English Translation
EXHIBIT 4(W)
LONG-TERM CAPACITY SUPPLY AGREEMENT EXECUTED BY AND BETWEEN, ON ONE PART, MAXCOM
TELECOMUNICACIONES, S.A. DE C.V. (HEREINAFTER `MAXCOM'), HEREBY REPRESENTED BY
XXXXXXX XXXXXXXX XXXXXXXXXX, AND, ON THE OTHER PART, AXTEL, S.A. DE C.V.
(HEREINAFTER `AXTEL') HEREBY REPRESENTED BY XXXXXXX XX XXXXXXXXXX XXXXXXX; BOTH
MAXCOM AND AXTEL SHALL BE JOINTLY REFERRED TO AS THE `PARTIES'; PURSUANT TO THE
FOLLOWING REPRESENTATIONS AND CLAUSES:
REPRESENTATIONS
I. MAXCOM REPRESENTS, THROUGH ITS LEGAL REPRESENTATIVE:
(a) That its principal is a corporation duly incorporated under the laws and
regulations of the United Mexican States, as evidenced with public
instrument number 86,115, dated February the 28th of 1996, executed before
Xxxxxxx Xxxx Xxxxx, Notary Public number 129 practicing in the Federal
District, duly recorded in the Public Commerce Registry for the Federal
District (Registro Publico de la Propiedad y del Comercio del D.F.), under
commercial page number 210585.
(b) That its legal representative has sufficient powers of attorney to execute
this agreement, as appear from public instrument number 56,631, dated
October the 11th of 2002, executed before Xxxxxx Xxxxxx Xxxx Xxxxxxxx,
Notary Public number 51, practicing in the Federal District, duly recorded
in the Public Registry of Commerce for the Federal District (Registro
Publico de la Propiedad y del Comercio del D.F.), and that up to date such
powers have not been limited, modified, or revoked whatsoever.
(c) That its main place of business is at Xxxxxxxxx Xxxxxxxx Xxxxxxxx Xx.
0000, Xxxxxxx Xxxxxx xx Xxxxxx Xxxxx Xx, X.X. 00000, Delegacion Xxxxxx
Xxxxxxx, Mexico, Federal District.
(d) That its principal holds a concession to install, operate, and exploit a
public telecommunication network, granted by the Secretariat of
Communications and Transportation (Secretaria de Comunicaciones y
Transportes) (hereinafter the "Secretariat") on December the 20th of 1996.
(e) That, for the purposes of the obligations derived from the execution of
this Agreement, it has enough administrative, human, and material
resources to render the services inferred from this same agreement.
(f) That, to the extent of his knowledge, no action, or procedure is pending,
nor it is threatened to be filed, with any judicial, administrative, or
any other kind of court, or with any governmental agency or arbitrator
against its principal that substantially, and
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 1 of 26
English Translation
adversely affects, or may affect, its assets, its financial, or operative
condition; nor any action exists that may affect the legality, validity,
or enforceability of this Agreement.
(g) That it has a telecommunication network formed by different elements,
amongst them an optical fibres system (hereinafter, the `MAXCOM NETWORK`)
that runs along the Route of Capacity indicated in EXHIBIT A to this
Agreement.
(h) That it has professional personnel and resources necessary to meet with
its obligations as provided in this Agreement, and also the financial
solvency to comply with its labor obligations according to the Federal
Labor Act (Ley Federal del Trabajo), Articles 10, 13 and 15.
II AXTEL HEREBY REPRESENTS, THROUGH ITS LEGAL REPRESENTATIVE:
(a) To be a corporation duly incorporated under the laws of the United Mexican
States, as evidenced in Public Instrument number 3,680, dated July the
22nd of 1994, executed before Xxxxxxx Xxxx xx Xxxx, Notary Public number
80 practicing in Monterrey, Nuevo Xxxx, duly recorded in the Public
Commerce Registry for the Monterrey, Nuevo Xxxx, with number 1,566,
commercial page 273, Vol. 417, book 3rd Second Clerk, Company Public
Instruments, Commerce Section, dated August the 5th of 1994.
(b) That its principal changed its corporate name through public instrument
number 1,719, dated March the 26th of 1999, executed before Xxxx Xxxx
Xxxxxx Xxxxxxxxxx, Notary Public number 120 practicing in Monterrey, Nuevo
Xxxx, duly recorded in the Public Commerce Registry by and for Monterrey,
Nuevo Xxxx, under commerce page 2182, Vol. 209-44, book 4, Third Clerk,
Miscellaneous Acts and Agreements, Commerce Section, dated March the 29th
of 1999.
(c) That its legal representative has sufficient powers of attorney to execute
this agreement, as evidenced by Public Instrument number 1,843, dated July
the 29th of 1999, executed before Xxxx Xxxx Xxxxxx Xxxxxxxxxx, Notary
Public number 120, practicing in Monterrey, Nuevo Xxxx, and recorded in
the Public Commerce Registry by and for Monterrey under the number 5516,
Vol. 209-111, book 4, Third Clerk, Miscellaneous Acts and Agreements,
Commerce Section, dated August the 3rd of 1999, and that up to date such
powers have not been modified or revoked whatsoever.
(d) That its principal holds two concessions to install, operate, and exploit
a public telecommunication network, granted by the Secretariat on June the
17th of 1996 and October the 7th of 1998.
(e) That, to the extent of his knowledge, no action, or procedure is pending,
nor it is threatened to be filed, with any judicial, administrative, or
any other kind of court, or with any governmental agency or arbitrator
against its principal that substantially, and adversely affects, or may
affect, its assets, its financial, or operative condition; nor any action
exists that may affect the legality, validity, or enforceability of this
Agreement.
(f) That it has professional personnel and resources necessary to meet with
its obligations as provided in this Agreement, and also the financial
solvency to comply with its labor obligations according to the Federal
Labor Act, Articles 10, 13, and 15.
III. THE PARTIES REPRESENT, THROUGH THEIR LEGAL REPRESENTATIVES:
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 2 of 26
English Translation
(a) That they executed a Letter of Intent (hereinafter the `LETTER OF INTENT')
dated September the 23rd of 2003, where they agreed to executed on or soon
before October the 15th of 2003 an Agreement to Supply Capacity of Long
Term.
(b) That accordingly they execute this Long-Term Capacity Supply Agreement.
(c) In accordance with the above, it is the desire of their principals to
execute this Agreement, and thus agree to bind themselves pursuant to the
following:
CLAUSES
FIRST DEFINITIONS.
1.1 The meaning given in this Clause to the following terms in capital letters
shall apply equally to both singular and plural forms of the terms defined and
shall include both masculine and feminine genders, unless otherwise defined in
this Agreement.
NOTICE OF TERMINATION shall mean as defined in Clause Thirteenth, paragraph 13.1
of this Agreement.
NOTICE OF EARLY TERMINATION shall mean as defined in Clause Fifteenth, paragraph
15.2 of this Agreement.
ACCEPTANCE OF STAGE shall mean as defined in Clause Sixth, paragraph 6.3 of this
Agreement.
EXHIBITS shall mean all and every one of the Exhibits hereto, which constitute
an integral part of this Agreement, and also any Exhibit mentioned herein.
AXTEL shall mean Axtel, S.A. de C.V.
FEES OF TERMINATION shall mean as described in Clause Fifteenth, paragraph 15.2
of this Agreement.
STM16 CITIES shall mean the following cities: Toluca, Mexico (POP Sta.
Xxxxxxxx), Queretaro, Xxxxxx, Irapuato, Xxxx, Guadalajara, Aguascalientes, San
Xxxx Potosi, Saltillo, Monterrey, Nuevo Laredo, and Laredo.
CAPACITY OR LONG-TERM CAPACITY shall mean the capacity will be provided by
MAXCOM to AXTEL under the terms set forth in this Agreement and Exhibits hereto:
(a) MAXCOM will provide AXTEL, through the MAXCOM Network, with a signal
in STM16 interface by a route and as described in the EXHIBIT A hereto
(the `ROUTE OF CAPACITY') in each of the STM16 cities, except for the
supply service of the borrowed capacity between the city of Puebla (POP
Animas) and Mexico City (POP Xxxxxxxxx) which is described in the
following subparagraph (b).
