THE IBM PRODUCTS INCLUDED IN THE PRESENT CONTRACT WILL BE
GRANTED DIRECTLY BY "IBM", AND THE WARRANTY OF THE NON "IBM" PRODUCTS WILL BE
GRANTED BY "IBM" THROUGH "THE
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SUPPLIER" SELECTED BETWEEN "IBM" AND THE "PURCHASER", AND IS FOUND SPECIFIED IN
THIS ATTACHMENT.
ONCE THE PRESENT ATTACHMENT A WAS READ, THE PARTIES RECOGNIZE THEY ARE BOUND BY
ITS DISPOSITIONS, LEAVING WITHOUT EFFECT ANY OTHER PREVIOUS COMMUNICATION,
EITHER VERBAL OR WRITTEN, AND SIGNED BY DUPLICATE AT THE BOTTOM AND ON THE
MARGIN ON THE PREVIOUS PAGES.
ACCEPTED BY ACCEPTED BY
AMERICAN TELESOURCE IBM DE MEXICO,
INTERNATIONAL DE MEXICO, S.A. COMERCIALIZACION Y SERVICIOS,
DE C.V. S.A.
(Signature) (Signature)
XX. XXXXXX X. XXXXX XX. XXXXXXX XXXXX XXXXX
LEGAL POWER OF ATTORNEY LEGAL POWER OF ATTORNEY
(Signature) (Signature)
XX. XXXXX XXXXX DE XX XXXXXXXX XX. XXXXXXXX XXXXXXXXXX XXXXXXX
WITNESS WITNESS
THE PREVIOUS SIGNATURES CORRESPOND TO THE BUYING AND SELLING CONTRACT IN
INSTALLMENTS WITH RESERVATION OF DOMAIN, ENTERED INTO BY AMERICAN TELESOURCE
INTERNATIONAL DE MEXICO, S.A. AND IBM, DATED MARCH 25, 1997, CONTRACT NO.
S1310397-M.
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ATACHMENT B. FINANCING CONDITIONS
TERMS AND CONDITIONS OF FINANCING
"IBM" AND THE "PURCHASER" AGREE THAT THE FOLLOWING WILL BE THE TERMS AND
CONDITIONS OF THE BUYING AND SELLING ACTIONS REFERRED TO IN THIS CONTRACT.
TERMS AND CONDITIONS U.S. DOLLARS
COLUMN A COLUMN B
DATE OF DISPOSAL AUGUST 01, 1997 JUNE 01, 1997
1. PRESENT SELLING PRICE 500 000.00 USD 457 100.00 USD
2. VAT ON PRESENT SELLING PRICE 75 000.00 USD 68 565.00 USD
3. DOWN PAYMENT 20%* (1) 100 000.00 USD 91 420.00 USD
4. TOTAL AMOUNT TO BE FINANCED (1+2-3) 475 000.00 USD 434 245.00 USD
5. VARIABLE INTEREST RATE (VIR) 167 857.31 USD
VIR IS THE RESULT OF ADDING THE FOLLOWING:
A. LIBOR RATE (LONDON INTERBANK OFFERED RATE)
B. POINTS AGREED ON
INITIAL VIR OF THIS CONTRACT IS:
LIBOR RATE 5.72%
POINTS AGREED ON 6.00%
INITIAL VIR 11.72%
6. COMMISSION FEE 1.00%* (1A) 1.00%* (1B) 5 000.00 USD 4 571.00 USD
7. TOTAL AMOUNT TO BE DOCUMENTED (4A+4B+5+6A+6B) 1 086 673.10 USD
8. NUMBER OF MONTHLY PAYMENTS 32 MONTHS
9. TOTAL MONTHLY PAYMENTS VARIABLE
10. VAT ON INTEREST AND COMMISSION FEE 15.00% 27 036.90 USD
OF (5)
11. TOTAL AMOUNT OF MONTHLY PAYMENT VARIABLE
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DEFERRED VALUE ADDED TAX PAYMENT
12. DEFERRED VAT ON OPERATION 76 471.99 USD 69 910.69 USD
13. DATE OF PAYMENT JUNE O1, 1997 AUGUST 01, 1997
14. TOTAL AMOUNT OF OPERATION 1 307 947.89
(3A+3B+7+10+12A+12B) USD
PAYMENT
PAYMENTS WILL BE MADE IN UNITED STATES DOLLARS OR EQUIVALENT IN NATIONAL
CURRENCY AT THE EXCHANGE RATE TO PAY LIABILITIES STATED IN FOREIGN CURRENCY,
PAYABLE IN MEXICO, RATE PUBLISHED BY THE BANCO DE MEXICO IN THE DIARIO OFICIAL
DE LA FEDERACION, THAT WILL BE IN EFFECT AT THE MOMENT OF PAYMENT.
