EXHIBIT 10.31
SATELITES MEXICANOS, S.A. DE C.V.
AGREEMENT NUMBER 095-1
INTERNATIONAL LEASE OF SATELLITE CAPACITY AGREEMENT OF THE MEXICAN SATELLITE
SYSTEM, EXECUTED BY AND BETWEEN SATELITES MEXICANOS, S.A. DE C.V., HEREINAFTER
REFERRED TO AS "SATMEX", HEREIN REPRESENTED BY ENGINEER LAURO ANDRES GONZALEZ
MORENO AS ITS DIRECTOR GENERAL, AND TELESPAN, INC , HEREINAFTER REFERRED TO AS
THE "CUSTOMER", REPRESENTED BY CHARLES RANDY POOLE, ITS LEGAL REPRESENTATIVE, IN
ACCORDANCE WITH THE FOLLOWING RECITALS AND CLAUSES:
RECITALS
1. "SATMEX" STATES:
.1 That it is a corporation incorporated under Mexican Law as recorded in
Public Instrument number 51,371 dated June 26, 1997 executed before Lic.
Miguel Alessio Robles, Notary Public number 19 of Mexico City, and recorded
in the Public Registry of Property and Commerce under file number 226,109;
it's primary corporate purpose is the installation, operation, control and
exploitation of the Mexican Satellite System, via the occupancy and
exploitation of geostationary orbital positions and satellite orbits
assigned to the country, with their respective frequency bands and rights
to transmit and receive signals in the terms of the Federal
Telecommunications Law and the Communications Via Satellite Regulations.
.1 That pursuant to articles 11, section III, 29, second paragraph and
transitory fourth of the Federal Telecommunications Law and 7 of the
Communications Via Satellite Regulations, through concessions dated October
23, 1997 granted by the Minister of the Ministry of Communications and
Transportation a concession was granted to Satelites Mexicanos, S.A. de
C.V. to occupy geostationary orbital positions 109.2 degrees, 113.0 degrees
and 116.8 degrees longitude west for the exclusive exploitation of "C" and
"Ku" frequency bands and the rights to transmit and receive signals.
.1 That Engineer Lauro Andres Gonzalez Moreno, as the Director General, is
sufficiently qualified to execute this agreement, as evidenced by the
Transcript of Public Instrument No. 19258 dated November 26, 1997, granted
before Notary Public No. 102, of Mexico City, Lic. Jose Maria Morera
Gonzalez.
.1 That pursuant to Article 2 section VIII of the Regulations of
Communications Via Satellite, it has the status of a satellite operator,
which is defined as the person who, by a concession or assignment to occupy
geostationary positions or satellite orbits assigned to the country, with
their respective associated frequency bands, operates and exploits a
satellite system allowing it only to provide its satellite capacity to
third parties.
.1 That it satisfies the technical and economic conditions to undertake in
order to provide the service, subject matter of this agreement.
.1 That its Federal Taxpayers Registration number is SME 970626 MK5.
.1 That to exercise and comply with its rights and obligations hereunder, it
shows its domicile as Blvd. M. Avila Camacho 40, 23rd floor, Colonia Lomas
de Chapultepec, 11000, Mexico, D.F.
II "THE CUSTOMER" STATES:
II.1 That it is a corporation duly incorporated under the laws of the
state of Texas, U.S.A. as shown by its Corporate Charter 01481013 dated
February 26, 1998 granted by the Secretary of the
* CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
State of Texas Alberto R. Gonzales and duly certified with certificate
number N 147451 dated March 9, 1998 acting as Notary Public for the State of
Texas, Kathleen Keller and translated into Spanish by an authorized translator
designated by the Superior Court of Justice of the Federal District.
II.2 That Charles Randy Poole as its legal representative has sufficient
faculty to execute this agreement, as evidenced by a Unanimous Board of
Directors Resolution of Telespan, Inc. dated April 21, 1998 granted
before Notary Public Rubby E. Santiago of the State of Texas and
translated into Spanish by an authorized translator designated by the
Superior Court of Justice of the Federal District. .
II.3 That it presents a certified copy of the documents mentioned in the
preceding recital to allow "SATMEX" to verify their authenticity.
II.4 That it will timely notify "SATMEX" in writing of any modifications of
its corporate name and/or of the power of attorney granted to its legal
representative.
II.5 That it satisfies the applicable laws of the countries of within the
coverage of Solidaridad 2 for Region 2 in which it will operated the
service and has obtained from the respective Regulatory Entities the
authorization(s) required to install, operate or exploit the transmitting
and/or receiving earth station(s).
II.6 That it accepts the General Conditions for Provision of Signal Conduction
via Satellite through the Mexican Satellite System issued by "SATMEX"
(Addendum 1) as well as the Technical Addendum (Addendum II), which duly
signed by the parties, are attached hereto and form an integral part
hereof.