(b) MAXCOM will provide AXTEL from Mexico City (POP Xxxxxxxxx) to the city
of Puebla (POP Animas) through the Maxcom Network with signals in X0, X0,
DS3 or STM1 interface that all together add up to 2,488 (two thousand four
hundred eighty-
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 3 of 26
English Translation
eight) Mbps, without a possible interpretation of this capacity could be
rendered by an STM16 interface.
PROVISIONAL CAPACITY shall mean the provisional capacity that will be supplied
by Maxcom to Axtel in accordance with the Letter of Intent.
LETTER OF INTENT shall mean as described in Section III, Representations, of
this Agreement.
AGREEMENT shall mean this Long-Term Capacity Supply Agreement including the
Exhibits hereto.
WORKING DAYS IN LONDON shall mean as specified in Clause Fourth, paragraph
4.4.1, of this Agreement.
SPECIAL DWDM AND SDH EQUIPMENT shall mean the DWDM and SDH Equipment that will
be acquired by Maxcom from its provider to adjust the Capacity and will include
the following equipments:
a) 8 (eight) TWLA_FEC16 (DWDM) cards
b) 8 (eight) RWLA_FEC16 (DWDM) cards
c) 1 (one) TGU-EXT-0.37ppm (SDH) card
d) 1 (one) TOC (SDH) card
e) 1 (one) LTX-2.5/1.5SLH/FC (SDH) card
f) 1 (one) LRX-2.5/SLH/FC (SDH) card
g) 1 (one) SWT (SDH) card
h) 1 (one) SWR (SDH) card
i) 1 (one) LOC (SDH) card
j) 1 (one) LNC (SDH) card
k) 1 (one) PSF (SDH) card
SDH EQUIPMENT means the telecommunication equipment required to add and drop
telecommunication signals in X0, X0, XX0, XXX0, and STM4 interfaces. For the
purposes of this Agreement, the SDH Equipment includes the Initial SDH Equipment
and additional SDH Equipment. The technical specifications and guarantees for
the SDH Equipment are set forth in the EXHIBIT J hereto.
ADDITIONAL SDH EQUIPMENT means the SDH Equipment additional to the Initial SDH
Equipment that Axtel buys to Maxcom from time to time and by purchase orders
delivered to Maxcom during the validity of this Agreement.
INITIAL SDH EQUIPMENT means the SDH Equipment that Axtel binds itself to buy to
Maxcom according to this Agreement and that is described in the Exhibit B
hereto.
STAGES means jointly Stage I and the Additional Stages, and STAGE means any of
these.
STAGE I means the phase starting on the date of execution of this Agreement and
concluding on the date in which Maxcom delivers and provides the Capacity to
Axtel in Mexico City (POP Sta. Xxxxxxxx), Monterrey, Guadalajara, Xxxx, Irapuato
and Laredo, Texas, USA, pursuant to the terms and conditions established in this
Agreement.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 4 of 26
English Translation
ADDITIONAL STAGE means each phase starting from the Request for Additional Stage
and finishing with the delivery and supply of the Capacity by Maxcom to Axtel in
the city requested by Axtel on the Request for Additional Stage in accordance
with the terms and conditions in this Agreement.
DATE OF DELIVERY shall have the meaning attributed in Clause Sixth, paragraphs
6.2, of this Agreement.
FORCE MAJEURE shall have the meaning ascribed in Clause Twentieth of this
Agreement.
GUARANTEE shall have the meaning stipulated in Clause Fifth, paragraph 5.1, of
this Agreement.
GUARANTEE STAGE I shall have the meaning ascribed in Clause Fifth, paragraph 5.1
(1), of this Agreement.
GUARANTEE OF ADDITIONAL STAGES shall have the meaning attributed in Clause
Fifth, paragraph 5.1 (2) of this Agreement.
VAT means the Value-Added Tax in force by the time of the execution of this
Agreement and which is 15% (fifteen percent).
MAXCOM means Maxcom Telecomunicaciones, S.A. de C.V.
SERVICE LEVELS means the lower levels of quality that MAXCOM agrees to meet with
according to the Long-Term Capacity Supply Agreement and which are specified in
EXHIBIT "G" hereto.
PAYMENTS PAID BY AXTEL will have the meaning ascribed in Clause Fifteenth,
paragraph 15.3, of this Agreement.
PARTIES means jointly Axtel and MAXCOM, and PARTY means any of them.
DEMARCATION POINT means the female connector of the Optical Distribution Frame
(also called ODF) on the MAXCOM's side, owned by Axtel, and installed in the
MAXCOM sites. The female connector sets the limits of responsibilities between
Axtel and MAXCOM regarding the Long-Term Capacity Supply for the MAXCOM sites in
Guadalajara, Jalisco; Queretaro, Queretaro; Mexico City (POPs Xxxxxxxxx and
Santa Xxxxxxxx); and Puebla, Puebla (POP Animas). For the other cities,
DEMARCATION POINT means the female connector of the optic fibre distributor
(also called ODF) on the Axtel's side, owned by MAXCOM, and that sets the limits
of responsibilities between Axtel and MAXCOM regarding the Long-Term Capacity
Supply. Both Demarcation Points are described in EXHIBIT "F" hereto.
MAXCOM NETWORK shall have the meaning ascribed in Representations, Section I
(g), of this Agreement.
ROUTE OF CAPACITY shall have the meaning ascribed in Clause First, paragraph
1.1, of this Agreement.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 5 of 26
English Translation
LONG-TERM CAPACITY SUPPLY means the Capacity will be provided by MAXCOM to AXTEL
to conduct the telecommunication signals on the Route of Capacity specified in
EXHIBIT A hereto during a forced period of 13 (thirteen) years from the delivery
date of Stage I pursuant to the requirements, terms, conditions and Service
Levels set forth in this Agreement and the Exhibits hereto. Maxcom will deliver
the Capacity in Stages.
CAPACITY MAINTENANCE SERVICE means the services of maintenance on relation to
the Capacity that MAXCOM will provide to AXTEL in accordance with this Agreement
in order to the Capacity keeps in good conditions and operates according to the
Service Levels set forth hereunder during the validity of this Agreement.
INSTALLATION SERVICE means the service of installation and start-up of the
Capacity carried out by MAXCOM for the purpose of Supply the Long-Term Capacity
pursuant to this Agreement. In addition, it includes the installation and
start-up of Initial SDH Equipment provided that the service of installation and
start-up of Additional SDH Equipment is subject to Clause Fourth, paragraph 4.1
(3) of this Agreement.
TECHNICAL SUPPORT SERVICE OF THE SDH EQUIPMENT means the service of technical
support to the SDH Equipment described in the EXHIBIT "C" hereto and which
MAXCOM will provide to AXTEL.
REQUEST FOR ADDITIONAL STAGE means the request filed by Axtel to MAXCOM where
Axtel requests to Maxcom to start the implementation and delivery of the
Capacity in one of the cities specified in EXHIBIT "A" hereto. For this purpose,
MAXCOM will have a period of 8 (eight) weeks from the Request for Additional
Stage to deliver the Capacity in the requested city. The above is in accordance
with the terms of this Agreement. The Request for Additional Stage shall include
at least the essential engineering features of the Axtel's site where the SDH
Equipment will be installed and the Capacity will be provided, and also the
corresponding Guarantee of Additional Stage.
TEMPORARY SOLUTION shall have the meaning described in Clause Sixth, paragraph
6.4, of this Agreement.
LIBOR RATE shall have the meaning ascribed in Clause Fourth, paragraph 4.4, of
this Agreement.
TERM shall have the meaning provided in Clause Fifteenth of this Agreement.
Certain terms and phrases are defined in specific sections of this Agreement and
the Exhibits hereto.
The following Exhibits are included in this Agreement and are integral part
hereof:
EXHIBIT "A" DESCRIPTION OF THE MAXCOM'S ROUTE AND THE CAPACITY.
EXHIBIT "B" DESCRIPTION OF THE INITIAL SDH EQUIPMENT.