THE "PURCHASER" IS BOUND TO LIQUIDATE TOTALLY THE INSTALLMENTS PROGRAMMED IN
ACCORDANCE WITH THE PAY SCHEDULE ATTACHED TO THE PRESENT CONTRACT AS "ATTACHMENT
B".
SAID PAYMENT WILL BE DUE ON THE 10 (TENTH) DAY OF THE CORRESPONDING MONTH. WHEN
THE DATE CITED IS A NON WORKING DAY, IN ACCORDANCE WITH BANK USAGE IN EFFECT IN
MEXICO, THE PURCHASER MUST MAKE THE CORRESPONDING PAYMENT IN THE IMMEDIATELY
PRECEDING WORKING DAY.
THE "PURCHASER" MUST MAKE ALL PAYMENTS IN FAVOR OF IBM DE MEXICO,
COMERCIALIZACION Y SERVICIOS, S.A. DE C.V., IN THE FORM, WORKING HOURS, AND
PLACE THAT "THE PARTIES" AGREE ON.
COMMON INTERESTS
"IBM" AND THE "PURCHASER" AGREE THAT THE AMOUNT OUTSTANDING OF THIS CONTRACT
WILL ACCRUE COMMON INTERESTS AT THE RATE OF 11.72% (ELEVEN POINT SEVENTY TWO PER
CENT) PER ANNUM.
SAID RATE WILL BE RAISED OR LOWERED IF THERE EXISTS A VARIATION IN THE LIBOR
RATE (LONDON INTERBANK OFFERED RATE) AT SIX MONTHS, IN AT LEAST ONE PERCENTAGE
POINT. IN NO CASE THIS ADJUSTMENT WILL BE APPLIED RETROACTIVELY.
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MORATORIUM INTERESTS
IN CASE THAT THE "PURCHASER" DOES NOT COMPLY WITH ANY OF ITS OBLIGATIONS TO PAY
IN FAVOR OF "IBM", THAT ARE STATED IN THIS CONTRACT, THE "PURCHASER" WILL PAY
MORATORIUM INTERESTS AT THE RATE THAT MIGHT RESULT BY MULTIPLYING BY 1.5 (ONE
POINT FIVE) THE COMMON INTEREST RATE MENTIONED IN THE PREVIOUS SECTION DURIGN
ALL THE TIME THAT THIS SITUATION PREVAILS. THE INTERESTS THAT ARE GENERATED
WILL BE PAID MONTHLY TO "IBM" IN THE TERMS OF THE SECTION CALLED PAYMENTS OF THE
PRESENT ATTACHMENT.
DOCUMENTS
THE TOTAL AMOUNT OF THE CREDIT IS DOCUMENTED IN THIS ACT BY MEANS OF 36 (THIRTY
SIX) NOTES PAYABLE ISSUED BY THE "PURCHASER" IN FAVOR OF IBM DE MEXICO,
COMERCIALIZACION Y SERVICIOS, S.A. DE C.V., THAT WILL BE DUE SUCCESSIVELY EVERY
MONTH IN ACCORDANCE WITH THE PRESCRIPTION OF THE SECTION CALLED PAYMENTS OF THE
PRESENT ATTACHMENT. LIKEWISE, THEY CONTAIN THE AMOUNTS OF THE COMMON INTERESTS
ACCRUED, AS WELL AS THE SPECIFICATION OF THE MORATORIUM RATE THAT MIGHT ACCRUE,
IN ACCORDANCE WHAT IS FORESEEN IN THE SECTIONS CALLED COMMON INTERESTS AND
MORATORIUM INTERESTS, RESPECTIVELY.
"THE PARTIES" AGREE THAT "IBM" WILL DELIVER TO THE "PURCHASER" THE INVOICES
CORRESPONDING TO THE GOODS DESCRIBED IN "ATTACHMENT A" AT THE MOMENT OF PAYMENT
OF THE TOTAL AMOUNT OF ITS PRICE PLUS THE INTERESTS AGREED ON IN THIS CONTRACT.