II.7 That it is familiar with the established legal framework both on the
national and international levels to which the provision of services,
subject hereof, are subject, and acknowledges to use said services and
abide by said legal framework, and undertakes to use the services
provided to it by "SATMEX" within the established legal framework in
order to satisfy its communication requirements.
II.8 That it desires to contract the rights and obligations hereunder in the
terms and conditions of the Clauses and Addenda of this agreement.
II.9 For the purposes of this agreement, it shows its domicile 12500 Network
Blvd., Suite 407, San Antonio, Texas USA.
Having stated the above, the parties agree to execute this agreement and comply
with the following.
CLAUSES
FIRST. "SATMEX" agrees to provide THE CUSTOMER with the
* CONFIDENTIAL lease of satellite capacity by assigning the space
PORTIONS HAVE segment on C Band Transponders *, in accordance with
BEEN OMITTED the terms, conditions, technical, legal and rate
AND FILED specifications contained in this agreement and its
SEPARATELY Addenda..
WITH THE
COMMISSION SECOND. "SATMEX" shall assign "THE CUSTOMER" the satellite
access frequencies and their respective operating
parameters based on the link budgets presented by "THE
CUSTOMER" to "SATMEX" for each receiving and/or
transmitting carrier that will accessed by its earth
stations forming its network.
"SATMEX" may modify the frequencies assigned to THE CUSTOMER, for justified
reasons or optimization of space segment on the satellite, by written
notice to "THE CUSTOMER" "THE CUSTOMER" agrees to make any changes within
an agreed time frame thereby freeing up the prior frequencies.
The satellite, band, coverage region, transponder, polarization, hook-
up points, satellite frequencies, operation parameters, location of
the earth stations, and antenna diameters are described in the Exhibit
II of this agreement. The Exhibit II will be updated when "THE
CUSTOMER" requests modifications or expansion of the contracted
service from "SATMEX", which must first be signed by both parties.
THIRD. "THE CUSTOMER" agrees to notify "SATMEX" in writing any changes and/or
modification of the names, titles, addresses, telephone number(s) and
fax number(s) of the technician(s) responsible for its satellite
network within five (5) days after such change and/or modification.
FOURTH "SATMEX" shall deliver to "THE CUSTOMER" in writing upon execution of
this agreement the frequencies and operating parameters.
FIFTH "THE CUSTOMER" will access and occupy the space segment contracted
with "SATMEX", with its own earth stations or a third party stations
that are part of this network and agrees to use it exclusively to
establish the public telecommunication network described in Addendum
II.
SIXTH The earth stations through which the services are to be provided must
satisfy the specifications and technical characteristics established
by "SATMEX" to operate with the Mexican satellite system having
fulfilled recommendation 580-2 of the CCIR (29-25 log) and operate
with frequency synthesizers and fractional ones. The above is
described in the technical memory of the network delivered by "THE
CUSTOMER" to "SATMEX"
SEVENTH For billing purposes, this agreement shall be in effect three (3) days
after the execution of the agreement even if "THE CUSTOMER" does not
have the necessary equipment to utilize the space segment.
EIGHTH. "SATMEX" will send the monthly billing for the contracted service to
the domicile shown by "THE CUSTOMER" within the first five (5)
business days of each month, which will be in advance. Billing will
be calculated by applying the corresponding tariff for the type of
service.
If "THE CUSTOMER" does not timely receive the invoice at its domicile,
it shall notify "SATMEX's" collection department in order to obtain
the data it needs to timely pay the bill. However, said situation
does not release "THE CUSTOMER" of its payment obligation.
NINTH. If "THE CUSTOMER" objects to any bill issued by "SATMEX", it shall
send a request for verification and/or adjustment in writing, stating
the reasons and causes for its objection, no later than within five
(5) working days following the date of receipt thereof. If its
objection is found to be correct, "SATMEX" will proceed to correct its
bill, extending the payment due date for the equal number of days that
elapsed between the original issued date and the corrected date.
In order to correct the said bill as soon as possible, "THE CUSTOMER"
agrees to provide all the necessary help to "SATMEX".
* CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION.
TENTH. "THE CUSTOMER" agrees to provide a bond to "SATMEX" to
guarantee payment for the service for * that is equal to three
(3) times the monthly invoice. Said bond shall be issued by a
* duly authorized Mexican institution with "SATMEX" as loss
CONFIDENTIAL payee.
PORTIONS
HAVE BEEN "THE CUSTOMER" agrees to deliver the said guarantee, within
OMITTED AND five (5) business days of execution of this agreement.
FILED
SEPARATELY The bond must contain the following written conditions by the
WITH THE institution providing the bond.
COMMISSION.
-That the bond be granted in the terms of this agreement.
-That in the event Addendum II is modified, "THE CUSTOMER"
shall make any adjustments necessary regarding the bond ,
within three (3) business days of any modification(s).
-That the bond will be in full force until "SATMEX" authorizes
in writing its cancellation.
-That it expressly submits to the jurisdiction and competency
of the Federal Courts of Mexico City, resigning to the forum
that would correspond due to its present or future domicile or
to other causes.