EXHIBIT "C" DESCRIPTION OF THE TECHNICAL SUPPORT SERVICE OF THE SDH EQUIPMENT.
EXHIBIT "D" COST FOR SDH EQUIPMENTS.
EXHIBIT "E" PROMISSORY NOTE FORM.
EXHIBIT "F" DEMARCATION POINT.
EXHIBIT "G" SERVICE LEVELS OF CAPACITY AND PENALTIES.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 6 of 26
English Translation
EXHIBIT "H" PROTOCOLS OF CAPACITY ACCEPTANCE AND TESTS.
EXHIBIT "I" PROCEDURES OF FAILURE ATTENTION AND SCALING.
EXHIBIT "J" TECHNICAL SPECIFICATIONS AND GUARANTEE OF THE SDH EQUIPMENT.
EXHIBIT "K" CAPACITY SCHEDULE.
1.4 If a discrepancy or inconsistency exists between this Agreement and any of
the Exhibits hereto, the terms and conditions of this Agreement shall prevail
over the Exhibits to the extent of the discrepancy or inconsistency.
SECOND. OBJECT. SERVICE SUPPLY, PROVISION OF EQUIPMENT AND MAINTENANCE SERVICE.
2.1 LONG-TERM CAPACITY SUPPLY. MAXCOM hereby binds itself to provide AXTEL
with the Long-Term Capacity Supply according to the specifications, terms,
conditions and Service Level set forth under this Agreement and the
Exhibits hereto. Such a Long-Term Capacity will be provided by MAXCOM to
AXTEL during a force period of 13 (thirteen) years starting form the
delivery date of Stage I, and AXTEL hereby binds itself to pay to MAXCOM
for the Long-Term Capacity Supply according to the costs and terms of
payment specified in this Agreement. Maxcom will provide the Long-Term
Capacity to Axtel in Stages pursuant to the provisions of this Agreement
and the Exhibits hereto.
2.1.1 The Parties agree that during the Term of this Agreement, Axtel is entitle
to the use, enjoyment and disposal of the Long-Term Capacity pursuant to
the law and this Agreement, including but no limited to the right of
telecommunication service supply described in the certificate of
concession hold by Axtel and according to the laws, regulations and other
provisions applicable in telecommunications. Axtel shall discharge Maxcom
from any damages that Maxcom could suffer due to the misuse of the
Long-Term Capacity by Axtel.
2.2 CAPACITY INSTALLATION SERVICE. MAXCOM hereby agrees to provide AXTEL with
the Capacity Installation Service in order to make the Capacity available
for AXTEL under optimal conditions of operations and according to the
Service Levels specified in this Agreement, and AXTEL hereby agrees to pay
to MAXCOM for the Capacity Installation Service in accordance with the
cost and terms specified in this Agreement. The Capacity Installation
Service also includes the installation and start-up of the Initial SDH
Equipment.
2.3 PURCHASE AND SALE OF SDH EQUIPMENT. MAXCOM hereby agrees to sell to AXTEL
the Initial SDH Equipment described in EXHIBIT "B" hereto and Additional
SDH Equipment that AXTEL needs from time to time by Purchase Orders which
will be considered on a case-by-case basis pursuant to the terms and
conditions specified in this Agreement, and AXTEL hereby agrees to buy the
Initial SDH Equipment to MAXCOM and the Additional SDH Equipment that
Axtel requires from Maxcom by means of Purchase Orders. The price of both
Initial SDH Equipment and Additional SDH Equipment and the terms of
payment shall be according to this Agreement or corresponding Purchase
Order.
2.4 CAPACITY MAINTENANCE SERVICE. MAXCOM agrees to provide the Capacity
Maintenance Service according to this Agreement and during the validity of
this
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 7 of 26
English Translation
Agreement, and AXTEL hereby agrees to pay for the Capacity Maintenance
Service to MAXCOM in accordance with the cost and terms of payment set
forth in this Agreement.
2.5 PROVISIONAL CO-LOCATION. MAXCOM agrees to provide on gratuitous loan to
Axtel the space required for the installation of the SDH Equipment in the
Maxcom telecommunication site located in Irapuato, the foregoing from the
delivery of Stage I up to on May the 31st of 2004. In the event that Axtel
needs to use such a space for longer, Axtel shall pay to Maxcom for
damages the monthly amount of US$5,000.00 (Five Thousand American Dollars
00/100), lawful currency of the Unites States of America, including the
Value-Added Tax, until Axtel leaves the specified space, plus the costs
that MAXCOM incurs to rent the space and additional facilities similar to
those occupied by Axtel.
2.6 TRAINING. MAXCOM agrees to provide Axtel with the training courses
described in EXHIBIT "K" hereto, the foregoing in accordance with the
schedules, contents and cost set forth by the EXHIBIT "K" hereto, without
additional cost for Axtel up to 10 (ten) people per each of the courses
enlisted in EXHIBIT "K".
2.7 TECHNICAL SUPPORT SERVICE OF THE SDH EQUIPMENT. MAXCOM agrees to provide
pursuant to the terms and conditions provided herein and during the
validity of this Agreement the Technical Support Service described in
EXHIBIT "C" hereto for the SDH Equipment, and Axtel hereby agrees to pay
MAXCOM the Technical Support Service of the SDH Equipment according to the
cost and terms of payment set forth in this Agreement.
THIRD. COSTS.
3.1 Axtel shall pay MAXCOM in the consideration of the Long-Term Capacity
Supply, the Installation Service, the Capacity Maintenance Service,
Technical Support Service of the SDH Equipment, and the purchase of the
SDH Equipment as follows:
(1) COST OF THE LONG-TERM CAPACITY SUPPLY:
Axtel shall pay Maxcom for the Long-Term Capacity Supply the amount
of [***], lawful currency of the United States of America, plus the
corresponding Value-Added Tax.
(2) COST OF THE CAPACITY INSTALLATION SERVICES:
(i) Axtel shall pay MAXCOM for the Long-Term Capacity Installation
Services the amount of [***], lawful currency of the United
States of America, plus the corresponding Value-Added Tax.
(3) COST OF THE CAPACITY MAINTENANCE SERVICES AND TECHNICAL SUPPORT OF
THE SDH EQUIPMENT:
(i) CAPACITY MAINTENANCE SERVICE. Axtel shall pay MAXCOM for every
year of Capacity Maintenance Service the amount of [***],
lawful
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 8 of 26
English Translation
currency of the United States of America, plus the
corresponding Value-Added Tax.
(ii) TECHNICAL SUPPORT SERVICE OF THE SDH EQUIPMENT. Axtel shall
pay MAXCOM for every year of Technical Support Service of the
SDH Equipment, which Axtel had acquired, the amount equivalent
to [***] of the cost of such a SDH Equipment; provided that
said cost shall be in force for the first 3 (three) years.
Therefore, starting from the fourth year MAXCOM will add to
the above mentioned cost and in the same rate any difference
raised by the change of the technical support fee that the
provider of such a SDH Equipment charges to MAXCOM from that
date.
(4) COST OF THE SDH EQUIPMENT:
(i) INITIAL SDH EQUIPMENT. Axtel shall pay MAXCOM the amount of
[***], lawful currency of the United States of America, plus
the corresponding Value-Added Tax.
(ii) ADDITIONAL SDH EQUIPMENT. Axtel shall pay MAXCOM for the
Additional SDH Equipment according to the cost established in
the EXHIBIT "D" hereto.
3.2 The costs specified in this Clause shall be in force during the validity
of this Agreement. Additionally, the costs specified in dollars, lawful
currency of the United States of America will be paid by Axtel to MAXCOM
alternatively in dollars, lawful currency of the United States of America
or in Mexican Pesos at the exchange rate in force on the date of payment
published by the Mexican Central Bank on the Official Gazette of Mexico,
including the corresponding taxes, whichever Axtel prefers.
3.3 The payment paid by AXTEL to MAXCOM includes all the costs and expenses
that MAXCOM incurs due to the Supplies, subject matter of this Agreement.
FOURTH. TERMS OF PAYMENT.