ONCE THE PRESENT ATTACHMENT C WAS READ, "THE PARTIES" RECOGNIZE THAT THEY ARE
BOUND BY ITS DISPOSITIONS, LEAVING WITHOUT EFFECT ANY OTHER PREVIOUS
COMMUNICATION, EITHER VERBAL OR WRITTEN, AND SIGNED BY DUPLICATE AT THE BOTTOM
AND ON THE MARGIN OF THE PREVIOUS PAGES.
16
ACCEPTED BY ACCEPTED BY
AMERICAN TELESOURCE IBM DE MEXICO,
INTERNATIONAL DE MEXICO, S.A. COMERCIALIZACION Y SERVICIOS,
DE C.V. S.A.
(Signature) (Signature)
XX. XXXXXX X. XXXXX XX. XXXXXXX XXXXX XXXXX
LEGAL POWER OF ATTORNEY LEGAL POWER OF ATTORNEY
(Signature) (Signature)
XX. XXXXX XXXXX DE XX XXXXXXXX XX. XXXXXXXX XXXXXXXXXX XXXXXXX
WITNESS WITNESS
THE PREVIOUS SIGNATURES CORRESPOND TO THE BUYING AND SELLING CONTRACT IN
INSTALLMENTS WITH RESERVATION OF DOMAIN, ENTERED INTO BY AMERICAN TELESOURCE
INTERNATIONAL DE MEXICO, S.A. AND IBM, DATED MARCH 25, 1997, CONTRACT NO.
S1310397-M.
17
ATTACHMENT C. ADDITIONAL WARRANTIES
ONCE THE PRESENT ATTACHMENT C WAS READ, "THE PARTIES" RECOGNIZE THAT THEY ARE
BOUND BY ITS DISPOSITIONS, LEAVING WITHOUT EFFECT ANY OTHER PREVIOUS
COMMUNICATION, EITHER VERBAL OR WRITTEN, AND SIGNED BY DUPLICATE AT THE BOTTOM
AND ON THE MARGIN OF THE PREVIOUS PAGES.
ACCEPTED BY ACCEPTED BY
AMERICAN TELESOURCE IBM DE MEXICO,
INTERNATIONAL DE MEXICO, S.A. COMERCIALIZACION Y SERVICIOS,
DE C.V. S.A.
(Signature) (Signature)
XX. XXXXXX X. XXXXX XX. XXXXXXX XXXXX XXXXX
LEGAL POWER OF ATTORNEY LEGAL POWER OF ATTORNEY
(Signature) (Signature)
XX. XXXXX XXXXX DE XX XXXXXXXX XX. XXXXXXXX XXXXXXXXXX XXXXXXX
WITNESS WITNESS
THE PREVIOUS SIGNATURES CORRESPOND TO THE BUYING AND SELLING CONTRACT IN
INSTALLMENTS WITH RESERVATION OF DOMAIN, ENTERED INTO BY AMERICAN TELESOURCE
INTERNATIONAL DE MEXICO, S.A. AND IBM, DATED MARCH 25, 1997, CONTRACT NO.
S1310397-M.
Exhibit 10.21
(con't)
CREDIT CONTRACT BETWEEN FINAL USER AND IBM DE MEXICO,
COMERCIALIZACION Y SERVICIOS, S.A. DE C.V.
CREDIT CONTRACT ENTERED INTO, ONE THE ONE HAND, BY IBM DE MEXICO,
COMERCIALIZACION Y SERVICIOS, S.A. DE C.V., REPRESENTED BY XX. XXXXXXX XXXXX
XXXX, AND ON THE OTHER BY AMERICAN TELESOURCE INTERNATIONAL DE MEXICO, S.A. DE
C.V., REPRESENTED BY XX. XXXXXX X. XXXXX, WHO HENCEFORTH WILL BE CALLED "IBM",
AND THE "USER", RESPECTIVELY, IN ACCORDANCE WITH THE FOLLOWING STATEMENTS AND
CLAUSES.