-That it expressly submits to the execution procedure foreseen
in Articles, 95bis and 118 of the "Federal Law of Bond
Institutions".
ELEVENTH. "THE CUSTOMER" agrees to pay "SATMEX", in advance, for the
service tariff number *
* CONFIDENTIAL
PORTIONS HAVE "THE CUSTOMER" agrees to pay by the fifteenth (15) day of each
BEEN OMITTED month. If "THE CUSTOMER" fails to make two (2) consecutive
AND FILED monthly payments, the service will be suspended. In order to
SEPARATELY WITH reactivate "THE CUSTOMER" must pay all outstanding invoices,
THE COMMISSION late payment fees and reconnections charges.
When "THE CUSTOMER" fails to pay two (2) or more monthly
payments, "SATMEX" may assign the capacity to another party.
TWELFTH. Late payment fees are calculated based on the rate resulting
from the sum of the Interbank Rate "TIE" issued by Banco of
Mexico, plus fifty percent (50%), in proportion to the number
of days of delay, divided between twelve (12) months on unpaid
balances of the monthly amounts owed.
Said fees shall apply from the day following payment due date
up to the day payment is received by "SATMEX".
THIRTEENTH. "SATMEX" shall only be responsible, for purposes of
compensation, for service interruptions for space segment or
of its own equipment, except for causes indicated in Paragraph
TWENTY.
In the event of a service interruption, "THE CUSTOMER" shall
immediately notify the "SATMEX" Satellite Control Center so
that it can determine the cause, correct the failure and
reestablish service; it shall also give written notice to
"SATMEX" so that, if applicable, and on the basis of the
technical report of the Control Center, the respective
compensation can be made as established in Addendum I.
"SATMEX" may interrupt the service whenever necessary to provide
maintenance to its installation or equipment, among others, in
coordination with "THE CUSTOMER" with no compensation due. In any
event, "SATMEX" will attempt to make the least interruptions in order
to cause the least damage possible to "THE CUSTOMER".
"SATMEX" will not be required to pay compensation for interruptions in
the service derived from the operation of earth stations not
authorized or technically approved and that cause interference.
FOURTEENTH. The effective term of this agreement shall be for three (3) years
from the date of execution of this agreement.
FIFTEENTH. "SATMEX" may at any time terminate the present agreement, without
liability, for justified causes or reasons duly justified and proven,
notifying "THE CUSTOMER" thirty (30) business days in advance.
"THE CUSTOMER" may cancel portion of its satellite capacity or
terminate this agreement, by notifying "SATMEX" in writing ninety (90)
business days in advance
In the event "THE CUSTOMER" cancels a portion of its satellite
capacity or terminates this agreement before the term has expired as
stated in Paragraph Fourteen, "THE CUSTOMER" shall pay "SATMEX" a one-
time payment before the date requested by "THE CUSTOMER" an amount
equal to the difference between the already paid and the tariff
corresponding to one year agreements for each month in which the
service was provided; in addition, at the same time "THE CUSTOMER"
shall pay an amount whichever is greater:
a) Twenty percent (20%) of the total payments unpaid from the date of
termination of this agreement up to the end of the original agreed
term. In the event the notification is given during the last third of
the original agreed term, the percentage shall be reduced to 15%, or
b) The monthly tariff applicable to one year agreements, for each
month remaining to conclude the original agreed term not exceeding
twelve (12) months.
In the event of partial cancellation the above mentioned payment shall
apply only to the capacity affected.
The termination date must be referenced as a calendar month (last day
of month).
The premature cancellation or termination of a service does not
release "THE CUSTOMER" from its obligation to pay outstanding amounts
or late payment fees.
"SATMEX" reserves the right to assign to another party the satellite
capacity released by premature termination the day following the
termination or cancellation date.
SIXTEENTH "SATMEX" may terminate this agreement for any of the following causes:
I. If "THE CUSTOMER" assigns this agreement to a third party without
previous consent in writing from "SATMEX".
II. If "THE CUSTOMER" fails to pay two (2) consecutive monthly
invoices or three (3) service interruptions during a one (1) year
period.
III. If "THE CUSTOMER" does not comply to the satellite access
parameters indicated by SATMEX.
IV. If "THE CUSTOMER" does not deliver in time and form the guarantee
stated in Paragraph Ten.
V. If "THE CUSTOMER" becomes the subject of bankruptcy, insolvency,
reorganization or liquidation proceeding or finds itself under any of
the conditions found in Article 2 of the Bankruptcy and Reorganization
Law.
VI. If "THE CUSTOMER" does not accept any relocation that "SATMEX" may
assign on its satellites.
VII. In general if "THE CUSTOMER" does not fulfill any of its
obligations of this agreements as well as its Addenda.