4.1 AXTEL shall pay MAXCOM the Long-Term Capacity Supply, Installation
Service, Capacity Maintenance Service, Technical Support of the SDH
Equipment and the purchase of the SDH Equipment according to the following
terms of payment:
(1) FOR THE CAPACITY INSTALLATION SERVICE:
(I) [***], lawful currency in the United States of America, plus
the corresponding Value-Added Tax, amount duly paid by Axtel
to MAXCOM on October the 2nd of 2003 in accordance with the
Letter of Intent.
(II) [***], lawful currency in the United States of America, plus
the corresponding Value-Added Tax on November the 3rd of 2003
at the latest.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 9 of 26
English Translation
(III) [***], lawful currency in the United States of America, plus
the corresponding Value-Added Tax on December the 15th of 2003
at the latest, provided that Axtel has accepted the Stage I.
In the event that the Stage has not been accepted, Axtel shall
pay the corresponding payment (which will generate no
interest) up to Maxcom meet with the delivery and acceptance
of the Stage I.
(IV) [***], lawful currency in the United States of America, plus
the corresponding Value-Added Tax on January the 5th of 2004
provided that without delays Maxcom has comply with the
delivery of the Stage I and/or the delivery of an Additional
Stage requested by Axtel whose delivery shall be done on or
before January the 5th of 2004. In the event that such Stages
have not been delivered or accepted, Axtel will pay the
corresponding payment (which will generate no interest) up to
Maxcom meet with the delivery of the Stage I and/or Additional
Stage, respectively.
(V) In the event that the delivery of any of the Stages is delayed
by causes not attributable to Axtel, Axtel shall pay Maxcom
the amounts due on the dates specified in the above
paragraphs.
(2) FOR THE LONG-TERM CAPACITY SUPPLY AND THE PURCHASE AND SALE OF INITIAL
SDH EQUIPMENT. Axtel shall pay Maxcom for the Long-Term Capacity Supply
and the Sale of Initial SDH Equipment, the amount of [***], lawful
currency of the United States of America plus the corresponding
Value-Added Tax to be payable as follows:
(I) [***], lawful currency in the United States of America, plus
the corresponding Value-Added Tax within the first 5 (five)
days of every month, starting from February 2004 up to 11
(eleven) monthly installments and a 12th (twelfth) monthly
installment up to the remaining amount to cover in full the
agreed amount.
(II) Axtel will pay the above installments provided that, without
delays, Maxcom has delivered any Additional Stage requested by
Axtel and whose delivery shall be precisely on or before the
date of the payment. On the contrary, Axtel will cover the
corresponding payment (which will generate no interest) up to
Maxcom meet with the delivery of the corresponding Additional
Stage.
(III) In the event that the delivery of any of the Stages is delayed
by causes not attributable to Axtel, Axtel shall pay Maxcom
the amounts due on the dates specified in the above paragraph.
(3) FOR THE PURCHASE AND SALE AND THE INSTALLATION OF ADDITIONAL SDH EQUIPMENT.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 10 of 26
English Translation
(I) The terms and conditions of payment as well as the guarantees
of payment that, if any, is required for the purchase and
sale, and the installation of the Additional SDH Equipment
shall be negotiated on a case-by-case basis and in the
corresponding Purchase Order.
(4) FOR THE CAPACITY MAINTENANCE SERVICE AND TECHNICAL SUPPORT FOR SDH
EQUIPMENT.
(I) CAPACITY MAINTENANCE SERVICE. Axtel shall pay quarterly to
Maxcom for the Capacity Maintenance Service the amount of
[***], including the corresponding Value-Added Tax. This
amount will be paid on a calendar quarterly basis in advance
within the first 5 (five) days of every quarter (January,
April, July and October of every year).
(II) TECHNICAL SUPPORT SERVICE OF THE SDH EQUIPMENT. Axtel shall
pay quarterly to Maxcom for the Technical Support Service of
the SDH Equipment that Axtel has acquired, according to the
cost of Annual Technical Support Service of the SDH Equipment
in force, in accordance with the previous Clause 3.1 (3). This
amount will be paid on a calendar quarterly basis in advance
within the first 5 (five) days of every quarter (January,
April, July and October of every year). In order to determine
the basis of the payment for the Technical Support Service of
the SDH Equipment, it shall be taken into account the SDH
Equipment already acquired and accepted at the beginning of
every three natural months. The SDH Equipment accepted by
Axtel during the first half of the corresponding quarter, will
be considered as a basis to specify the amount of the payment
for the Technical Support Service of the SDH Equipment
corresponding to such a quarter, therefore Axtel agrees to pay
the total amount of the quarterly payment for the Technical
Support Service of the SDH Equipment accepted on the following
date of the corresponding payment. The SDH Equipment acquired
and accepted by Axtel during the second half of the
corresponding quarter will be taken into account as a basis to
specify the amount of the payment for the Technical Support
Service of the SDH Equipment starting from the following
quarter.
(III) SPECIAL TERM FOR THE YEAR 2003. In the case of the Capacity
Maintenance Service and Technical Support Service of the SDH
Equipment for the year 2003, Axtel will pay Maxcom within the
5 (five) days after the date of delivery and acceptance of the
Stage I, the proportional part of the cost of Capacity
Maintenance Service and Technical Support Service of the SDH
Equipment corresponding, considering only the days when such
services are effectively delivered in the last quarter of the
year 2003.
4.2 AXTEL shall have no responsibility of paying MAXCOM any amount unless said
amount is expressly approved in these Agreement and AXTEL has received an
invoice for such charges. Every invoice issued pursuant to this Agreement
shall specify the concept for which the invoice is issued. No term or
condition of any invoice that is incongruent to the terms and conditions
of this Agreement shall be
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 11 of 26
English Translation
mandatory for AXTEL unless such term or condition has been expressly
agreed in writing by AXTEL.
4.3 FORM OF PAYMENT. Axtel shall make the payments by electronic transfer in
favor of Maxcom in the following bank account or any other that Maxcom
specifies in a prior and written notice at least 3 (three) business days:
Beneficiary: MAXCOM TELECOMUNICACIONES, S.A. DE C.V.
Bank: Bank of America, NT & XX
Xxxxxx: Concord, CA
Account: 62909-27058
ABA: 000000000
4.4 DEFAULT INTEREST. The default of payment from AXTEL to MAXCOM of any of
the amounts determined in this Agreement, apart from the above-mentioned
exceptions, shall generate (from the date where the amounts should be paid
to the effective date of payment) an annual default interest equivalent to
the interest rate that results from multiplying by 2 (two) the result of
adding the LIBOR Rate (as said term is defined below) 500bp (Five hundred
basic points, i.e., five points in percentage terms). For the purposes of
computing the default interest a year means three hundred sixty days
(360).
*4.4.1 LIBOR (London Interbank Offered Rate) means the annual rate of interest
offered by the main banks in the London interbank market 2 (two) working
days in London (as said term is defined below), before the date where the
computation should be done, that is published in the page 3750 (or the
page that replaces it in case of this page stops publishing) of the
TELERATE FINANCIAL INFORMATION SYSTEM monitor for the deposits in dollars,
lawful currency of the United States of America to 90 (ninety) days. The
referred rate will be make a round number in the case of being expressed
up to in hundred-thousandth, or more, of the percentage point to
ten-thousandth of the closer percentage point. For such purposes, five
hundred-thousandth of the percentage point will be considered the most
close to ten-thousandth of the immediate upper percentage point. `WORKING
DAYS IN LONDON' means any day of the year that the banks of the City of
London, England, are open to the public to carry out bank operations in
dollars, lawful currency of the United States of America.
FIFTH. GUARANTEE.
5.1 To guarantee the payment by Axtel to MAXCOM of the Initial SDH Equipment,
Axtel shall execute in favor of Maxcom the following non-negotiable
promissory notes with consecutive due dates (the `GUARANTEE'):
(1) NOTE - STAGE I (THE `GUARANTEE STAGE I'):
AXTEL shall deliver to Maxcom on the date of the execution of this
Agreement a promissory note according to the format included in the
EXHIBIT E hereto by an amount of [***], lawful currency of the
United States of America (including VAT). Said note shall have the
following terms of payment:
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 12 of 26
English Translation
(i) 8 (eight) monthly installments of [***], lawful currency of
the United States of America (including VAT) that will be
payable on the first 5 (five) days of every month starting
from February 2004.