S T A T E M E N T S
I. "IBM" SAYS, THROUGH ITS REPRESENTATIVE:
A. It is chartered as a corporation with variable capital, as is stated in
Public Writ number 51602, dated January first, 1997, granted before Notary
Public number 103 of the Federal District, and registered in the Public Property
and Commerce Registry of the same city, under mercantile folio number 218337.
B. Xx. Xxxxxxx Xxxxx Xxxx, attests his personality duly empowered through
Public Writ number 100695, dated March fifth, 1997, granted before Notary Public
number 116 of the Federal District, and the steps for its registry in the Public
Property and Commerce Registry of the same city are being taken.
D. That it is prepared to grant the "CREDIT" that the "USER" is requesting, and
that for its internal control effects, it has assigned number S1310397MC to this
CONTRACT.
E. It has acquired from the suppliers described in "ATTACHMENT A" of this
contract, the rights derived from the sale of products and services that these
last named entered into with the "USER" on the dates and invoices described in
the same "ATTACHMENT A", and that covers the price agreed on for
1
said operation, so that "IBM" has a legal interest to enter into this CONTRACT
with the "USER".
II. THE "USER" STATES THROUGH ITS REPRESENTATIVE:
A. That it is a corporation of variable capital, legally chartered in
accordance with the laws of Mexico, through Public Writ number 19977, dated June
twentieth, 1995, granted before Notary Public number 173 of MEXICO, D.F., and
registered in the Public Commerce Registry of MEXICO, D.F. under number 202960,
dated August first, 1995.
B. That its legal representative, Xx. XXXXXX XXXXX XXXXX, has sufficient powers
to sign the present CONTRACT, that have not been revoked nor amended in any
manner whatsoever, as can be seen in the Public Writ aforementioned in the
previous paragraph.
Once the above has been stated, both parties agree to bind themselves in
accordance with the following:
C L A U S E S
FIRST. OBJECT The present CREDIT CONTRACT establishes the terms and
conditions for payment of the products described in "ATTACHMENT A", regarding
the machines and devices, in accordance with the price and other relative
concepts detailed in the invoices, copies of which will be added to the present
instrument as "Attachment A" to form an integral part of the same.
In the amounts already mentioned, interests, expenses, and any other accessory
costs, that the "USER" must pay "IBM".
SECOND. PAYMENT TERMS AND CONDITIONS
The "USER" and "IBM" are agreed that the terms and conditions of the credit
referred to in the previous clause of this CONTRACT, will be the following:
2
TERMS AND CONDITIONS DOLLARS (U.S. CY)
DATE OF DISPOSAL AUGUST 01, 1997
1. PRESENT SELLING PRICE 542 900.00 USD
2. VAT ON PRESENT SELLING PRICE 81 435.00 USD
3. DOWN PAYMENT 20%* (1) 108 580-00 USD
4. TOTAL AMOUNT TO BE FINANCED (1+2+3) 515 755.00 USD
5. VARIABLE INTEREST RATE (VIR) 90 495.46 USD
VIR IS THE RESULT OF ADDING THE FOLLOWING:
A. LIBOR RATE (LONDON INTERBANK OFFERED RATE
B. POINTS AGREED ON
INITIAL VIR OF THIS CONTRACT IS:
LIBOR RATE 5.72%
POINTS AGREED ON 6.00%
INITIAL VIR 11.72%
6. COMMISSION FEE 1.00%* (1) 5 429.00 USD
7. TOTAL AMOUNT TO BE DOCUMENTED (4+5+6) 611 679.26 USD
8. NUMBER OF MONTHLY PAYMENTS 32 MONTHS
9. TOTAL MONTHLY PAYMENTS VARIABLE
10. VAT ON INTEREST AND COMMISSION FEE 15.00% OF (5) 14 628.41 USD
11. TOTAL MONTHLY PAYMENT VARIABLE
DEFERRED VALUE ADDED TAX PAYMENT
12. DEFERRED VAT ON OPERATION 83 033.29 USD
13. DATE OF PAYMENT OCTOBER O1, 1999
14. TOTAL AMOUNT OF OPERATION (-2+3+7+10+12) 736 486.16 USD
THIRD. COMMON INTERESTS
The "USER" must pay "IBM" a common interest for the amount of the "CREDIT" at a
variable interest rate, that will be calculated and paid in the terms and
conditions mentioned in Clause Second above, and "IBM" and the "USER" agree that
the amount outstanding subject of this contract will carry common
3
interest at a rate of 11.72% (ELEVEN POINT SEVENTY TWO PER CENT) PER ANNUM.