SEVENTEENTH. If "SATMEX" considers that "THE CUSTOMER" has incurred in any of
the causes of termination mentioned in the previous paragraph,
`SATMEX" shall notify `THE CUSTOMER" in writing. "THE CUSTOMER" shall
have fifteen (15) business days to respond. If "THE CUSTOMER" does not
respond or if after "SATMEX" has reviewed "THE CUSTOMER's" response
and "SATMEX" believes "THE CUSTOMER's" response is not satisfactory,
"SATMEX" shall issue its resolution.
In the event that "SATMEX" terminates this agreement, "THE CUSTOMER"
agrees to make the payment referred to in Paragraph FIFTEEN.
EIGHTEENTH. "SATMEX" shall have the option of applying a conventional penalty
in addition to the mentioned in Paragraph Fifteen in the event "THE
CUSTOMER" does not fulfill any of its responsibilities under this
agreement which shall not exceed 10% of the total monthly payment or
request that "THE CUSTOMER" because of its nonfulfillment payment for
damages resulted to "SATMEX".
NINETEENTH. In the event the parties do not agree, the representative elected
by "SATMEX" shall notify in writing "THE CUSTOMER's" representative
its objections immediately following detection so that both parties
may reach an agreement to resolve the dispute.
In the event the parties do not reach an agreement within ten (10)
calendar days, the parties may request the intervention of the legal
representatives of each party to reach an definite agreement regarding
the nonfulfillment or disagreement. In the event the legal
representatives do not reach an agreement, the parties shall proceed
to the established in Paragraph 23.
TWENTIETH. "SATMEX" shall not be responsible for specific but not unlimited
damages suffered by "THE CUSTOMER" or by third parties because of a
delay in delivery of the service, deficient operation that could occur
of the space segment as well as interruptions of service of the space
segment or equipment due to fortuitous events or force majeure.
TWENTY-FIRST. The parties agree to conserve all information and documentation
exchanged by the parties as strictly confidential except for (i) if
requested by the legal or administrative authorities or (ii) if such
information is considered to be public knowledge.
The parties may only utilize the confidential information only through
previous written consent from the other party.
TWENTY-SECOND. This agreement only covers the service provided by "SATMEX".
"THE CUSTOMER" agrees to obtain authorization or a license from the
proper authorities wherever the earth station(s) are located.
TWENTY THIRD. In the event of controversy regarding the fulfillment, contents,
interpretation and scope of this agreement as well as anything not
specifically stated herein, the parties agree to submit to the Federal
District civil court and the jurisdiction and enforcement of the
Federal Courts of Mexico City, waiving any other jurisdiction which
may correspond to them for reason of their present or future domiciles
or for any other reason whatsoever.
This agreement is executed in duplicate with each party receiving any original
in Mexico City on April 28, 1998.
SATMEX CUSTOMER
(SIGNATURE) (SIGNATURE)
ING. LAURO GONZALEZ MORENO CHARLES RANDY POOLE
PRESIDENT LEGAL REPRESENTATIVE
ADDENDUM I
SATELITES MEXICANOS, S.A. de C.V.
GENERAL CONDITIONS FOR THE PROVISION OF SATELLITE SIGNAL CONDUCTION VIA THE
MEXICAN SATELLITE SYSTEM.
General Conditions for the Provision of Satellite Signal Conduction via Mexican
Satellite System, in which Satelites Mexicanos, S.A. de C.V. hereinafter SATMEX,
shall provide the service via the satellites for which it has been granted a
Concession by the Mexican Federal Government.
CHAPTER I
GENERAL PROVISIONS
1st ARTICLE The purpose of this document is to set forth the general conditions
which will govern the service provided by SATMEX.
2nd ARTICLE The service which SATMEX will provide, consists of signal
conduction via satellite, on C and KU Bands of the Mexican
Satellite System, observing the provisions of its Concession
Certificate, the Federal Telecommunications Law, the Communication
Via Satellite Regulation, the Federal Law of Radio and Television
and its Regulation, the UIT Consitution and Agreement, the
International Telecommunications Regulation, International Treaties
on the subject matter approved by the Senate of the Republic, and
other administrative provisions on the subject matter.
3rd ARTICLE The definitions of the technical terms used in the contracts,
agreements or accords, shall be understood according to the
definitions contained in the documents indicated in above 2nd
Article, and any definitions issued by the Telecommunications
Standardization, Radio Communications sectors and the Development
of Telecommunications of UIT, as well as the Glossary of Terms used
in Telecommunications published by the Ministry of Communications
and Transportation through the Federal Telecommunications
Commission and/or Telecommunications of Mexico.
4th ARTICLE SATMEX will provide the service to establish a communication link
in national or international territory for customers who so
require. Customers have the responsibility to obtain the necessary
concessions, permits or authorizations from the Federal Mexican
Government or the authorities on the subject matter of each
country.
5th ARTICLE The earth stations and equipment to establish satellite links must
be authorized by the Ministry of Communications and Transportation,
must comply with Mexican Official Standards of technical
specifications for services related to the conduction of signals
between fixed points via the use of the Mexican Satellites. For the
case of earth stations located abroad, Recommendation 580-2 of CCIR
(29-25 log of 6) must be complied with.