(ii) 1 (one) installment of [***] lawful currency of the United
States of America (including VAT) that will be payable on the
first 5 (five) days of October 2004.
(2) PROMISSORY NOTES - ADDITIONAL STAGES (THE `GUARANTEES ADDITIONAL
STAGES'):
Every time that Axtel requests to Maxcom for an Additional Stage
shall deliver to Maxcom along with said request a note according to
the format enclosed in the EXHIBIT "E" hereto by an amount
equivalent to the price of the SDH Equipment corresponding to said
Additional Stage, except that SDH Equipment is already paid by
Axtel. For the purpose of setting the terms of payment of said note
the following criteria shall be considered:
(i) According to the above Section 4.1 (2), Axtel will pay 12
monthly installments for the SDH Equipments (Stage I and
Additional Stages) starting from February 2004 amounted up to
[***] lawful currency of the United States of America
(including VAT), each one, the first 8 (eight) installments
will apply in full to the Stage I and the ninth installment
will apply to the Stage I, amounts [***], lawful currency of
the United States of America (including VAT), the rest of the
installments shall, therefore, apply to the Additional Stages.
(ii) The installments to pay the SDH Equipment corresponding to the
Additional Stages shall start in October 2004, provided that
if a monthly installment cannot be paid the total amount of
said SDH Equipment ([sic] having as limit the amount of [***]
lawful currency of the United States of America (including
monthly VAT), the remaining will apply to the subsequent
payments.
(iii) The SDH Equipment including in the Additional Stages
(including VAT):
Puebla [***]
Toluca [***]
Aguascalientes [***]
San Xxxx Potosi [***]
Saltillo [***]
Nuevo Laredo [***]
-----
Total [***] Dollars
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 13 of 26
English Translation
(3) The amounts above mentioned include 15% VAT.
SIXTH. CAPACITY
6.1. The Parties agree that the Capacity delivered by Maxcom to Axtel according
to this Agreement is to provide the telecommunications services described
in the certificate of concessions of Axtel and in accordance with the
laws, regulations and other dispositions applicable in telecommunications.
Axtel shall discharge Maxcom from any damages that Maxcom could suffer due
to the misuse of the Capacity by Axtel.
6.2 Maxcom agrees to deliver to Axtel the Capacity operating and working
according to the terms and conditions set forth in EXHIBITS "A" and "H"
hereto, the foregoing provided that the Stage I will be delivered by
Maxcom to Axtel on December the 15th of 2003 at the latest (apart from the
installation of the STM4 cards to which the Exhibit "B" hereto refers, and
which will be dully installed on January the 15th of 2004 at the latest)
and in relation to the delivery of the Additional Stages, which Maxcom
will deliver to Axtel within the 8 (eight) weeks following to the date of
delivery of the Request for Additional Stage (the `DATE OF DELIVERY')
6.3 The Parties establish in the EXHIBIT H hereto the protocols of delivery
and acceptance of the Capacity, with which the Parties shall meet every
time that the Capacity is delivered (in the Stage I and in the Additional
Stages) (the `ACCEPTANCE OF THE STAGE').
6.4 In the event that the Acceptance of the Stage is delayed by causes
attributable to Maxcom according to the Dates of Delivery set forth in
this Agreement, Maxcom, in its sole discretion and at its own expenses,
shall have the obligation of providing Axtel with the capacity equivalent
to that required in the Stage not accepted or to cover the expenses in
which Axtel incurs to continue to said capacity, the above up to the
Acceptance of the Stage will give (la `TEMPORARY SOLUTION')
SEVENTH. SDH EQUIPMENTS AND PHYSICAL SPACES
7.1 During the Term of this Agreement, Maxcom grants to Axtel the right of use
a space without an additional cost in the sites that be required to
install a optic distributor (known as ODF) exclusively for the purposes
established in this Agreement. After Axtel reaches with its infrastructure
at the point specified by Maxcom, Maxcom ensures Axtel that the
connectivity of said infrastructure up to the Demarcation Point will be
achieved.
7.2 The installation of the SDH Equipments in the Maxcom sites will be the
responsibility of Maxcom.
7.3 The SDH Equipment that Maxcom sells to Axtel according to this Agreement
shall have and comply with the technical specifications and the guarantee
set forth in the EXHIBIT "J" hereto.
EIGHTH MAINTENANCE, SERVICES AND SURVEILLANCE OF THE SDH EQUIPMENT
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 14 of 26
English Translation
8.1 The Capacity Maintenance Service and the Technical Support Service of the
SDH Equipment shall be Maxcom's responsibility and carried out according
to the terms of the EXHIBIT "C" hereto.
8.2 Maxcom hereby guarantee Axtel that the Capacity delivered to Axtel
pursuant to this Agreement will be available during the validity of this
Agreement and will comply at any time during the validity of this
Agreement with the Service Levels determined in the EXHIBIT "G" hereto.
8.3 In the event of a default of the Capacity in any part of the Route of
Capacity, the Parties agree to follow the procedure of notice of default
and scaling described in EXHIBIT "G" hereto.
8.4 In order to have the right of access to the Maxcom sites, Axtel shall meet
with the Maxcom policies of access in force. Therefore Axtel shall request
a prior and written authorization to Maxcom at least 1 (one) hour in
advance.
8.5 During the validity of this Agreement, Maxcom shall be responsible for
monitoring and capacity of the DWDM equipments that Maxcom has installed
in the Maxcom Network.
8.6 Maxcom agrees to monitor Axtel's SDH Equipment from the date of
installation to January the 15th of 2004, provided that the Capacity will
be available in order to the Axtel's personnel take the Capacity before
December the 15th of 2003.
NINTH. EMPLOYMENT RELATIONSHIP.
9.1 The Parties hereto accept that for the Term of this Agreement, each Party
shall be in contact with the employees of the other Party. All the
employees of each Party shall be under the direction, supervision, and
control of said Party. Each Party shall be liable with respect to the
other Party, its representatives, employees, and officers, as well as with
respect to third parties, for the acts of its employees when rendering the
services. Each Party guarantees that it shall assure that its employees
comply with the provisions of this Agreement.
9.2 Each Party shall be responsible for all risks regarding its personnel,
particularly those risks derived from occupational injuries, traffic
accidents from or to the sites, as well as illnesses.
9.3 The Parties acknowledge that they are the only employer of the personnel
that each one employs by reason of the services rendered to the other
Party, and that are the subject-matter of this Agreement, and that they
are solely responsible for the obligations derived from labor, tax, and
social security laws, included the payment of wages, premiums, benefits,
withholdings, and government charges.
9.4 By reason of the above, each Party binds itself to release the other Party
of any labor, social security, or tax obligation derived from the hiring
of executives or employees for the performance of this Agreement. Each
Party is bound, at its own expense, to indemnify, defend, and hold
harmless the other Party and its representatives, employees, and officers,
from any action, claim, suit, or liability
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 15 of 26
English Translation
brought or filed against it or against them. The indemnity shall cover all
the expenses disbursed, which include, but are not limited to, reasonable
professional fees of lawyers and advisors, administrative expenses, as
well as the amount paid by reason of any award or judgment rendered
against it.
TENTH. CONFIDENTIAL INFORMATION
10.1 None of the Parties may, for the Term of this Agreement and during a term
of 2 (two) years after the Agreement is terminated, regardless of the
cause of termination, shall release or disclose to any third party, trade
secrets, or industrial or commercial processes, or any information
regarding the database, traffic reports, designs, planes, drawings,
models, lists of processes, systems, procedures, samples, computer data,
programs, or documentation, technical or business information that they
may give to each other, as well as their negotiations, and deals,
including, without limit, customers and potential customers that may have
been known by the other party, as well as any general information given to
each other in order to perform the subject-matter of this Agreement.
10.2 The Parties bind themselves, upon the termination of this Agreement, to
return all confidential information made available to them by reason of
this Agreement, or either, to expressly appoint any of its employees so
that in his presence all such information is destroyed.