The variable interest rate will be raised or lowered, if there exists a
variation in the LIBOR rate for six months, in at least one percentage point.
In no case will this adjustment be applied retroactively.
FOURTH. MORATORIUM CHARGES
If the principal and interest are not paid when due, as of that date, the "USER"
will pay "IBM" moratorium interests at the rate that might ensue by multiplying
1.5 (ONE POINT FIVE) times the common interest rate set forth in Clause fifth
above during all the time that this situation exists. The interest that will be
generated will be paid monthly, in the terms of the following clause.
FIFTH. FORM OF PAYMENT
The "USER" undertakes to pay "IBM" the principal, interest, and other "CREDIT"
accessories in the following place and manner.
The "USER", without need of notification or previous collection, will make all
payments in IBM's address, stated in CLAUSE THIRTEENTH, in U.S. currency of
legal tender in the United States of America or its equivalent in national
currency, at the exchange rate prevailing on the date of payment, to cover
liabilities stated in foreign currency payable in Mexico, that will be published
in the Official Federation Daily on the same date of payment. In case that the
date of payment is not a working day or is a holiday, in accordance with bank
customs at the place of payment, the due date will be the working day
immediately before the date of payment.
4
The "USER" undertakes to pay totally the scheduled amortizations in accordance
with the pay schedule that is attached to the present contract as
"ATTACHMENT B". Said payments can be demanded on the 10TH (TENTH) of each month,
in accordance with the pay schedule that is attached to the present contract as
"ATTACHMENT B".
"IBM" can modify the place and form of payment if there are prevailing causes
that may demand it, and it will advise the "USER" in a timely manner in order to
safeguard the interest of the same, so that "IBM" will have the power of
designating another place of payment, previous written advice that it provides
the "USER" 5 (FIVE) working days before the date when said change goes into
effect.
In case that the "USER" makes payments referred to in the previous paragraph in
a different form that the one foreseen, the payment will be considered as not
having being made, and "IBM" can demand said payment together with the interest
in accordance with Clauses THIRD and FOURTH of this contract, and other
accessory payments that may accrue.
In any case, both parties agree that "IBM" can negotiate or transfer the total
or a part of the "CREDIT", and the notes payable that may be tendered in
accordance with the "CREDIT". In case of cancellation, occasioned by non
compliance of any of the USER's obligations in accordance with this contract,
"IBM" will consider mature in advance the notes payable corresponding in the
same terms.
If "IBM" does not receive payment in accordance with what has been established,
the "USER" will be considered in moratorium. The moratorium will be considered
as non compliance of the USER's obligations, and will be cause of cancellation
of the present CONTRACT by "IBM" without need of judicial action.
5
In case that "IBM" decides to cancel the present contract, the "USER" agrees to
pay "IBM" all expenses and costs that it may incurr to obtain payment or
recovery of the debt, including legal fees that it must pay.
SIXTH. ON THE SUPERVISION OF THE CREDIT
The "USER" must furnish the documents and information that "IBM" requests for
the follow up and supervision of the CREDIT.
SEVENTH. CAUSES OF EARLY MATURITY
"IBM" will have the right to declare an early maturity on the time limit for
payment of the credit, as well as interests and other accessories, through a
written notification addressed to the "USER", without need of litigation or
other judicial action, if any of the following cases occur:
A. If payment is not made when due of two or more of the payments agreed on,
whether of capital, interest or accessories.
B. If, for any length of time, for any reason, the USER's activities are
suspended, even though said suspension is due to strikes, labor stops,
etcetera.
C. If it does not comply with any other obligation agreed on, in this or in
any other CONTRACT that it may have entered into with "IBM".
The causes of early maturity established herein, are independent of those that
may be derived from law, so that they are descriptive, but no limitative.
EIGHTH. DOCUMENTS
The total amount of the credit is documented in this case through 32 (THIRTY
TWO) NOTES PAYABLE signed by the "USER", in favor of "IBM de Mexico,
Comercializacion y Servicios, S.A. de C.V.", that will be monthly and successive
maturities, in accordance with the pay schedule of "ATTACHMENT B". Likewise,
6
they contain the amounts of common interests that are generated and the
specification of the moratorium rate that they might generate, in accordance
with the statements of CLAUSES THIRD AND FOURTH, respectively.