CHAPTER II
PROVISION
6th ARTICLE The services will be provided under the following conditions:
Permanent - 24 hours a day, every day of the month or, less than 24
hours by the hour or fraction thereof, at the same time, during
every day of the month.
Occasional. For a determined time(s) of day and date(s) previously
established for that occasion(s).
For each of the foregoing, tariffs and regulations will be
established.
7th ARTICLE Permanent service will be provided based on three categories
according to continuity priority in the event of a contingency or
partial or complete breakdown of the assigned satellite, as
follows:
FULLY PROTECTED SERVICE. The service which has a total backup on
the same satellite or on another SATMEX satellite, except when the
failure is caused by the actions or failure of the customer to
fulfill SATMEX's conditions.
NON-INTERRUPTED SERVICE. The service whose transponder has backup
amplifiers and is not interrupted to give priority to a protected
service, but does not have in the event of failure immediate
protection on another transponder or satellite.
INTERRUPTED SERVICE. The service subject to interruption as
required at any time to give immediate protection to a protected
service and to a non-interrupted service since these are
priorities. In its normal operation the transponders has backup
amplifiers.
Each category of permanent service has a different tariff defined
in the Tariff Manual and Technical Addendum (Addendum II of the
corresponding agreement)
When requesting the service, the customer shall indicate to SATMEX
the band and the category of service it wishes to contract;
however,, each service category is subject to the availability of
the capacity of the space segment determined for each category at
the time of contracting. SATMEX will indicate to future customers
the availability of the space segment by category, tariffs and
conditions for the provision of the service.
The space segment for national security and social welfare has
maximum priority over any service category in the event of a
emergency.
Occasional service will be provided subject to availability of the
capacity to provide this type of service, for the dates and time
requested. SATMEX will attend to the demand for the space segment
for occasional services through the International Center for
Reserve and Programming of Occasional Services (Booking) .
8th ARTICLE. The space segment will be assigned based on information carriers
and standard transmission speeds, by complete transponder or by
fractions of bandwidth and/or transponder power, measured in
megahertz (MHz) and watt decibels (dBw), respectively.
9th ARTICLE. When contracting for the service, the client shall deliver a
technical memory describing the network, its topology, the earth
stations and equipment, access means to the satellite, the
required capacity and link budget for each carrier, according to
the format previously delivered by SATMEX. As well, SATMEX will
publish a technical manual of its satellites, with the technical
information, coverages, transponder parameters, sites, etc.,
required for customers to develop their network and calculate the
antenna diameter and link requirements.
10th ARTICLE. SATMEX, based on the requested capacity and the technical
information presented by the customer, shall assign the satellite,
transponder for each carrier contracted for, the transmission and
reception frequencies, polarization and operating parameters, such
as modulation, forward error correction (FEC), bandwidth (MHz),
and earth station power requirements (dBw).
The frequency receivers of the customers earth station must be
efficient and for kilohertz. The operation of equipment with
adjustable frequencies via crystals or with tuning limitations is
not recommended because this does not allow the relocation of
service in the event of interference and can also result in
greater consumption of the bandwidth chargeable to the customer.
11th ARTICLE. The technicians responsible designated by the customer to operate
its earth stations of its satellite network may not exceed the
normal parameters for access to the satellite assigned to each
carrier. The personnel of SATMEX Center for Primary of Alternate
Satellite Control of SATMEX, on detecting excesses, will
immediately coordinate with the persons responsible for the earth
station or the network, to make the necessary corrections. If the
customer does not make the required correction, the customer shall
be subject to fines for the use of excessive bandwidth or power or
for damages caused to other customers.
The fines will be for an amount resulting from applying the
highest rate for the affected bandwidth and/or power affected, in
addition to, if applicable, any compensation which SATMEX must pay
the affected customer or customers. Payment of fines does not
imply authorization to continue operating the service outside of
the assigned parameters for access to the satellite.
If the customer finds it necessary to operate with a higher level
of satellite power, it may request SATMEX to authorize (with link
budgets, and if authorized apply any adjustments to their invoice.
The customer will include in the technical memory of its satellite
network for each one of the earth stations that access the
satellite assigned to SATMEX, the domicile(s), responsible
technicians, telephone number(s) and facsimile (fax).
SATMEX, shall deliver to customer in writing upon execution of the
agreement, the access frequencies to the satellite and its
operation parameters.
12th ARTICLE. Prior to accessing the satellite, customer shall coordinate with
the Primary or Alternate Control Center the required technical
tests of their earth stations consistently with the procedure and
protocol established by SATMEX.
SATMEX will grant its customers a maximum period of three (3)
calendar days, at no cost, starting from the date on which they
are notified of the assignment of the space segment contracted
for, with the frequency and operating parameters, to allow them to
conduct the tests of their earth station(s) and adjustments, in
coordination with the Primary or Alternate Control Center.
At the conclusion of this period, irregardless of whether the
tests have been conducted, it will be understood that the service
has been made available to the customer and the billing period
will commence.