10.3 The Parties hereto bind themselves not to release to a third party, except
in case of a request by a competent authority, the terms and conditions
contained in this Agreement, including those regarding the Rates.
10.4 In case any of the Parties breach the presumptions foreseen in this
clause, the Party in breach shall pay the affected Party the damages and
losses caused.
10.5 The Parties authorize to disclose the existence of this Agreement to
financial institutions, accountants, auditors, lawyers and advisers,
provided that agreements of confidentiality have been executed with said
institutions and advisers in similar terms to those set forth in this
Clause.
10.6 In case of, due to the regulations governing the Parties, the existence of
this Agreement needs to be released or disclosed to the public, the
Parties shall agree what type of information should be kept in strict
confidentiality, provided that this complies with the applicable legal
provisions.
ELEVENTH. INDEMNITIES.
11.1 Each Party shall indemnify, defend, and hold harmless, at its own expense,
the other Party as well as its officers, and directors, against any loss,
damage, liability, action or suit, including lawyers' fees, litigation
costs, that may arise out of, or derive from:
(a) The use or operation of the Capacity provided, in breach of the
provisions contained in its certificates of concession, permits and
applicable legislation.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 16 of 26
English Translation
(b) Any damage caused to the equipment, optical fibers or
telecommunication networks of the other Party.
(c) Any breach of the obligations stipulated in this Agreement,
including but not limited to the default of the Service Levels
according to the EXHIBIT G, or the non-observance of the applicable
legislation and regulations.
(d) Suits or claims from third parties derived from the relation with,
or caused by, this Agreement, that are responsibility of the other
Party.
11.2 Except as otherwise stipulated in this Agreement, no Party shall be liable
for the prejudices that it may cause to the other Party.
TWELFTH. NO LIENS.
12.1 No Party may constitute any lien over the capacity it receives from the
other Party. The rights of the Parties hereto may not be used as a
guarantee for any legal act. The Party that breaches the provisions of
this clause shall be liable for the damages and losses caused due to the
constitution of such lien.
THIRTEENTH. GROUNDS FOR RESCISSION DUE TO A BREACH.
13.1 RESCISSION OF AGREEMENT. In case any of the Parties breaches any of the
presumptions of default foreseen in the left column of the Table of the
Clause 13.2, the affected Party shall give a written notice of rescission
to the Party in breach so that it may cure or repair such breach within 30
(thirty) calendar days following said notice (the `NOTICE OF RESCISSION'),
on the understanding that if the Party in breach does not cure or repair
the breach during such term or it is not curable according to the
provisions of the Section 13.2 below, the Notice of Rescission shall take
legal and contractual effects on the following day of the period of 30
(thirty) calendar days hereunder. If the Party in breach does not cure or
repair the default within this period (in case that said default is
curable), the affected Party may demand the specific performance of this
Agreement or either, its rescission, without the need of any prior
judicial and/or administrative decision, by giving written notice thereof;
in any of these cases, the affected Party shall be entitled to the payment
of damages caused by such breach.
13.2 The following table shows the breaches and whether or not these can be
cured:
CAUSE OF BREACH OF THE AGREEMENT Whether or not curable
-------------------------------- ----------------------
(A) The breach of any of the obligations set forth It can be cured and is subject to the previous
in this Agreement, except of those specifically paragraph 13.1
foreseen in this Clause 13.2
(B) The issue of a definitive and unappealable Not curable
decision of revocation of its Certificate of
Concession, that affects the performance of this
Agreement
(C) Not to prolong the term of validity of its Not curable
Certificate of Concession on time and properly
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 17 of 26
English Translation
CAUSE OF BREACH OF THE AGREEMENT Whether or not curable
-------------------------------- ----------------------
(D) To initiate a dissolution or liquidation Not curable
process; to be subject to a meeting of creditors or
a bankruptcy proceeding; to be subject to an
administrative penalty which causes, or subjects it
to, any measure of governmental supervision, or to
incur in a situation of Force Majeure that causes
the inability to continue the performance of its
obligations during periods that exceed 2 (two)
subsequent months or, in whole, 3 (three) months
out of every 12 (twelve) months
(e) Default of the delivery of a Stage, provided Curable. In this case, the period to cure the
that Maxcom does not give to Axtel the Temporary breach shall be in accordance with the paragraph
Solution. 13.1 of this Agreement.
13.3 Once any of the grounds for rescission set forth in this Agreement takes
place, the Parties hereto bind themselves to return to each other all the
information, database, agenda, books, registries, customers' lists,
diskettes, computer programs, archives and, in general, all documentation
property of each one of them found under their possession or control, or
either, to appoint one of their employees so that said information is
destroyed in his presence.
13.4 In the event the rescission or termination of this Agreement takes place
in accordance with the provisions set forth herein, the following clause
will remain valid after the rescission or termination: Third, Fourth,
Fifth, Ninth, Tenth, Eleventh and others that due to their own nature will
remain valid after the rescission of this Agreement.
FOURTEENTH. CONVENTIONAL PENALTY
14.1 Both Parties acknowledge that the performance of the Service Levels agreed
in this Agreement and in the EXHIBIT "G" is a very important factor and
any default of said Service Levels could cause damages and losses to the
affected Party, whose quantification is not viable to do in this moment.
Therefore, in case any of the Parties breaches the agreed Service Levels
shall pay to the affected Party for a conventional penalty the amount
specified in the EXHIBIT "G". The payment of such amounts does not
discharge the Party in breach from its obligation of complying its
obligations.
FIFTEENTH. TERM OF THE AGREEMENT
15.1 This Agreement shall be in force from the date of execution of this
Agreement and continue in force for a period of 13 years starting from the
Date of Acceptance of Stage I (the `TERM'), and it only can be rescinded
pursuant to the provision set forth in the previous Clause Thirteenth and
the following paragraph 15.2.
15.2 During the validity of this Agreement, Axtel shall be entitled of
terminating early this Agreement giving Maxcom a written notice at least
30 (thirty) calendar days before the date of termination (the `NOTICE OF
EARLY TERMINATION'), provided that before the
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 18 of 26
English Translation
conclusion of the above-mentioned period Axtel pay Maxcom the following
(the `FEES OF TERMINATION'):
(1) In case the Notice of Early Termination is given before the delivery
of the Stage I, Axtel shall pay for the following:
(a) EXPENSES FROM INSTALLATION AND FITTING-OUT OF THE PROVISIONAL
CAPACITY. For the expenses derived from installation and
fitting-out of the Provisional Capacity that Maxcom has
delivered pursuant to the Letter of Intent, the amount of
[***], lawful currency of the United States of America, plus
the corresponding Value-Added Tax.
(b) RENT OF THE PROVISIONAL CAPACITY. For every month of use of
the Provisional Capacity starting from the time that Maxcom
delivers it to Axtel to the date of termination of this
Agreement, the amount of [***], lawful currency of the United
States of America, plus the corresponding Value-Added Tax; the
above, provided that it is the desire of Axtel to continue to
use the Provisional Capacity, Axtel shall pay Maxcom the
amounts corresponding to the rent of the Provisional Capacity
specified in the Letter of Intent.
(c) SALE OF THE INITIAL SDH EQUIPMENT. Axtel shall pay Maxcom for
the Initial SDH Equipment, in its sole discretion, i) the
amount of [***], lawful currency of the United States of
America, plus the corresponding Value-Added Tax for the
purchase of the Initial SDH Equipment or ii) the amount of the
penalty incurred due to an earlier cancellation of the
purchase of the Initial SDH Equipment that the manufacturer of
the SDH Equipment charges for the earlier cancellation of the
purchase of the Initial SDH Equipment.
(d) ADJUSTMENT SERVICES. A sole amount of [***] lawful currency of
the United States of America, plus the corresponding
Value-Added Tax.