Both parties agree that "IBM" will hand over to the "USER" the invoices
corresponding to the machines described in "ATTACHMENT A" at the moment that the
total amount of their prices plus the interest agreed on in this CONTRACT has
been paid.
The "USER" cannot yield the rights of this CONTRACT nor of the accessory
documents, without the previous written agreement of "IBM".
The "USER" undertakes to have the products mentioned in "Attachment A" at its
address, stated in CLAUSE THIRTEENTH, so that it cannot take them to another
place, except by previous written consent by "IBM". In view of this, the "USER"
will become a trustee of said products with all the obligations derived from
said position.
NINTH. PLEDGE
The "USER" guarantees his compliance of the obligations undertaken through this
CONTRACT under the terms of article 334 Clause 4iv and other applicable of the
General Law of Credit Instruments and Operations; therefore, the goods listed
in "Attachment A" of this CONTRACT will be affected as a pledge.
The value of the goods that make up the pledge at no moment should be inferior
to 143% of the USER's liabilities.
This pledge will be in effect while all are part of the capital, interests and
other accessories, or any other obligation chargeable to the "USER" remain
outstanding. The "USER" cannot lease, nor in exploitation the goods that make up
the pledge GRANTED in this contract, nor encumber them in favor of third
parties.
7
TENTH. INSURANCE
The "USER" will contract for its own account and without it been considered a
part of the price, an insurance policy against all risks (fire, earthquake,
floods, short circuits, violent and non violent robbery, etc.) covering the
machines described in "Attachment A" for the total value during all the time
that this CONTRACT is in effect, and the corresponding insurance policy will be
made out indicating the preferential endorsement in favor of "IBM DE MEXICO,
COMERCIALIZACION Y SERVICIOS, S.A. DE C.V."
This insurance policy will go into effect on the date that the machines are
delivered in the USER's facilities, and must be kept in effect until this
CONTRACT is finalized.
The "USER" must provide "IBM" evidence of the compliance with this obligation
within a time limit of 30 (thirty) natural days starting as of the date of the
signature of this instrument. In case that the "USER" does not comply with the
agreement of the previous paragraph, "IBM" will contract the respective
insurance policy, the "USER" binding itself to cover the amount of the same to
"IBM" or its representatives.
ELEVENTH. OTHER EXPENSES
The "USER" will pay "IBM" all amounts that may be caused by the registry of this
CONTRACT in the Public Registry of Property and Commerce.
TWELFTH. LAWS AND COURTS
For all things regarding the interpretation, execution, and compliance with the
present CONTRACT, both parties submit themselves to the jurisdiction of the laws
and courts of Mexico, Federal District, resigning expressly to the privileges
accruing to them by virtue of their present or future addresses.
8
THIRTEENTH. ADDRESSES
Both parties state as their addresses, the following:
"IBM": XXXXXXX XXXXXXX XXXXXXXX 000, XXXXXXX XXXXXXX CHAPULTEPEC, X.X. 00000
XXXXXX, XXXXXXXX XXXXXXX.
"USER": XXXXXX XXXXXX 0, XXXXXXX XXX XXXXX, XXXXXX, D.F., C.P. 06600.
Until such time as the "USER" provides a written notice to "IBM" of a change of
address, all citations and judicial or extrajudicial actions will be practiced
in the address stated in this clause.
BOTH PARTIES, HAVING READ AND APPRIZED THE CONTENTS AND LEGAL VALUE OF THE
PRESENT CONTRACT, RATIFY AND SIGN IT IN MEXICO, FEDERAL DISTRICT, ON THE 25TH
DAY OF MARCH, 1997.
ACCEPTED BY ACCEPTED BY
AMERICAN TELESOURCE IBM DE MEXICO,
INTERNATIONAL DE MEXICO, S.A. COMERCIALIZACION Y SERVICIOS,
DE C.V. S.A.
(Signature) (Signature)
XX. XXXXXX X. XXXXX XX. XXXXXXX XXXXX XXXXX
LEGAL POWER OF ATTORNEY LEGAL POWER OF ATTORNEY
(Signature) (Signature)
XX. XXXXX XXXXX DE XX XXXXXXXX XX. XXXXXXXX XXXXXXXXXX
XXXXXXX
WITNESS WITNESS
9