13th ARTICLE. The earth stations that do not satisfy the isolation, radiation
pattern tests or any other parameters that affect or can affect
other signals or satellites will not be authorized to operate with
the satellites until corrected without any liability for SATMEX.
As well, if an already approved earth station during its operation
produces interference to other signals will suspend its access until corrected.
In this case the customer must give the Primary or Alternate Control Center
assistance to eliminate such interference.
In the event the responsible party for the earth station(s) does
not fulfill the indications of the Primary or Alternate Control Center to
correct or deactivate the earth station producing the interference, the
customers shall pay SATMEX a fine in an amount equal to 1% of the monthly tariff
for each hour or portion thereof of delay.
In the event of earth stations that access a satellite for
occasional service, these earth stations must always coordinate testing and
power adjustments at least fifteen (15) minutes before the
hour indicated for the event. If this testing is not done, the Primary or
Alternate Control Center shall not allow access to the earth station.
The customer agrees to oversee the operating state of the earth stations
and that these do not produce interferences to its own signals, other customer's
signals o to other satellites.
ARTICLE 14. When a customer is affected in its signals by an unknown or
undetermined interference and that cannot be corrected
immediately, the customer shall have the option of being relocated
immediately to a free space to continue its communications.
This should be immediately reported to the monitoring area of the
Primary or Alternate Control Center so that they can coordinate with the
assignment area, and support any relocation activities. In this event, SATMEX
shall give the customer new frequencies and operating parameters either
temporary or definite.
Expenses implied by any relocation of frequencies shall be the
customer's responsibility.
ARTICLE 15. Any modification in service or relocation must be requested thirty
(30) days in advance and the corresponding technical memory and
link budget shall be included for the modified carriers or new
sites.
The customer must not make any changes without previous
coordination with SATMEX.
CHAPTER III.
AGREEMENTS
ARTICLE 16. To contract the service the customers must have a public network
concession or license as stated in articles 24 and 31 of the
Federal Telecommunications Law and in accordance with the
established in the Regulations for Satellite Communications. Any
concession or license shall be the customer's responsibility. A
copy of this document must be presented to SATMEX so that it
becomes an integral part of the agreement as an Addendum.
ARTICLE 17. Terms of the agreements will be specified in each document
executed by the customers in accordance with the following:
I. The minimum term shall be determined by the type of service
requested by the customer and shown in the corresponding
tariff.
II. The agreement for permanent services offered by SATMEX shall
have a 1 year minimum and three (3), five (5) and ten (10)
years for long term agreements. The agreements can be
terminated in the event of satellite failure and as long as
there is no replacement capacity.
For periods shorter that one (1) year, the rule indicated in the
respective tariff will apply.
III To calculate the term of the Permanent Service agreement, it
will be understood that it begins as of the day following the
date on which the agreement is signed.
IV Occasional services must be contracted at least six (6) hours
in advance on business days, except in the cases, indicated
in paragraph VI of this article.
V Customers may cancel any occasional service contracted, or
they may expand the time requested. In both cases, they will
be subject to the minimum payment or the surcharge indicated
by corresponding tariff.
VI Urgent occasional services will be provided if contracted
with less advance notice that indicated in paragraph IV,
provided that it is technically possible to supply
them, in which case a surcharge will apply of up to fifty
percent (50%) of the respective tariff.
In this case, the mere receipt of written communication from the
customer through its legal representative or technical
representative requesting the service will suffice to confirm the
provision of the service.
If SATMEX is technically unable to provide the requested service,
it will notify the customer by the most convenient method.
18th ARTICLE. The rights and obligations under the agreements may be assigned to
third parties by the customer with the prior express written
consent of SATMEX. For this, the new interested party must
subscribe and execute the relevant agreement.
19th ARTICLE. Customers are required to give written notice to SATMEX at least
thirty (30) business days in advance of any modification they are
going to make of its corporate name, change of domicile, legal
representative(s), telephone and facsimile (fax) number(s).
CHAPTER IV.
GUARANTEES
20th ARTICLE. SATMEX may, at its discretion, demand payment guarantees, which
will be specified in form and amount of each agreement.
CHAPTER V.
BILLING.
21st ARTICLE. The amounts that result from applying the contracted service rate
will be notified to customers monthly, indicating the amount,
form, place and date of payment, by an official invoice which will
be valid when it shows bank payment validation or SATMEX's stamp
evidencing payment. The invoice, with and exhibit itemizing the
charges applied, will be sent to the customer's domicile shown by
customer in the agreement. Invoices issued to customers with a
domicile in Mexican territory will be stated in domestic currency
and will include the value added tax (IVA). Invoices to customers
with domicile outside of Mexico will be stated in dollars, United
States of America currency, excluding Mexican taxes.
22nd ARTICLE. The amount stated in the monthly invoice for services provided
will be the result of applying the respective tariff to the class
of service contracted, pursuant to the provisions of SATMEX
Addendum II of the respective agreement.