(e) ADJUSTMENT EQUIPMENT. Axtel shall pay Maxcom for the Special
DWDM and SDH Equipment that Maxcom acquires from its provider
to adjust the Capacity, in its sole discretion:
i) the amount of [***], lawful currency of the United
States of America, plus the corresponding Value-Added
Tax for the purchase of the Special DWDM and SDH
Equipment; or
ii) the amount of the penalty from the earlier cancellation
that the manufacturer of the Special DWDM and SDH
Equipment charges for the earlier cancellation of the
purchase of said Special DWDM and SDH Equipment;
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 19 of 26
English Translation
iii) In the event that Axtel has decided to buy the Special
DWDM and SDH Equipment, Maxcom shall grant to Axtel the
right of preference in order to in the case Maxcom
requires to buy DWDM and SDH equipments, Maxcom shall
request firstly the purchase and sale of said equipment
to Axtel, provided that the terms and conditions of the
purchase and sale of said DWDM and SDH equipment occur
under similar circumstances to those offered in writing
by third-parties to Maxcom.
(2) In case the Notice of Early Termination is given after the delivery
of the Stage I, Axtel shall pay for the following:
(a) EXPENSES FROM INSTALLATION AND FITTING-OUT OF THE PROVISIONAL
CAPACITY. For the expenses derived from installation and
fitting-out of the Provisional Capacity that Maxcom has
delivered pursuant to the Letter of Intent, the amount of
[***], lawful currency of the United States of America, plus
the corresponding Value-Added Tax.
(b) USE OF THE CAPACITY. For every month of use of the Capacity
starting from the delivery of the Stage I by Maxcom to Axtel
to the date of termination of this Agreement, the amount of
[***], lawful currency of the United States of America, plus
the corresponding Value-Added Tax.
(c) SALE OF THE INITIAL SDH EQUIPMENT. Axtel shall pay Maxcom for
the Initial SDH Equipment, in its sole discretion, i) the
amount of [***], lawful currency of the United States of
America, plus the corresponding Value-Added Tax for the
purchase of the Initial SDH Equipment or ii) the amount of the
penalty incurred due to an earlier cancellation of the
purchase of the Initial SDH Equipment that the manufacturer of
the SDH Equipment charges for the earlier cancellation of the
purchase of the Initial SDH Equipment.
15.3 APPLICATION OF THE PAYMENTS. The Parties agree that to pay the Fees of
Termination above mentioned it shall be applied to its payment
automatically all and every payments that Axtel has made to Maxcom
according to the terms of this Agreement, including the payments for the
installation of the Capacity, the Long-Term Capacity Supply, and the Sale
of the SDH Equipment, but excluding the payments for the Capacity
Maintenance Service and Technical Support Service of the SDH Equipment
that Axtel has paid Maxcom (the `PAYMENTS PAID BY AXTEL'), provided that
if after the adjustment mentioned in this section has been done, there is
a balance against Axtel, Axtel shall pay Maxcom the remaining balance
payable to Maxcom before the termination of the period of 30 (thirty)
calendar days specified in the previous section 15.2.
Additionally, in case that after the Payments paid by Axtel have been
applied to the Fees of Termination, there is a balance in favor of Axtel
remaining from the
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 20 of 26
English Translation
Payments paid by Axtel pursuant to this Agreement, the amount not applied
to the Payments paid by Axtel to the Fees of Termination shall be
reimbursed by Maxcom to Axtel on or before the termination of the period
of 30 (thirty) calendar days specified in the previous section 15.2.
SIXTEENTH. RESPONSIBILITIES
16.1 Each Party expressly acknowledges that it shall be responsible as far as
the Demarcation Point and according to the scheme specified in the EXHIBIT
"F" hereto. Likewise, both Parties shall guarantee the operation and
compatibility of their infrastructure, as well as the adoption of measures
to prevent causing damages to the Telecommunication Network of the other
Party.
16.2 Maxcom reserves the right of modifying the currently defined sites where
the Demarcation Points are located by prior written notice to Axtel at
least 60 (sixty) calendar days before the modification takes place. In
said presumption, each Party, at its own expenses, shall cover the costs
incurred by the Party to move its infrastructure to the new site where the
new Demarcation Point should be established.
16.3 None of the Parties shall be liable for any misuse, negligence, fraudulent
use, use contrary to specifications and/or non-authorized use that the
other Party may make of its facilities, line(s) and/or telecommunication
equipment, be either through its officers or employees, or through any
third party that may have access either directly or indirectly to the
same. Both Parties shall adopt the pertinent measures to prevent such
acts, and shall be responsible henceforth to indemnify, defend, hold
harmless, at its own expenses, the other Party that is affected regarding
any claim that may be brought in this regard by third-parties, including
but not limited to any administrative, judicial or other kind of
authority.
SEVENTEENTH. NOTICES.
17.1 Under the terms of Article 34 of the Civil Code for the Federal District
(Codigo Civil para el Distrito Federal), for everything regarding or
related to this Agreement, and regarding all notifications, communications
or notices that the Parties must give in compliance to the same, they
shall make them in written along with an acknowledge of receipt, and for
their delivery, they indicate the following as their addresses for notices
and contact numbers:
FOR MAXCOM:
Maxcom Telecomunicaciones, S.A. de C.V.
C. Xxxxxxxxx Xxxxxxxx Xxxxxxxx No. 2000, PH
Col. Xxxxxx xx Xxxxxx Xxxxx Xx
Xxxxxx, X.X, X.X. 00000
Phone (00) 0000-0000
Fax (00) 0000-0000
To the attention of: Xxxxxxx Xxxxxxxx / Direccion Regulatoria
Electronic mail xxxxxxx.xxxxxxxx@xxxxxx.xxx.
FOR AXTEL:
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 21 of 26
English Translation
Axtel, S.A de C.V.
Boulevard Xxxxxxx Xxxx Xxxxx Xx 3.33 L-1
Colonia Unidad San Xxxxx
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Mexico, CP 66215
Phone: (00) 0000-0000
Fax: (81) 8114-1919 ext. 1175
To the attention of: Xxxxxxx xx Xxxxxxxxxx Xxxxxxx
Electronic mail:
Cc Departamento Juridico
17.2 The notifications shall become effective from the business day following
to its receipt, provided the receipt of said notification is acknowledged.
17.3 In case any of the Parties changes its address, it shall notify so in
written to the other Party at least 48 (forty-eight) hours in advance.
Otherwise, it shall be understood that the notices, notifications or
communications that must be given under this Agreement shall become
legally effective in the last address that was informed to the other
Party.
17.4 Likewise, the Parties agree that as long as Axtel or Maxcom does not
notify a new electronic mail address in written to the other Party, the
information that the Parties have agreed to send by electronic mail (apart
from the Notice of Rescission and the Notice of Termination) shall be
deemed as received, for all pertinent legal purposes, in the last
electronic mail address provided by each one of the Parties.
17.5 For the purposes of the Notice of Rescission and the Notice of
Termination, the Parties hereby agree that said notices should be
delivered, as it corresponds, in written to the address (as it is the
case) specified in the previous section 17.1.
EIGHTEENTH. RELATIONSHIP BETWEEN THE PARTIES.
18.1 Nothing in this Agreement shall be considered nor construed as
constituting MAXCOM and Axtel as partners, agents or employees of the
other, and none of the provisions in this Agreement shall be construed as
holding liable the other Party for any debts, liabilities and obligations
of the other Party. MAXCOM and Axtel hereby agree not to initiate, nor
take any action, or carry out anything that (i) would create an obligation
for the other Party, or (ii) that would make any third party believe that
one of the Parties is the representative of the other Party, or that it is
authorized to act in the name and behalf of the other party. Without
limiting the foregoing, none of the Parties may take actions of any kind,
nor assume obligations or liabilities in the name of the other party,
except for those expressly indicated or allowed under the terms of this
Agreement.
18.2 This Agreement essentially represents a business agreement, since both
Axtel and Maxcom are business corporations that have sufficient elements
of their own to perform each and every one of the obligations with respect
to their employees and workers arising out from the Federal Labor Law (Ley
Federal del Trabajo), the Mexican Institute of Social Security (Instituto
Mexicano del Seguro Social), the
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 22 of 26
English Translation
National Institute for the Funds of the State Workers (Instituto Nacional
para el Fondo de los Trabajadores del Estado), and other similar
legislations.
NINETEENTH. TAXES.
19.1 Those taxes that, according to the tax legislation in force, are incurred
by the Parties shall be paid individually by each Party. Each Party shall
be responsible for the total taxes, fees and tax burdens or credits, or
any other contribution that, according to the tax legislation in force,
may correspond to it over any property or services it acquires, use,
leases, or lends. The Parties hereto acknowledge that they shall be
responsible to observe the provisions of the tax legislation in force
regarding taxes that must be paid through withholdings. The Parties agree
that they shall provide the documentation, and support required by each
Party, deemed necessary to allow this Party to carry out its deductions or
compensations, to process refunds or to evidence tax incentives in its
favor, under the applicable legislation in force. If applicable, the
Parties shall agree on the payment of taxes, and import duties.
TWENTIETH. FORCE MAJEURE.
20.1 None of the Parties shall be liable for any breach of its obligations
described in this Agreement, if said breach is due to an act of God or
force majeure (as it is defined in the Section 20.3), therefore said
obligation may be suspend during said event. The Party that breaches one
of its obligations due to an event of Force Majeure, shall notify in
written to the other party about said condition, within the three days
following to the event of Force Majeure happens, describing the nature of
the event and explaining why some obligations should be suspended on a
temporary basis. Only the obligations affected directly by the event of
Force Majeure shall be resolved as soon as reasonably possible and the
obligations affected should be performed after the event of Force Majeure
ends or is resolved.
20.2 There shall be no suspension of obligations even though an event of Force
Majeure occurs, in case that the party affected by the event of Force
Majeure has intentionally caused or promoted said event, or has
intentionally made the situation worse, or if the applicable law forces
this party to comply with this Agreement even in case of there is a event
of Force Majeure.
20.3 The term `Force Majeure' used in this clause and for the purposes of this
Agreement means and refers exclusively to the events that happen or are
caused as a result of fires, explosions, tornados, floods, earthquakes,
volcanic activities, epidemic, civil riots, wars or any other event that
is out of the scope and control of the party affected by the Force
Majeure, provided that any of said events make impossible the performance
of some obligations of any of the Parties. Notwithstanding the events of
Force Majeure are limited to the events expressly mentioned in this
paragraph, the parties acknowledge that strikes, seizures and/or any
suspension of works derived from any judicial or administrative procedure
shall not be considered as events of Force Majeure.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 23 of 26
English Translation
TWENTY-FIRST. CONVEYANCE OF RIGHTS.
21.1 None of the Parties may convey nor assign the rights and obligations
arising from this Agreement without the prior consent in written from the
other Party. The assignee shall be subject, unconditionally and in its
entirety, to the terms and conditions set forth herein. Any conveyance or
assignment of rights carried out in breach of the provisions of this
clause shall be deemed as reasonable grounds so that the Party affected
rescinds this Agreement, without any liability and without the need of a
prior judicial decree.
21.2 Notwithstanding the above mentioned, AXTEL authorizes Maxcom to assign the
rights of collection derived from this Agreement, provided that there is a
written notification made before a Notary Public at least 5 (five)
calendar days in advance and provided that said assignment do not include
different terms and conditions to those specified in this Agreement or
major liens or cost (including tax withholdings or any kinds of liens or
legal burden) for AXTEL.
TWENTY-SECOND. REPRESENTATIONS AND GUARANTEES.
22.1 Each of the Parties hereto represents and guarantees that:
(a) It has full rights, as well as the authorization, to execute,
notarize, deliver, and perform its obligations under this Agreement.
(b) That the notarization of this Agreement and the performance hereof
does not violate any regulations, rules, provisions, or laws of any
federal, local or state agency, court or body.
(c) That the execution of this Agreement does not violate or goes
against the agreements, covenants, or pacts to which they are a
party, nor does it violate or goes against or beyond its bylaws
(ultra xxxxx acts), nor does it violate or goes against any
governmental provision, permit, concession, or authorization, nor
violates or goes against any judgment or judicial decree.
TWENTY-THIRD. INSURANCE
23.1 Each Party shall take out, at its own expenses, any insurance that it
deems appropriate in accordance with the correct coverage, to protect its
properties, as well as any insurance that may be necessary to face acts of
Gods and obligations foreseen in the law, due to this Agreement, including
the General Liability Insurance coverage (Occurrence Form) for damages to
third parties, either themselves or their properties, covering the General
Liability, including the clauses of products, activities and real states
in relation of the line of business and works done, up to the limit of
responsibility of at least [***], lawful currency of the United States of
America. In this Civil Liability insurance, each Party shall include an
endorsement to its policy specifying that the other Party shall be
considered as third party at any time.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 24 of 26
English Translation
23.2 Both Parties agrees to keep their Liability insurance in effect during the
validity of this Agreement and provide the other Party with evidence of
the coverage required herein, delivering a certificate or copy of the
insurance policy, as well as the endorsement above mentioned and the proof
of payment of the insurance policy on or before 30 days after the
execution of this Agreement.
23.3 Each Party shall be liable for the payment of the premiums and deductible
corresponding to the insurances purchased by the Party to comply with this
Clause Twenty-Third.
TWENTY-FIFTH. GENERAL PROVISIONS:
25.1 The Parties agree that the nature of this Agreement is not exclusive for
any of them, and thus they shall have the right, at all times, to execute
similar agreements with other telecommunication suppliers.
25.2 The terms defined herein, written in upper case, shall have the meaning
assigned to them. The terms defined herein in singular, shall also have a
plural meaning, and the terms defined in plural, shall also have a
singular meaning.
25.3 The lack or delay by any of the Parties to enforce at any time any
provision hereof, shall not be construed as a waiver to the right of
enforcing said provision, or the right of said party to subsequently
enforce such provision, or any other provision herein contained.
25.4 All the terms shall be understood as falling on a calendar day, except
when stipulated otherwise, and the dates that fall on a non-business
banking day shall be automatically moved to the immediate following
banking business day, for all pertinent effects.
25.5 The exhibits mentioned herein, duly identified with the signature or
initials of the parties, have been attached hereto to become an integral
part of this Agreement.
25.6 The titles and headings of the clauses are inserted for convenience only,
and do not form part of this Agreement.
25.7 The provisions of this Agreement shall be considered by separate, and the
invalidity of any of its provisions shall not affect the validity of the
remaining provisions.
25.8 This Agreement constitutes the full covenant and understanding of the
parties regarding the subject-matter of this agreement, and renders null
and void any prior covenant, discussion, and understanding between the
parties regarding the subject-matter of this Agreement.
25.9 No amendment, modification or assignment of this Agreement shall be
binding upon the parties, unless it is made in written, whereby it is made
express reference to this Agreement, and is signed by a duly authorized
representative from both parties.
TWENTY-SIXTH. GOVERNING LAW.
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 25 of 26
English Translation
26.1 This Agreement shall be subject to the terms and conditions set forth by
the Parties hereto. This Agreement shall be governed by the Commerce Code
(Codigo de Comercio) and by those other applicable laws in Mexico.
TWENTY-SEVENTH. JURISDICTION AND VENUE.
27.1 For anything regarding this Agreement, including its interpretation,
performance and execution, the Parties hereto expressly agree to submit
themselves to the jurisdiction of the Courts in Monterrey, Nuevo Xxxx, or
in Mexico City, Federal District, in the sole discretion of the claimant
Party, and thus, they expressly waive any other venue that may correspond
to them by reason of their current or future address, or due to any other
cause.
Once the parties understood the scope and legal effects of this Agreement, they
sign it in three counterparts in Monterrey, Nuevo Xxxx, on October the 15th of
2003.
MAXCOM TELECOMUNICACIONES, S.A. DE X.X. XXXXX, S.A. DE C.V.
--------------------------------------- --------------------------------------
HEREBY REPRESENTED BY HEREBY REPRESENTED BY
[SIGNED] [SIGNED]
-------- --------
XXXXXXX XXXXXXXX XXXXXXXXXX XXXXXXX DE XXXXXXXXXX XXXXXXX
WITNESS WITNESS
[SIGNED] [SIGNED]
-------- --------
BY: XXXXXXX XXXXXXX I. BY: XXXXXXXX XXX CHAVEZNAVA
Portions of this Exhibit indicated by [***] have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 26 of 26