When the rate is stated in United States of America dollars, for
its national currency billing, the exchange rate that is published
by "Banco de Mexico' at the closure of the last working day of the
prior month in which the service is provided shall apply.
23rd ARTICLE. When the magnitude of some of the concepts used to apply the
tariffs reflect fraction higher that those established in the
tariff, they will be converted to unit values, to the 10th or
100th, rounding them out upward to the immediately higher number,
as needed.
24th ARTICLE. As to the concepts used for applying the tariff that are in terms
of time (hours or part of and hour), they will be considered in
the form stated in the tariff applicable to the service
contracted.
25th ARTICLE. Invoices for the supply of permanent services will cover periods
of one calendar month, except when the service commences on a day
other than the first day of the month, in
which case the first invoice will cover the amount corresponding
to the number of days still remaining in said month in which the
service is provided.
26th ARTICLE. Public or private natural or corporate persons shall pay the
amounts shown in their monthly invoice no later than the fifteenth
(15) day of each month, at the places and times indicated by
SATMEX and/or stated on the invoice.
27th ARTICLE. If the customer does not timely receive the invoice at its
domicile in the first five (5) working days of each month, it
shall notify SATMEX's collection department in order to obtain the
data it needs to timely pay the bill. However, said situation does
not release it of its payment obligation, particularly in the case
of a monthly fixed charge. In every case, customer shall ask for
its outstanding balance from SATMEX's collection office.
CHAPTER VI.
PAYMENTS.
28th ARTICLE. SATMEX will publish a manual containing the tariffs and general
provisions authorized by the Ministry of Communications and
Transportation which are to be applied to the various public
satellite services, and will deliver a copy to the customer of the
tariff for the service contracted.
29th ARTICLE. Customers will make their payments to SATMEX for satellite
services provided at the banks authorized by SATMEX or directly to
SATMEX's cashier, within the following periods:
I Permanent services at a fixed monthly charge are to be paid by the
fifteenth (15) day of each month that the service is provided.
II Occasional services are to be paid before provided.
III Foreign-resident customers are to pay their invoices during the
period indicated in the first paragraph of this article and in the
same currency in which the invoice is presented.
Customers may arrange with SATMEX for other forms for making monthly
payments, such as an electronic bank transfer.
30th ARTICLE. If customer does not promptly pay its invoices, SATMEX will notify
the customer its outstanding invoices and apply late payment fees
beginning the next day following due date.
31st ARTICLE. SATMEX will at all times have the right to suspend the service in
the event of a failure to pay two months' bills. In the event of a
suspension, customer will have ten (10) business days to pay its
outstanding invoices; in order to reactivate the service, the
customer must first pay its outstanding amount, reconnection
charges and late payment fees.
CHAPTER VII.
COMPENSATIONS.
32nd ARTICLE. For purposes of compensation, SATMEX will be liable only for
service interruptions for space segment, except for acts of God or
force majeure.
SATMEX shall not have any responsibility for harm and damages
caused by interruptions of the service to the customer or third
parties.
33rd ARTICLE SATMEX will not be required to pay compensation for interruptions
of service caused by the operation of earth station(s), owned by
customer, for lack of authorization or not technically approved
that causes interference, as well as for the partial or total
suspension of a interruptible service for giving immediate
protection to a fully protected or non interrupted service which
has priority.
34th ARTICLE. In the event of an interruption in the provision of the service,
the customer shall immediately notify the SATMEX Control Center in
order to determine the cause, correct the failure and reestablish
the service; customer also agrees to give written notice to SATMEX
so that it may make the respective compensation if applicable
based on the Control Center's technical report.
The compensations will be considered from the date in which SATMEX
Control Center issues the confirmation report of the causes that
originated the interruption.
35th ARTICLE. Interruptions of the service provision imputable on SATMEX will be
compensated as follows:
I. In case of permanent services supplied during the 24 hours
of the day, only interruptions of three (3) continual hours
will be compensated. The compensation will be equal to one-
eighth of the billing for one (1) day. Part of an hour will
be computed as a full hour.
I. Occasional or periodic services provided for periods of
hours, half-hours or minutes: for each minute of
interruption, the compensation will be equal to the rate per
minute, applied to the number of minutes during which the
interruption persisted.
I. SATMEX will not consider requests for compensation when
the interruption results from negligence of the customer or a
breakdown of its apparatus and equipment, the maintenance and
operation whereof correspond to the customer.
I. Compensation, when applicable, will be credited to the
customer in the invoice payable of the second and third month
subsequent to the month in which the interruption occurred.
I. As to occasional services, if the customer requests a
suspension of already initiated service prior to the
conclusion of the contracted schedule, customer will not be
entitled to any compensation.
I. Refunds will proceed only when it is not possible to apply
the compensation to other periods or services of the
customer.
CHAPTER VIII.
PREMATURE TERMINATION.
36th ARTICLE. SATMEX may at any time terminate the agreement with no liability
on its part, for justified causes or for reasons duly motivated
and justified giving notice to customer thirty (30) business days
in advance.
37th ARTICLE. Customer may terminate the respective agreement, notifying SATMEX
in writing at least thirty (30) business days in advance for
short-term services, and ninety (90) business days in advance for
long-term services.
In the case of permanent services, if customer terminates the
service prematurely - that is, before the conclusion of the agreed
term, it shall pay, except where termination results from a
failure of the satellite and/or replacement capacity is not
available, the following penalties:
The amount resulting of the difference between the amount paid and
the monthly rate corresponding to one (1) year agreements for each
month that the service has been provided; and in addition the
customer shall pay in the same date the highest amount that
results from:
a) Twenty percent (20%) of the total payments unpaid from the date
of the termination until the end of the originally agreed term of
the respective agreement. If the termination occurs during the
second third of the term of the agreement, the percentage will be
reduced to fifteen percent (15%).
b) The monthly tariff corresponding to one year agreements for
each month until the conclusion of the original period of the
agreement, not to exceed twelve (12) months. Failure to give
notice referred to in the first paragraph of this article will
allow SATMEX to continue providing the service in the implied
manner, and charge the accounts in full for the ensuing months
until customer gives notice of renewal or termination, as the case
may be.
The cancellation or premature termination of a service does not
release the customer from prior debts or late payment fees.
SATMEX reserves the right to assign to other customers the
released satellite capacity on the next day following the
termination date.
38th ARTICLE. Agreements for occasional or periodic services may be terminated
in advance when the customer timely gives the termination notice
with the following periods:
1. If the service is canceled before ten (10) calendar days prior
to the date of the event, no charge will apply.
2. If the service is canceled between ten (10) calendar days and
forty-eight (48) hours prior to the event, a charge for the
equivalent of sixty percent (60%) of the price of the requested
service will be imposed.
3. If the service is canceled forty-eight (48) hours prior to the
event, or the service is not used, one hundred percent (100%) of
the price of the requested service will apply.
CHAPTER IX
CAUSES FOR TERMINATION
39th ARTICLE SATMEX may terminate a service agreement in the following events:
I. If customer assigns in any way the rights and/or obligation
derived of the corresponding agreement to third parties, without
the previous written consent by SATMEX.
II. If customer fails to pay two (2) consecutive bills for the
service provided or three (3) suspensions of said bills in a one
(1) year period.
III. If customer does not comply with the satellite access
parameters indicated by SATMEX.
IV. If customer does not provide the guarantee stated in article
20.
V. If customer becomes the subject of bankruptcy, insolvency,
reorganization or liquidation proceeding or finds itself under any
of the conditions found in Article 2 of the Bankruptcy and
Reorganization Law.
VI. If customer does not accept the relocation that SATMEX should
assign.
VII. In general, if customer fails to comply with any of the
obligations under the respective agreement, or its addenda.
40th ARTICLE. If SATMEX has elements to prove that customer has incurred in any
of the causes for termination, it will give written notice to
customer to such effect within fifteen (15) business days to allow
customer to assert its rights.
SATMEX THE CUSTOMER
(Signature) (Signature)
ING. LAURO ANDRES GONZALEZ MORENO CHARLES RANDY POOLE
PRESIDENT PRESIDENT
* CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION.
ADDENDUM II
INTERNATIONAL SERVICE OF
SIGNAL CONDUCTION VIA SATELLITE
GENERAL INFORMATION
Customer: TELESPAN, INC. R.F.C.
Address: 12500 NETWORK BOULEVARD, SUITE 407
City: SAN ANTONIO TEXAS USA Zip Code: 78249
Contract No. 095-I Date: Term: 3 years
Legal Rep: CHARLES RANDY POOLE
Telephone: (210) 558 60 90 Fax: (210) 558 60 95
TECHNICAL INFORMATION OF ASSIGNED CAPACITY
Type of Network: POINT TO POINT Bandwidth: * *
Type: PUBLIC Transponder Power CONFIDENTIAL
Satellite: * Band: C Service Category: Uninterrupted PORTIONS
Orbital Position: 113 degrees 0" Transponder: * Ranges: HAVE BEEN
Region: R1 Polarization: H/V Connectivity: R1/R1 OMITTED AND
No. of Carriers Freq. Speed (Kbps) Modulation FEC Access FILED
SEPARATELY
WITH THE
COMMISSION
Teleport: SAN ANTONIO TEXAS
TARIFF
Tariff No: 3
Term: * Monthly Charge: * USD * CONFIDENTIAL
Commencement Date: May 1, 1998 Termination Date: April 31, 2001 PORTIONS HAVE
BEEN OMITTED
Observations: Nominal bandwidth in accordance with applicable rules AND FILED
SEPARATELY
WITH THE
COMMISSION.
Mexico, D.F. April 28, 1998
SATMEX THE CUSTOMER
(Signature) (Signature)
ING. LAURO ANDRES GONZALEZ MORENO CHARLES RANDY POOLE
PRESIDENT PRESIDENT